BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
Other Processes to End a Marriage Although it is not configured as divorce, but as an option for ending a marriage, there are legal hypotheses of annulment and nullity in the act. According to the law and the Brazilian Civil Code, civil marriage can be considered null or voidable, as follows. • Null – where the following parties have mar - ried: (a) ascendants with descendants, whether natural or civil kinship; (b) in-laws in a straight line; (c) the adopter with the adoptee’s spouse and the adoptee with the adopter’s spouse; (d) siblings, unilateral or bilateral, and other collateral, up to and including the third degree of kinship; (e) the adoptee with the adopter’s child; (f) already married persons; or (g) the surviving spouse with the person convicted of murder or attempted murder of their spouse. • Voidable – in the following cases: (a) either of the parties have not reached the minimum age to marry; (b) the parties to the marriage are minors of marriageable age, but are not authorised by their legal representative; (c) the marriage is contracted under wilful misconduct (eg, error or coercion); (d) a party to the marriage is incapable of consenting or unequivocally expressing consent; (e) the marriage is performed by an agent, without the agent or other contracting party knowing of the revocation of the mandate, and where there is no co-habi - tation between the spouses; or
A prior mediation hearing is not required for sub - sequent access to the judiciary. Citation and Subpoena The rules for service of process and subpoena on the opposing party in family actions are pro - vided for in Article 695 of the Brazilian Civil Pro - cedure Code. Article 695 establishes, in sum - mary, that the writ of service will contain only the data necessary for the hearing and must not be accompanied by a copy of the complaint. It must ensure the defendant the right to examine its contents at any time and, in order to be valid, the summons must occur at least 15 days before the date designated for the hearing and be served on the person of the defendant. If there is no agreement after the due legal proce - dure and hearing involving the public prosecutor (in cases where there are incapacitated persons, minors, and/or unborn children), the magistrate will issue a decision to decree the divorce and deliberate on the other matters addressed in the process. In the litigious processing of the sen - tence, an appeal can be made. Religious Marriage As long as it does not contradict the rules of public law, religious marriage may be recognised – as long as it is registered within 90 days of its celebration – before the State (civil registry) as a civil marriage for the purpose of producing civil effects of religious marriage and therefore it may be dissolved by divorce, according to the secular rules of the legal system. In Brazil, there is no religious divorce before the State, because there is separation between the State, which is secular, and the various religions practised in the Brazilian territory.
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