‎Divorce in Brazil

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The step by step of divorce in Brazil

Initially, we have Law No. 11,441 / 07, anyone who wishes to obtain a divorce by consensus, that is, by mutual agreement, and does not have children under the age of 18, can request the separation directly at the registry office.

This type of divorce is called extrajudicial divorce and is made through a public deed, which will contain the provisions relating to the sharing of the couple's common assets. In such cases, divorcees agree with all the terms of their separation and do it in a simple way.

However, when the divorce starts to present some kind of contradiction, be it in relation to the goods - material division, or some other form, it will become a litigious divorce.

This time, if there is a dispute, that is, a disagreement between the parties, it is not possible to carry out the divorce at the registry office. Thus, for this specific case, it is necessary that the separation be made in court. In this case, the couple can also opt for direct separation, at any time, regardless of the minimum period of marriage or previous separation.

So, here is a spreadsheet to better visualize the basic difference between the two types of divorces, otherwise let's see:

Consensual Divorce Judicial Divorce

- There are no minor children; - There are minor children;

- The couple agrees with the separation of assets; - There is discussion about the separation of assets, custody

- Extrajudicial divorce in notary's office. - Judicial divorce in court.

Therefore, before looking for a lawyer, the parties must be sure of what they really want, with a lot of conversation and planning, to try the best form of separation, as well as the fastest and most advantageous way.

Thus, below is a list of questions and answers to better assist doubts about separation and divorce:

1) What documents are needed to file the lawsuit?

The documents required for the separation are: marriage certificate, prenuptial agreement (if any), children's birth certificate, proof of the existence of the properties and their values. When the process is not amicable, evidence of misconduct on the part of the other person is added to justify the request for separation, such as police reports, criminal investigations, photos, recordings, medical certificates and aggressive emails.

2) Under what circumstances is it possible to ask for the separation?

Physical or moral aggression, abandonment of the home, criminal activities, idleness, alcoholism, all these are reasons to require a separation - even if the spouse does not want to. In such cases, the separation process can begin even before the separation of bodies. Pension and custody will also be defined, provisionally, by the judge.

Remembering that, at any time and for any reason, separation can be requested by both spouses.

3) How is the alimony paid in divorces calculated?

Contrary to what the name says, the pension is not only related to the supermarket invoice amount. It covers the sum of money the spouse needs to maintain the same standard of living that he or she had during the marriage.

4) Who gets the property in the event of a separation?

The sharing of assets depends on the regime adopted at the time of the wedding. Being them:

i) Separation of assets - Each has full control over the assets acquired before or after the marriage. The same goes for debts.

ii) Universal communion - All goods, even those existing before marriage, belong to both and must be divided fifty-fifty.

iii) Partial communion - Only the assets acquired after the wedding will be divided, fifty-fifty.

iv) Participation in aquestos - The new Civil Code allows the patrimony constituted during the marriage to be divided according to the contribution that each one gave to its formation - hence the complicated name. Example: if in the purchase of the apartment the woman contributed with the equivalent of one third of the value, she will be entitled to one third of the property at the time of separation. The new Code also provides that the property regime can be changed at any time during the marriage, provided that reasonable justifications are presented to a judge.

5) How does the decision about custody of the couple's children happen

When the couple is unable to reach an agreement, the decision rests solely with the judge, who will take into account the children's well-being when determining who they should stay with and what the frequency of visits will be. Well-being means that those who are going to stay with their children must have emotional balance and sufficient physical space to shelter them. If there is a record of psychological disorders, alcoholism or mistreatment by one of the parties, custody will be mandatory on the other.

6) Guard: Shared x Alternate:

When there is no agreement between those responsible for the custody of the child, with both parents being able to exercise family power, shared custody will be applied, unless one of the parents declares to the magistrate that he has no desire in custody of the child.

Thus, the legislation now provides for 02 (two) types of custody, which are:

i) Shared custody - when the child or adolescent lives with one of the parents, but there is no regulation on visits, nor even limitations on access to the child in relation to the person responsible. Decisions are taken together and both share responsibility for raising and educating their children.

ii) Unilateral custody - it is when the child lives with a parent and the parent has custody and makes the decisions inherent to its creation. Thus, the other parent has the right to visits, a prerogative that is regulated by the judge. Finally, the alimony, fixed by agreement between the parties or by the judiciary, becomes the obligation of the person in charge who has the right to visit.

7) How does the separation of couples that did not formalize the union work?

Anyone who has not married “in the past” has the advantage of being able to separate informally, as it is a stable union. However, in long-term relationships where assets and children are in common, if the couple does not separate by mutual agreement, they will also have to appeal to the courts, as in a formal marriage. The main difference is that, before the separation process begins, it is necessary to prove the existence of the union through an initiative called action of recognition and dissolution of a stable union. For the division of goods, the partial communion regime generally applies.

8) On average, how long is a divorce formalized by the courts?

In litigious separations, the process can drag on for many years. At a first hearing, the judge listens to both parties to try to reconnect. From then on, the separation process begins, with the presentation of defenses and evidence, instruction and trial hearings, until an agreement is reached or the judge decides to make the separation official.



Mr. Alessandro Jacob speaking about Brazilian Law on "International Bar Association" conference

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