Marriage may be a dream, but it can also become a nightmare. Getting divorced sometimes is the solution, but how to do it when your marriage crosses borders? If you're a foreigner or married to one, this article will help you to understand the Brazilian divorce process and how it must be done.
According to the Brazilian Institute of Geography and Statistics – IBGE – in 2011 there were 351.153 registered legal suits of divorce in Brazil. The high number represents an increase of almost 46% of the occurrence of this practice in the country from 2010 to 2011.
IBGE claims that the increasing number of divorces in Brazil is linked to the approval of the constitutional amendment n° 66 in 2011 and the consequent constitutional changes. The amendment altered the previous deadlines for the divorce requests. The alteration enabled, without major bureaucratic requirements, the dissolution of formal unions.
Divorce Law and the Constitutional Changes
With the new changes, a person who got married last week may get a divorce today. Previously, this was impossible, it was necessary to be at least one year married to request a process of separation or two years to get straight to the divorce.
The amendment also remove the necessity to present a specific reason for requiring a separation. The removal had as purpose eliminates the fault finding between the partners and was a major factor to the growth of divorce rate in 2011.
Divorce Process: Brazilian and a Foreigner
Divorces done outside Brazil – unlike marriages – aren't directly valid in Brazil. Brazilian citizens are allowed to marry foreigners abroad since the legal requirements of the country – where the celebration will take place – were followed. The marriage performed abroad between a Brazilian and a foreigner is valid in Brazil, regardless of the record. However, it is only in effect if it was registered at the Brazilian Consulate located in the place where the marriage occur.
The procedure for registering a marriage made abroad in a Brazilian consulate is simple and can be done by anyone. The marriage then will be valid, with a divorce it's different. A divorce made abroad has no validity in Brazil.
Homologation of the Divorce
The marriage that was executed abroad can be dissolved: by direct divorce proceedings in Brazil or by a process made abroad. In this case, if the divorce process occurs abroad it will be only recognized after going through a judicial process of recognition performed by the superior court.
The judicial process is named as homologação de sentença estrangeira, which is a homologation of the foreign sentence meaning official approval or recognition. Only through this process will the new marital status be recognized in Brazil.
Will I have to come to Brazil?
To get a homologation it isn't necessary to come to Brazil. To apply for the homologation of your divorce, you can constitute a Brazilian lawyer by proxy. The proxy must be done in the Brazilian Consulate in the country your in. The lawyer must be Brazilian and must be regularly enrolled in the Brazilian Order of Lawyers.
The homologation of your divorce can be realized through a electronic petition. The system of electronic process was introduced in Brazil by the Lei do Processo Eletrônico in 2008. It allows you to request the divorce homologation to the Superior Court of Brazil by internet.
The process may be electronic, but in the end of it you will obtain a normal decision from the Superior Court of Justice, which means that after the approval by the Superior Court the homologated sentence must be presented, in Brazil.
Your lawyer through a proxy can be presented to the responsible authority by the civil registry, so there's no needto come to the country. The homologated sentence must be presented to the Civil Registry for the divorce to be properly registered and recognized by Brazilian State.
To start your 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, legalized by the Brazilian consulate responsible for the area in which the sentence was made.
- 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, the signature must be notarized.
- a document showing a possible name change after divorce.
- attorney granting powers to your lawyer to apply for the homologation in Brazil.
As a rule, all foreign documents must be legalizedby the Brazilian Consular Officewith 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 of each Brazilian State.
The legalization of documents can be provided by sending your documentation by mail or in person to the competent Brazilian consulate of the country you're in and sending also a proof of payment of all fees involved in the legalization of documents process.
Documents produced in France or Italy, for example, do not need legalized by the consulate due to the existence of international agreements between the two countries and Brazil.
Entire Process Duration
On average, the superior court take about four months – from the date when application is filed in court – to decide cases of homologation of foreign sentences of divorce. The period is only an average for cases that provided the proper documentation legalized according to the Brazilian requirements and that presented a statement of consent of the spouse. Without this statement, the process could take longer to complete.
Once the decision becomes irrevocable, the court – by the request of your lawyer – draws the “carta de sentença” of the case, which is nothing more than a notarized copy of the parts of the process. Then, the “carta de sentença" shall be signed by the president of the court. The procedure normally takes 4 to 8 weeks to be complete.
In summary, to complete the homologation process, you should spend a period of six months. The period consists of the date that you're given entry in the request until the recognition of your divorce by the Brazilian State.
The costs of a divorce can vary a lot. Translation costs vary greatly according to the size and number of documents that will have to be translated. The costs of notarization, pre-legalization and legalization also depend on the number of documents that need to be notarized and legalized in the case. Moreover, there are judicial expenses, not only with lawyers, as well as, with the draw of the “carta de sentença” and the respective remittance of it to abroad.