If you are planning to marry a Brazilian person and arrange to do so in Brazil, it’s important to understand the country’s specific marriage rules and requirements.
In Brazil, the marriage procedure is straightforward, typically officiated before a public notary, a practice common in many countries, probably including yours.
Concerning divorce, the previous requirement of waiting for a specified period has been eliminated. Prior to the amendments made by the 2002 Brazilian Civil Code, individuals were subjected to a “desquite” or judicial separation, which mandated a 12-month waiting period before official annulment of the marriage. The 2002 revision streamlined the divorce process, allowing for immediate initiation of divorce proceedings.
In simple terms, here’s what you need to know about marriage and divorce in Brazil:
MARRIAGE IN BRAZIL:
For individuals of foreign nationality intending to marry in Brazil, their valid passport serves as the form of identification throughout the entire marriage procedure, irrespective of their country of origin.
To prove that you are not currently married, you must obtain and present a certificate of civil status from your home country. This document should be legalized by the Brazilian Consulate or Embassy and translated into Portuguese by a sworn translator.
The legalization before the Brazilian Consulate or Embassy can be substituted by the Hague Apostille of the documents, except for countries that are not signatories of the Hague Convention. All the translated documents will then be registered at the Brazilian Registry of Titles and Documents.
A civil act of registering and signing documents before a Notary is required for a marriage to be recognized by the Brazilian government. This is usually a simple procedure of form filling at a registry office, and it is necessary to present your birth certificate, copy of the passport, and certificate of civil status, all translated, as mentioned above.
If you are divorced, you must also present a copy of the divorce decree, certificate, or a compatible official document. A widower must present the original legalized death certificate of the late spouse, translated by a sworn public translator in Brazil. Also, two witnesses are required to be present at the notary during the civil act of registering the marriage. They must be at least 18 years old and not be family members.
During this proceeding, you must choose the marital regime that will govern your marriage. If you do not speak Portuguese, a sworn interpreter must be present at the ceremony and at all stages of the process, including the moment of filling out the marriage registration form. The interpreter shall explain your the options for marital regimes, among other information
In Brazil, the two primary marital regimes are “Comunhão de Bens” and “Separação de Bens“.
Comunhão Parcial de Bens or Communion of assets means that all the assets acquired during the marriage, as well as any debts incurred, are considered communal property, subject to equal division in the event of divorce or dissolution.
Separação de Bens or Separation of Assets marital regime signifies that each spouse maintains exclusive ownership of their assets and financial responsibilities during the marriage, with no commingling of resources. This arrangement ensures that assets acquired before and during the marriage remain separate, and debts incurred are the sole responsibility of the spouse who accrued them.
To institute a separation of assets regime, couples must draft a Prenuptial Agreement, known as “Contrato de Pacto Antenupcial.” In Brazil, this agreement clearly delineates the financial boundaries and property rights of each party. Such an arrangement is often the preferred choice for individuals aiming to safeguard pre-marital assets or uphold distinct financial arrangements.
Pacto Antenupcial or Prenuptial Agreement, often simply termed as “Prenup” is a legal document in which prospective spouses lay out their financial rights and obligations within the marriage.
Crafted and registered before the actual marriage, it serves as a clear framework detailing the Separation of Assets comprising both the acquired before or during the marital union. Once formulated, this agreement must be registered at a notary office, and upon marriage, it becomes an annex to the marriage certificate, ensuring its legal validity throughout the marital union.
Proclamas is a term used in Brazil to refer to publishing a notice of the couple’s intent to marry (marriage qualification) in a local newspaper or at the registry office. After the “proclamas” have been published, there is a waiting period of 30 consecutive days, and once qualified, the betrothed must contract the marriage within a maximum of 90 days, under the penalty of losing the validity of the qualification.
MARRIAGE TROUGHT POWER-OF-ATTORNEY:
A power of attorney (POA) is a legal document that gives someone else the authority to act on your behalf. You can grant a POA for a variety of purposes, including getting married.
If you are unable to be physically present in the country where you want to get married, you can grant a POA to a third person to represent you in the marriage procedure. This means that the third person will be able to sign all of the necessary paperwork and complete all of the required steps to get you married, even though you are not there.
The marriage can also be performed without either party being present in Brazil.
After getting married in Brazil, you’ll receive a marriage certificate. To register it internationally, you’ll also need to have it translated and obtain the Hague Apostille.
Foreign individuals who are married to Brazilian citizens are eligible to apply for a permanent visa. This means that they can live and work in Brazil permanently without any restrictions.
To apply for a permanent visa, the foreign individual must be married to a Brazilian citizen for at least one year and must be living in Brazil. They must also meet certain other requirements, such as having a clean criminal record and having a valid passport.
Children born to Brazilian parents are considered Brazilian citizens, regardless of where they are born. This is known as jus sanguinis, or citizenship by blood. This means that children born to Brazilian parents, even if they are born outside of Brazil, are automatically Brazilian citizens.
To register a child born abroad as a Brazilian citizen, the parents must contact the Brazilian embassy or consulate in the country where the child was born. The embassy or consulate will then issue a Brazilian birth certificate for the child.
Brazilian citizens have a number of benefits, including the right to live and work in Brazil, the right to vote, and the right to access public health services and to apply for a Brazilian Passport.
Foreigners married to Brazilian citizens can seek Brazilian Nationality after 04 years, provided they meet legal capacity, have resided in Brazil for the entire period, can communicate in Portuguese, and have no unresolved criminal convictions.
DIVORCE IN BRAZIL:
Divorce in Brazil encompasses all the legal, financial, parental, and personal facets as usually happens in any divorce worldwide.
In Brazil, there are two primary methods for obtaining a divorce: the judicial divorce, conducted through the Court system, and the extrajudicial divorce, which is typically a less formal and quicker option.
However, it is important to note that in cases involving children or assets disputes, divorce can only be pursued through the judicial process in Court.
Judicial divorce is the most common divorce method in Brazil, and it involves filing a lawsuit in Court with all the proper elements to be resolved. The process typically involves hiring a lawyer and going through a series of legal proceedings to resolve issues related to child custody, child support, visitation, and the division of assets.
The second option for obtaining a divorce in Brazil is through extrajudicial divorce, which is also known as consensual divorce. This method is less complicated and less time-consuming than judicial divorce, and it can be a good option for couples who agree on all the terms of their divorce. In this case, the couple must go to a notary public and sign a divorce agreement.
Before initiating a divorce in Brazil, foreign nationals are required to secure a CPF. This can be easily acquired online, free of charge, via the Brazilian Revenue Agency (Receita Federal) by accessing this link.
Important (1) – You can file for a divorce in Brazil without traveling to the country by engaging a lawyer to manage the process since the entire case is conducted digitally and hearings are held online.
Important (2) – If you got married in Brazil and later divorced in your country, it is mandatory to register or homologate the foreign divorce judgment in Brazil, otherwise the marriage will remain valid in Brazil.
SEPARATION “DE FACTO “:
Separation “De Facto “ is the legal term that refers to the effective separation of a married couple, that occurs when the couple no longer constitutes a family unit, by ceasing cohabitation and marital relations, even if there has been no judicial decree of separation.
The main legal effect of separation de facto is the termination of conjugal duties, such as being faithful to each other and providing mutual assistance.
Additionally, de facto separation results in the incommunicability of property, meaning that all assets acquired by each spouse after separation are not subject to division during a divorce.
It is relevant to observe that this status can be challenged in Court by the other spouse, demanding to be proved by any means of evidence admitted in law, such as witness testimony, documents, or even photographs.
In Brazil, child custody arrangements are grounded in the principle of safeguarding the child’s best interests. This means that when determining child custody arrangements, the primary consideration is the well-being and overall benefit of the child. Decisions are made based on what is deemed best for the child’s physical, emotional, and psychological welfare, rather than solely on the preferences or conveniences of the parents and also, and the child’s own views and preferences are also taken into account, especially if they are 12 years old or older.
In Brazil, “Shared Custody” is the prevalent custody model. Under this system, both parents bear equal responsibilities concerning the child’s well-being. This arrangement doesn’t mean the child’s time is divided equally between the two parents, but rather, both parents have a shared right concerning the main decisions about the child’s life. Often, there’s a designation of a “Primary Guardian” with whom the child resides, ensuring stability in the child’s day-to-day life. They are also responsible for making routine decisions and managing the child’s support funds appropriately.
The second modality of custody is referred as “Unilateral Custody,” where one parent, designated takes full and sole responsibility for the child’s daily care and major decisions. The secondary parent is awarded visitation rights, allowing for regular interactions with the child. However, in this custody model, the secondary parent’s capacity is limited to oversee the child’s well-being under the primary custodian’s guidance, without actively intervening in everyday decisions.
In accordance with Brazilian legislation, it is a standard principle in family law that the child should maintain an enduring relationship with both parents. Consequently, visitation rights are typically conferred upon the non-custodial parent.
Specifically within the context of Brazilian law, when the non-custodial parent lives in Brazil, they are granted, by legal provision, the right to be with the child for an uninterrupted span of 15 days during the academic vacation.
Additionally, the non-custodial parent has the prerogative of visitation every alternate weekend in a 15-day cycle. This can be structured to either include or exclude overnight stays with the child, subject to the best interests of the child and the mutual agreement of the parties involved.
Even so, the parent without custody has the right to regular video calls with the child, as set by the Court.
For parents who do not reside in Brazil, our approach within the context of Brazilian legal provisions is always focused on compensation. Typically, we advocate for a 30-day visitation period during academic vacations, two times per year. Additionally, we seek extended opportunities for virtual interactions via video calls and, depending on the specific circumstances of the case, permissions for international travel with the child.
When it comes to child support in Brazil, the amount is determined by the judge based on two factors, the necessity of the child and the financial capability of the non-custodial parent.
The monthly amount ranges from around U$ 200,00 up to U$ 3.000,00 or more per Child, but it can be much more than this since it is usual for a Judge to establish it as a percentage of the wage of the non-custodial parent, from 20% to 30% of their income.
The amount of alimony can vary depending on the child’s age, health, school cost, as well as non-custodial financial capacity. The number of other children the custodial parent has is not relevant to the calculation of the amount awarded.
Child support usually lasts until the child turns 18 years old, but can extend if the child is still studying, like attending college. However, most laws cap this obligation at 25 years old, regardless of education status.
Failure to pay child support can result in legal consequences, including fines and even imprisonment (as a pressure mechanism to enforce outstanding payments).
Also it is relevant to mention that since 2017, Brazil has incorporated provisions from the Hague Convention on Child Support.
The Hague Convention on the International Recovery of Child Support has significantly sped up the collection of international child support by bringing the process of enforcing unpaid amounts into the local courts where the debtor resides. To enforce a child support decree, the debtor parent’s home country can employ a variety of measures, such as wage seizures, account blocking, social security deductions, asset liens, tax refund withholding, pension benefit retention, credit agency notifications, and license suspensions.
The ex-spouses may be ordered to pay temporary alimony to their needy former spouse for up to 24 months, as an exceptional measure, in specific cases, to help them achieve financial independence and adapt to their new reality.
PARENTAL ALIENATION SYNDROME:
Parental Alienation Syndrome (PAS), as defined by Richard Gardner, is a situation in which a child is manipulated by one parent into turning against the other parent. This harmful tactic serves as both psychological violence against the partner and a form of child abuse, yet it remains difficult to identify and penalize
The Brazilian term “alienação parental” (Parental Alienation Syndrome) is recognized as a legal concept in Brazil, and therefore the legislation also acknowledges the significance of preventing such situations to ensure the child’s well-being and the preservation of healthy paternal-filial relationships.
Several legal remedies can be taken to prevent or remedy cases of PAS, including supervised visitations, family counseling, and custody modification. In fact, the Brazilian Constitution and Civil Code guarantee equal rights and responsibilities for parents, regardless of their gender.
For clarity, the Brazilian Courts prevent “Alienação parental” in parallel with the understandings in the U.S., where the UCCJEA guides its implications in child custody decisions. Similarly, France articulates this behavior through Article 373-2-10 of the Civil Code, emphasizing the preservation of a child’s ties to both parents.
VISITATION RIGHTS: – Protection Against Violation to Parental Rights for Consistent Communication with Children:
Brazilian law recognizes and protect the rights of a non-custodial parent to maintain regular contact with their child when separated from the other parent, and this right can be legally pursued in court if any obstacles to such regular contact occur.
When these rights are obstructed, several legal actions are available.
The Court can set specific visitation terms, employ a neutral mediator to facilitate agreements between parents, or issue injunctions against deliberate obstructions of contact.
If issues persist, further interventions, such as a Guardianship Review can be pursued. Failure to comply with Court orders can result in penalties ranging from fines to custody revision, in severe situations.
If you want to know more about this topic, please feel free to contact me.
Dr. Mauricio Ejchel
Dr. Mauricio Ejchel is a highly qualified international lawyer based in São Paulo, Brazil. He graduated from the Law School of the Catholic University of São Paulo and holds a postgraduate degree in International Relations. In 1995, Dr. Ejchel was admitted to the Brazilian Bar Association and went on to establish MF Ejchel International Advocacy in 1996.
As a well-known commentator on legal matters, Dr. Ejchel is an expert in family law, international divorce, and Hague child abduction cases. He has appeared on several Brazilian TV networks and is a columnist for Radio Justice, affiliated with the Brazilian Supreme Court. Dr. Ejchel’s in-depth knowledge of international legal affairs has earned him a reputation as a respected authority in the field.
Dr. Ejchel is also a prolific writer, having authored numerous legal articles in both Portuguese and English. His steadfast dedication to safeguarding the interests of his clients has earned him a reputation as an accomplished and proficient barrister in Brazil.
With over 27 years of legal experience, Dr. Ejchel provides strategic counseling, directs mediation, and manages complex cases. He has contributed to legal cases in several countries and provided expert opinions in foreign courts. Dr. Ejchel’s dedication to protecting the interests of his clients is at the core of his legal practice. He believes that realization is based on a deep understanding of the law, navigating the Judiciary, awareness of his client’s needs, and a dedication to providing legal services.