BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
• capacity and consensus between the parties; and • the existence of a valid marriage. Since August 2024, by decision of the National Council of Justice, if the couple have minor or incapacitated children in common, the issuance of a public deed of divorce will be permitted – provided that the prior judicial resolution of all issues relating to their custody, visitation and alimony is duly proven, which must be recorded in such deed. A lawyer or public defender assists the parties. In an extrajudicial or administrative divorce, there is no secrecy of justice, and the content is accessible to third parties because it is carried out in the form of a public deed. The extrajudicial or administrative modality is therefore a faculty of the spouses and, even if the requirements demanded for the extrajudicial or administra - tive route (which is faster) are fulfilled, the par - ties can opt for a consensual judicial divorce, as this modality guarantees the secrecy of justice according to its terms and conditions. Judicial divorce Divorce, even if consensual, must be processed before the judiciary and decreed by a judge when it involves incapacitated persons, minors and/or unborn children. The agreement must, therefore, consider: • custody and co-residence of the parents with their children; • maintenance for dependent or unborn chil - dren; • the waiver or payment of maintenance to the
The agreement may also consider the division of assets, according to the regime adopted. The public prosecutor’s office acts in the matter as a custos legis (“law inspector”). In the absence of consensus, the divorce will be litigious and processed before the judiciary. Even when a divorce is litigious, the request for it does not need cause or justification. In the presence of incapacitated children or minors and unborn children, the public prosecu - tor’s office acts as a law inspector. When there is no consensus, one of the parties initiates the processes involving requests for: • divorce, which may be combined with sharing assets; • custody and co-parenting of the children; and • alimony or maintenance for the children. These processes are always represented by a lawyer and/or public defender and are not linked to each other, but distributed freely, according to procedural rules. This means that they can be analysed at different times and by different judges. Once the judge who must analyse and decide on any preliminary measures – for example, block - ing of assets, alimony, custody and co-exist - ence of children – has received the case, the opposing party will be cited and summoned to defend themselves and/or attend a prior hearing, accompanied by a lawyer or public defender for the attempted composition. If there is no agree - ment, the process follows its own rite, with the presentation of defence, production of evidence, hearing of the instruction and court decision, and appeals, etc.
ex-spouse/partner; and • the use of the surname.
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