BRAZIL Law and Practice Contributed by: Cassio Namur and Roberta Toledo, Tortoro, Madureira & Ragazzi Advogados
Determination of Jurisdiction Pursuant to Brazilian civil procedural law, actions in the consensual or litigious modality will be proposed: • at the domicile of the guardian (even factual) of an incapacitated child; • in the last domicile of the couple, in the absence of an incapacitated child; • at the defendant’s domicile, if neither party resides at the couple’s former domicile; or • at the victim’s home in the case of domestic and family violence. These are hypotheses of internal territorial juris - diction, and the interested party will be able to contest them, because they are not alleged ex officio by the judge. Regarding the sharing of assets located in Brazil, the Brazilian judge has absolute jurisdiction, in view of the principle of national sovereignty. Nationality As for nationality, the Brazilian judicial authority may prosecute and judge actions in which the party, whatever their nationality, is domiciled in Brazil. Therefore, once the interested party is established in Brazil, the divorce will follow the rites of Brazilian procedural law. As for jurisdiction, an action filed before a foreign court does not lead to lis pendens – that is, it does not prevent the Brazilian judicial authority from hearing the same case and related ones, even if already initiated in some other interna- tional jurisdiction. There is, therefore, concur - rent competence for the discussion of divorce, except for actions related to the sharing of assets located in Brazil, which are the absolute competence of the Brazilian judge, even if the
holder is of foreign nationality or is domiciled outside Brazil. The lis pendens of the case before the Brazilian jurisdiction does not prevent the ratification of a foreign court decision when required to produce effects in Brazil. Contest of Jurisdiction The jurisdiction for the divorce may be contested if it is proved that neither of the parties resides or is domiciled in Brazil, even if the marriage took place in Brazil and/or if one of the parties is Bra - zilian. In the matter of division, jurisdiction may be contested if it can be proved that there are no assets located in Brazil. As for judicial custody and maintenance, Brazilian jurisdiction may be contested if it can be proved that the child is not resident or domiciled in Brazil and is living abroad. In this case, even if they are nationals, the Brazilian judge will not be able to analyse the actions and the jurisdiction may be contested. Therefore, for the purposes of Brazilian law, it is residence and domicile that determine jurisdic - tion, not nationality. According to Article 23 of the Brazilian Civil Pro - cedure Code, it is incumbent upon the Brazilian judicial authority – to the exclusion of any other – to proceed with the sharing of assets located in Brazil, even if the holder is of foreign national - ity or is domiciled outside the national territory. Regarding this rule, there is no prior requirement to initiate the action involving the discussion of assets arising from the marriage or common law marriage. It is sufficient to enter the measure that may be accompanied by injunctions. 2. Financial Proceedings 2.1 Choice of Jurisdiction
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