Divorce in Brazil is only possible if the couple married in Brazil or if they married abroad and subsequently registered the marriage in Brazil. Specific procedures exist to register marriages carried out abroad and local law requires such registration to occur within 180 days for couples in this situation residing in Brazil.
However, for couples who married abroad and who did not register their marriage in Brazil, divorce in Brazil is still possible. Specific procedures can be adopted to subsequently register the marriage and issue divorce proceedings. However, each case requires individual analysis.
The way a couple’s assets will be divided following a divorce in Brazil depends on the regime the couple decided to adopt when they married. There are five choices under Brazilian law, but the first three are, by far, the most common:
1) Partial Communion of Assets (“Comunhão Parcial de Bens”) – This is the default option. All assets acquired before the marriage go to the party who acquired them, whereas all assets acquired during the course of the marriage are split 50/50. (Certain specific assets may not be split 50/50, even if bought during the marriage.)
2) Total Separation of Assets (“Separação Total de Bens”) – Each party keeps assets acquired by them whether before or after the marriage. Nevertheless, the couple may acquire assets together and have them registered under both names.
3) Universal Communion of Assets (“Comunhão Universal de Bens”) – All matrimonial assets, whether acquired before or after by the marriage, are split 50/50.
4) Mandatory Separation of Assets (“Separação Obrigatória de Bens”) – This option only applies when one of the parties entering into the marriage is over 70 or under 18 years of age as such cases involve inheritance considerations.
5) Final Participation on the Assets (“Participação Final nos Aquestos”) – Rarely chosen. Applies to situations where couples have no future prospects in case of death of either party.
Aside from the Partial Communion of Assets regime, all other regimes require a specific pre-nuptial agreement.
When a marriage takes place abroad and is subsequently registered in Brazil, the couple must adopt the regime of the country where the marriage occurred. If the marriage certificate of the country where the wedding occurred doesn’t state the elected regime and in the absence of a pre-nuptial agreement, the couple must elect the default local regime where the wedding took place. Nevertheless, the couple may have the regime judicially changed by electing a Brazilian one.
Brazilian law states that the level of child maintenance is assessed by taking into consideration the ability of the parent to pay and the needs of the child. Spousal maintenance is becoming much rarer as it is expected that women should work and provide for themselves.
Leave to Remove
It is extremely unlikely that a Brazilian court will allow the parent with custody to remove the child to another jurisdiction where the other parent does not consent.
For advice on Brazil divorce and family laws, please contact Bruna Rinaldi de Carvalho and Maria Isabel Hughes of Rinaldi de Carvalho e Hughes, Av. Nilo Peçanha, 50, Grupo 1010 – Centro, Rio de Janeiro – RJ, CEP: 20020-100, Brazil.
Email: [email protected] and [email protected]
Phone: +55 21 2532 8681