Divorce, Custody, and Child Support in Brazil

In Brazil, family-related matters such as divorce, custody, and child support are mainly guided by the Brazilian Civil Code and certain other specific statutes. Here’s a brief overview:

  • Divorce: Since the 2010 Constitutional Amendment No. 66, the requirement of legal separation or a specific period of de facto separation before obtaining a divorce was eliminated. Now, divorce is direct and can be requested at any time if the couple decides the marriage is irretrievable (Civil Code, Art. 1,571).

  • Custody and Visitation: The best interests of the child play a central role in custody determinations. The Civil Code (Art. 1,583) provides for both shared and sole custody arrangements. Regardless of the custody type, visitation rights must be preserved, ensuring that the child maintains a relationship with the non-custodial parent.

  • Child Support: Art. 1,694 of the Civil Code states that family members are mutually obligated to support each other. This obligation is extended to children and is calculated based on the child’s needs and the means of the parent required to provide support.

2. Different Types of Custody

  • Shared Custody: Introduced to Brazilian legislation in 2008, shared custody (guarda compartilhada) involves both parents sharing in the rights and responsibilities associated with the daily life of the child. This doesn’t necessarily mean equal time with both parents but rather ensures that both parents are actively involved in the upbringing and decision-making for the child.

  • Sole Custody: In instances where shared custody isn’t in the best interest of the child, sole custody (guarda unilateral) may be granted. Under this arrangement, one parent is primarily responsible for the child, while the other parent typically retains visitation rights.

3. Determination of Child Support

Child support in Brazil is determined by two main principles: necessity and possibility. This means that support must cover the child’s basic needs (necessity) and is calculated based on the paying parent’s financial ability (possibility). While there isn’t a fixed percentage established by law, traditionally, courts might order amounts ranging from 10% to 30% of the paying parent’s income, depending on individual circumstances.

4. Payment and Non-Payment of Child Support

Timely payment of child support is essential, as it directly impacts the child’s well-being. In cases of default:

  • The individual can be subjected to civil penalties.
  • A judge might order a wage garnishment to ensure the child’s needs are met.
  • The non-payment lead to “civil arrest” – a form of detention that serves to coerce the debtor into fulfilling their obligation. This arrest can last up to 3 months (Civil Code, Art. 528).

5. International Child Support Enforcement: Hague Convention

Brazil is a signatory to the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. This convention facilitates cross-border child support claims. If a parent in Brazil seeks child support from a parent residing in another country party to the Hague Convention, the convention provides mechanisms for recognition and enforcement of support orders across borders. Similarly, support orders made in other signatory countries can be enforced in Brazil.

In fact, the Brazilian legal framework regarding divorce, custody, and child support emphasizes the “best interests of the child” ensuring that their fundamental rights and needs are met, regardless of their parents’ marital status. 

If you would like to discuss this matter further, please feel free to give me a call at +55 (11) 98433-5841 (WhatsApp) or send an email to mauricio@advogasse.com.br.

You can also contact:

  • This is one of the main platforms in Brazil where you can request a variety of civil certificates, including marriage, birth, and death certificates.
  • This service provides nationwide coverage, allowing users to request various certificates from any notary office in Brazil.
  • CRC Nacional is an integrated system for registry offices.
  • A platform for various notarial services.
  • Directory of cartórios in Brazil and provides online services.
  • Offers online services for obtaining various certificates.
  • Another portal for requesting notary services online.
  • This is the central registry for São Paulo state.
  • Cartório de Registro Civil das Pessoas Naturais: www.rgdpn.com.brProvides online services related to civil registrations.
  • Central Notarial de Serviços Eletrônicos Compartilhados (CENSEC): www.censec.org.br

 

 

 

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mauricio@advogasse.com.br
ADVOGADO INTERNACIONAL

Dr. Mauricio Ejchel

Lawyer in Brazil

International Lawyer, graduated from the Law School of the Pontifical Catholic University of São Paulo, Postgraduate in International Relations at Laureate International Universities, admitted to the Brazilian Bar in 1995, founding partner of MF Ejchel Advocacy International (est. 1996), law specialist commentator at the Brazilians TV Networks and columnist for Radio Justice, that belongs to the Brazilian Supreme Court.

Dr. Ejchel concentrates his expertise on international family law, lectures on international child abduction and other international family law topics on television and radio show and is frequently featured in the print media.

As an academic writer, has several legal articles published both in Portuguese and English. With over 25 years of legal experience and commitment to the advocacy, he provides strategic legal advices based on his ability to manage complex cases and negotiate legal contingencies, being also an experienced barrister, obstinately acting before the Brazilian Courts in numerous lawsuits.