Brazil Divorce & Family Law

Divorce in Brazil is a relatively new development, as it only became legal in the country in 1977. There have been various amendments to the divorce laws since then, and it is now possible to obtain a divorce in some cases without going through a court procedure. So how do you get a divorce? What are the grounds for divorce? How are child custody and contact issues handled? And how do courts divide your assets on divorce? Find out more about divorce and Brazil.

Divorce laws in Brazil

As the divorce laws in Brazil have evolved, it is now possible to get a divorce on a ‘no-fault’ basis. There are two main types of divorce in Brazil:

Administrative divorce by mutual consent

Since 2007, it has been possible to get a ‘no-fault’ divorce in Brazil by mutual consent. You can file for divorce at the office of a public notary and avoid the court process if:

• you both agree to the divorce
• you have no minor or disabled children
• you can provide a written agreement about how you will divide any assets/property.

Judicial divorce

If you do have children, you don’t agree to the divorce, or you can’t agree on certain aspects of your separation, you will have to go through the judicial process.

A court will hear your case, and your divorce shall be decreed by a judgment. Note that the law in Brazil does not require the division of property to be made during the divorce. It may be done after the judgment, if there is no agreement between you about how you split your joint assets.

Child custody and contact arrangements following divorce in Brazil

As the roles of husbands and wives in Brazil have changed, so have rules regarding child custody and contact.

In 2014, joint custody became the default arrangement in Brazil in most cases. If you can’t agree arrangements for your child, the court will award joint custody unless one of the parents declares that they do not want custody, or in other exceptional circumstances.

The law also says that your child should enjoy a ‘balanced division’ of contact time with each parent. This doesn’t necessarily mean a 50/50 split but should be as close to it as possible.

Children aged 12 and over have the right to have their views and wishes heard by a court.

Apart from joint custody, there are three other types of child custody in Brazil:

• Physical custody – when your child has the right to stay with both parents. For instance, your child may spend the weekdays with you, and the weekends with the other parent.
• Sole custody – one parent has custody of the child (and the responsibilities) and the other parent has the right to contact on predetermined occasions.
• Alternating custody – where custody alternates between parents. Your child will spend equal, predetermined periods with each parent and you have decision-making power when your child is in your care.

Parents are also required to financially support their children. The law in Brazil states that the level of child maintenance should be assessed by taking into consideration the needs of your child and the ability of a parent to pay.

Brazil is a signatory to the Hague Convention on Child Abduction. So, if you live in Brazil and your child is taken out of the country without your permission, or your child is taken from your ‘home’ country to Brazil, you can speak to the appropriate authority to secure their return.

Note that the USA and some European countries have accused Brazil of failing to comply with their obligations under the Hague Convention. Many courts in Brazil consider such cases ‘child custody disputes’ meaning it can take months or even years for children to be returned from Brazil to their country of domicile.

Financial settlements on divorce in Brazil

If you can’t agree on how your assets will be divided on divorce, the court can make an order.

The default property ownership regime in Brazil is ‘partial communion of assets’ (‘Comunhão Parcial de Bens’). Here, any assets you acquired before your marriage belong to you, while anything you acquired when married are split 50/50 (with some exceptions).

Any other ownership regime requires you to have signed a pre-nuptial agreement. The other four options are:

• ‘total separation of assets’ (‘Separação Total de Bens’) – Here, you will keep all assets acquired by you whether before or after the marriage.
• ‘universal communion of assets’ (‘Comunhão Universal de Bens’) – Under this regime, all marital are split 50/50, whether acquired before or after the marriage. Gifts and inheritances may be excluded.
• ‘mandatory separation of assets’ (‘Separação Obrigatória de Bens’) – This option only applies when one of you is over the age of 70 or under the age of 18.
• ‘final participation on the assets (‘Participação Final nos Aquestos’) – This rarely chosen option applies to situations where couples have no future prospects in case of death of either party.

A court can also award spousal maintenance on divorce. However, spousal support is becoming much rarer in Brazil as it is expected that both parties should work and provide for themselves.