The number of marriages are increasing year on year in Brazil, despite marriages lasting shorter periods. In these cases, getting divorced may be the only solution, but how to do it when your marriage crosses borders? If you're a foreigner married to a Brazilian, this article will help you to understand the Brazilian divorce process and how it must be conducted.
According to the Brazilian Institute of Geography and Statistics, also known as IBGE, there were over 340 thousand registered legal divorces in 2014 throughout Brazil. IBGE claims that the increasing number of divorces in Brazil is linked to the approval of the constitutional amendment in 2011 and the consequently constitutional changes, which simplified the divorce process. The alteration enabled, without major bureaucratic requirements, the dissolution of formal unions.
Divorce Law and the Constitutional Changes
Considering the changes to the law, an individual that got married last week may get a divorce today. Previously, this was impossible, as it was necessary to be married for at least one year to request a process of separation or two years to get a divorce.
The amendment also removed the necessity to present a specific reason for requiring a separation.
Divorce Process between a Brazilian and a Foreigner
Divorces formalised outside Brazil, unlike marriages, aren't directly valid in Brazil. Brazilian citizens are allowed to marry foreigners abroad as long as the legal requirements of the country where the union took place is followed. The marriage performed abroad between a Brazilian and a foreigner is valid in Brazil, however, it is only in effect if it was registered at the Brazilian Consulate located in the place where the marriage occurred.
The procedure for registering a marriage conducted abroad in a Brazilian consulate or embassy is simple and can be done by anyone. This process will validate the marriage and provide the necessary documents in order to issue the marriage certificate in Brazil. However in case of a divorce, it's different, as a divorce process executed abroad has no validity in Brazil.
Homologation of the Divorce
Marriages that are executed abroad can be dissolved by direct divorce proceedings in Brazil or by a process executed abroad. In the latter case, a divorce process occurring abroad, it will be only recognised after going through a legal process of recognition performed by the supreme court.
The legal process is called homologação de sentença estrangeira, which is a homologation of the foreign sentence leading to its official approval or recognition. Only through this process can the new marital status will be recognised in Brazil. The only exception is in cases where the couple does not have any children or assets in common, and the divorce is consensual. In this case, the divorce can be registered directly with the Civil Registry Notary Office.
Will I have to come to Brazil?
To get a homologation it is not necessary to come to Brazil. To apply for the homologation of your divorce, you can appoint a Brazilian lawyer to conduct the process through a power of attorney. The power of attorney must be registered with the Brazilian Consulate in the country where you are residing. The lawyer must be Brazilian and must be regularly enrolled in the Brazilian bar association.
The homologation of your divorce can be initialised through an electronic petition. The electronic system was introduced in Brazil by the Lei do Processo Eletrônico in 2008 and allows you to request the divorce homologation to the Superior Court of Brazil via the internet.
After the process has been concluded, a decision will be handed down by the Supreme Court of Justice, and your lawyer will present the homologation documents to the Civil Registry for the divorce to be properly registered and recognised according to the Brazilian Law.
To start the divorce process, you must submit the following documentation to your Brazilian lawyer:
- Marriage certificate
- Complete foreign sentence of divorce, containing the reasons for the decision and a note that the sentence cannot be appealed. This documents must be legalised by the Brazilian consulate responsible for the area in which the sentence was given
- Written declaration given by the former spouse, in which the spouse declares to be in accordance with the approval of the divorce sentence in Brazil, containing a notarised signature
- A document showing a possible name change after divorce
- Power of attorney granting powers to your lawyer to apply for the homologation in Brazil
The legalisation of documents is no longer necessary if the country of origin of the documents is listed under the Hague Convention list of countries “Abolishing the Requirement of Legalisation for Foreign Public Documents”. Otherwise, all foreign documents must be legalised by the Brazilian Consular Office with jurisdiction over the place where they were issued. If the documents are not in Portuguese it must also be translated by a public translator in Brazil. To get more information about these professionals you can access the web page of the Boards of Trade for each Brazilian State.
Duration of a divorce process
On average, the Supreme Court takes about four months from the date when application is filed in court to decide cases of homologation of foreign divorces. The period is only an average based on cases that provided the proper legalised documentation according to Brazilian requirements and that presented a statement of consent of the spouse. Without this statement, the process could take longer to complete.
If the divorce is granted without complications, the court, at the request of your lawyer, prepares a carta de sentença of the case, which is a notarised copy of the process and documents. The carta de sentençashall then be signed by the president of the Court. This procedure normally takes 4 to 8 weeks to be completed.
In summary, to complete the homologation process, it can take a period of about six months. The period starts from the date that you file your request until the recognition of your divorce by Brazilian Law.
The costs of a divorce can vary considerably. Translation costs vary greatly according to the size and number of documents that will have to be translated. The costs of notarisation, pre-legalisation and legalisation also depend on the number of documents that need to be notarised and legalised. In addition, there are legal expenses, not only for lawyers but, also with the draw of the carta de sentença and the respective remittance of these documents abroad.