23.1. Introduction
This work is intended to expound on the main issues relating to Brazilian Family Law, not only in its substantive sense but rather as far as its application to cases involving foreigners, in succession or divorce matters, is concerned.
Initially, it is worth bearing in mind that, when it comes to family law and succession law, there is no distinction as to the rules applicable to heterosexual or homosexual relationships, adopted or biological children, nor to court-supervised or out-of-court procedures (carried out with Notary Public’s Offices).
In addition, in the cases in which the Brazilian law applies, the reflections of matrimonial regimes in trade relations will also be addressed.
Lastly, as it is a matter of international interest, the conditions and procedures for adopting Brazilian children by foreigners will also be reviewed.
23.2. Jurisdiction and Applicable Law
Whatever the nationality of those involved, the Brazilian judicial authority holds jurisdiction in the cases where1: (i) either party is domiciled in Brazil, including guardians in custody cases; (ii) the obligation should be fulfilled in Brazil, such as awards of alimony for residents of the domestic territory; and (iii) facts have occurred or acts have been carried out in Brazil.
Furthermore, the Brazilian courts, to the exclusion of any other, should prosecute2 actions involving a dispute over the ownership of real estate located in Brazil; actions that deal with the succession law, whether the opening and probate of notary or holographic will or the probate proceeding, when there are assets located in Brazil to be distributed, such as bank accounts, credits, real estate, even if the deceased is a foreigner or is domiciled outside the domestic territory, or even if all the heirs live in another country. Regarding taxes levied in the event of succession, the recent Tax Reform brought important changes, but which still depend on legislative regulation.
However, the fact that the Brazilian courts hold jurisdiction over the matters herein does not make it mandatory to apply the Brazilian laws.
For instance, if one of those engaged is domiciled abroad at the time of marriage, the law of that country should be met concerning the matrimonial regime, or if the couple is domiciled in different countries, the legislation of the first marital residence should be observed, and for decisions, the Brazilian judge in charge of trying the relevant lawsuit may require the parties to put in evidence of the wording of the applicable foreign law, as well as its effectiveness.
1Article 21 of the Code of Civil Procedure (CPC) – It is incumbent upon the Brazilian judicial authority to prosecute and try the cases in which: I – the defendant, regardless of nationality, is domiciled in Brazil; II – the obligation should be fulfilled in Brazil; III – the basis concerns facts that have occurred or acts that have been carried out in Brazil. Sole Paragraph. For the purpose of the provisions of Item I, a foreign legal entity that has an agency, branch or subsidiary is considered domiciled in Brazil.
Article 22 of CPC – It is also incumbent upon the Brazilian judicial authority to prosecute and try the cases: I – of alimony, when: a) the creditor has a domicile or residence in Brazil; b) the defendant maintains ties in Brazil, such as possession or ownership of assets, income receipt or obtaining economic benefits; II – arising from consumer relations, when the consumer has a domicile or residence in Brazil; III – in which the parties, expressly or tacitly, submit to domestic jurisdiction.
2Article 23 of CPC – It is incumbent upon the Brazilian judicial authority, to the exclusion of any other: I – to hear actions pertaining to real estate located in Brazil; II – in matters of hereditary succession, to proceed with the probate of a holographic will and the probate proceeding and distribution of property located in Brazil, even if the decedent is of foreign nationality or is domiciled outside the domestic territory; III – in divorce, legal separation or dissolution of a steady union, to proceed with the distribution of property located in Brazil, even if the plaintiff is of foreign nationality or is domiciled outside the domestic territory.
23.3. Matrimonial Regimes Provided in the Brazilian Legal System
There are five matrimonial regimes provided for in the current legislation, and the parties choose the regime they wish to adopt, which will have different implications for the separation of assets in the event of divorce, and when inheriting the decedent’s estate. We have two general rules of matrimonial regime: partial community property and separation of property (for those over 70 years old). Thus, in the silence of the engaged people or cohabitants, the regime is adopted according to their situation. If the engaged people do not want the legal regime, they should, at least five (5) and at most ninety (90) days before the wedding, go to a notary public’s office and execute a deed of prenuptial agreement choosing the matrimonial regime for the marriage.
Although the prenuptial agreement may contain clauses that go beyond the proprietary issue, such as the religious education of the children, the division of household chores, etc., the autonomy of the engaged people is limited, especially concerning the effects of the chosen matrimonial regime, changes in the succession rules, among others.
While on the subject, the regime adopted, since the effectiveness of the current Civil Code, is no longer immutable as previously. To change the matrimonial regime adopted3, both spouses must make a motion before the court, explaining the reasons why they intend to change the regime, and safeguarding any rights of third parties, to safeguard creditors.
It is worth noting that all rules relating to matrimonial regimes apply to both marriages and steady unions.
23.3.1. Regime of Partial Community Property (Legal Regime)4
The regime of partial community property is known as the legal regime, as it is the regime adopted in case the engaged people are silent, that is, in case they do not enter into a prenuptial agreement5. Under this regime, only the property was acquired as a married couple by onerous title commingles. There is no need for either party to prove the effort or ability to acquire the community property since it will be distributed at the rate of 50% for each one, even if it is only in the name of one or another spouse.
In this matrimonial regime, the property acquired during the marriage cannot commingle, however, as a result of a very personal relationship (assets for personal use, earnings from work), those acquired due to a situation prior to the marriage (assets acquired by inheritance or by subrogation, that is, acquired with exclusive funds of one of the spouses and prior to the marriage), or even the result of a donation only in favor of one of the spouses.
As will be seen below, if the steady union is not regulated by means of a public deed or private instrument establishing a different matrimonial regime, the regime of partial community is considered applicable.
3Article 1639 of the Civil Code. It is lawful for the engaged people, before the marriage is entered into, to establish, as to their assets, what they please. Paragraph 1. The matrimonial regime between the spouses takes effect from the date of the marriage. Paragraph 2. It is permissible to change the matrimonial regime, by judicial authorization in a reasoned request of both spouses, upon the ascertainment of sufficiency of the reasons raised, and safeguarding the rights of third parties.
4Article 1658. In the regime of partial community, the assets acquired as a married couple commingle, except for the following articles.
Article 1659. The following are excluded from community: I – the assets that each spouse owns when marrying, and those that may be acquired as a married couple, by donation or succession, and those subrogated on their behalf; II – the assets acquired with funds exclusively belonging to one of the spouses in subrogation of the private assets; III – the obligations prior to the marriage; IV – the obligations arising from wrongdoings, unless reversed for the benefit of the couple; V – the assets for personal use, the books and instruments of profession; VI – the proceeds from the personal work of each spouse; VII – spousal supports, military pensions, public servants’ survivor’s pension, and other similar income.
Article 1660. The following are included in the community: I – the assets acquired as a married couple by onerous title, even if only in the name of one of the spouses; II – the assets acquired by an eventual fact, with or without the contribution of previous work or expense; III – the assets acquired by donation, inheritance or devise, in favor of both spouses; IV – the improvements in private properties of each spouse; V – the fruits of the community property, or the private assets of each spouse, received as a married couple, or pending at the time of terminating the community property.
Article 1661. Assets which have their acquisition based on a cause prior to marriage are separate property that cannot commingle.
Article 1662. In the regime of partial community, personal property is presumed to be acquired as a married couple when it is not proven that it had been acquired at an earlier date.
Article 1663. The administration of the community property is the responsibility of either spouse. Paragraph 1. The debts incurred in exercise of the administration bind the community and private assets of the spouse who administer them, and those of the other as a result of the income they have earned. Paragraph 2. The consent of both spouses is necessary for the acts, free of charge, that imply assignment of the use or enjoyment of community property. Paragraph 3. In the case of misuse of assets, the judge may assign the administration to only one of the spouses.
Article 1664. The assets of the community are subject to liability for the obligations undertaken by the husband or wife to meet the family’s burdens, the expenses of administration, and those arising from legal imposition. Article 1665. The management and disposal of the assets constituting the private property is the responsibility of the owner spouse, unless otherwise agreed in a prenuptial agreement.
Article 1666. The debts, incurred by either spouse in the administration of their private property and for their benefit, do not bind the community property.
5Article 1640. If there is no agreement, or if it is rendered null or ineffective, the regime of partial community will be in applicable to the property between the spouses. Sole paragraph. Engaged people may, in the process of qualification, choose any of the regimes encompassed by this code. As to the form, the option for partial community property will be reduced to writing, considering the prenuptial agreement as public deed, in the other choices.
23.3.2. Regime of Universal Community Property6
In turn, the regime of universal community property covers, as the name implies, the community of all assets, that the engaged people already had when they married, currently and subsequently acquired by the couple, and those received by inheritance or donation. Both assets and debts are shared, everything is common to both.
Exceptions to the rule of community of property are only assets registered with a clause of non-community of property, which does not extend to fruits unless so provided.
23.3.3. Conventional and Mandatory Regime of Separation of Property7
Another regime of extreme importance in the domestic legal system is the separation of property that pertains, needless to say, to the non-community of property that covers all assets acquired individually by the spouses, as well as the debts that are in the name of each one. This regime is called conventional Separation of Property.
The importance of this regime, however, does not come simply from its features, but from the fact that the legislature had established that separation of property would be mandatory for persons over seventy (70) years old (Article 1641, II, of the Civil Code).
Nonetheless, the Federal Supreme Court held on February 1, 2024, that the law could not harm the individual right of choice and free will of the parties on account of age, establishing the thesis of general repercussion under Theme 1236: “In marriages and steady unions involving a person over 70 years old, the regime of separation of property provided for in Article 1641, II, of the Civil Code, may be ruled out by express manifestation of will of the parties by means of a public deed.”
Therefore, if those over 70 years old are silent, the regime of mandatory separation of property is adopted, BUT all those which do not want to adopt this regime are ensured the right to do so by drawing up a deed that establishes a different regime.
Another issue of matrimonial regimes, which is worth looking into for marriages or unions prior to 2024, when there was a trial of mandatory separation of property in the Federal Supreme Court (STF), is that the doctrine and caselaw understand that, if there is no express provision to the contrary signed by the spouses, the assets acquired as a married couple by common effort will commingle, even if registered in the name of only one of them, under the terms of Precedent 377, according to which “in the regime of legal separation of property, those assets acquired as a married couple commingle,” provided that the common effort is proven.
23.3.4. Regime of Final Sharing of Acquets8
There is a bill proposing the reform of the Brazilian Civil Code, through which the regime of final sharing of acquets will no longer exist because despite being introduced by the Civil Code of 2002, it is very little adopted.
Under this regime, there is the separation of assets acquired as a married couple, each spouse preserving its assets, which is freely managed, except for real estate, which depends on the authorization of the other to be sold, and the spouses may establish in the prenuptial agreement that they waive the consent of the other for the sale of real estate.
Nonetheless, with the dissolution of marriage, each of the spouses is responsible for half of the assets acquired as a married couple by onerous title, which is why the law establishes criteria for identifying and ascertaining the property to be divided. There is, in this case, a balancing of accounts, in order to establish the share of one spouse on the acquets of the other, excluding from it the property prior to marriage, those subrogated to them, those that come to each one by succession or donation, and the debts pertaining to such property.
Although it is a regime introduced in the legal system by the current Civil Code, the Regime of Final Sharing of Acquets is already known in several countries, in which, however, it is little used, notably due to the complexity of the balancing of accounts necessary when the couple separates.
6Article 1667. The regime of universal community property implies the commingling of all present and future property of the spouses and their outstanding debts, with the exceptions of the following article.
Article 1668. The following are excluded from the community property: I – the assets donated or inherited subject to a clause of non-community of property, and those subrogated on their behalf;
II – the property subject to fideicommissum, and the right of the fideicommissary heir, before the condition precedent is fulfilled;
III – debts prior to marriage, unless they come from expenses with its preparations, or revert to common benefit; IV – prenuptial donations made by one of the spouses to the other under a clause of non-community of property; V – The assets referred to in Items V to VII of Article 1659.
Article 1669. The non-community of property of the assets listed in the preceding article does not extend to fruits, when they are received or expire over the marriage.
Article 1670. The provisions of the previous Chapter regarding the administration of assets apply to the regime of universal property.
Article 1671. Upon termination of the community, and upon the division of assets and liabilities, the liability of each of the spouses to the creditors of the other shall terminate.
7Article 1687. Once the separation of property is stipulated, it will remain under the exclusive administration of each of the spouses, who may freely dispose of it or charge with security interest.
Article 1688. Both spouses are obliged to contribute to the expenses of the couple in proportion to the income from their work and their property, unless otherwise set forth in the prenuptial agreement.
8Article 1672. In the Regime of Final Sharing of Acquets, each spouse has their own property, as provided for in the following article, and is entitled, at the time of the dissolution of the marriage, to half of the assets acquired by onerous title as a married couple.
Article 1673. The property that each spouse had when they married and those acquired by them, in any capacity, as a married couple, are part of their own property.
Sole Paragraph. The administration of these assets is exclusive to each spouse, who may freely dispose of them, if they are personal.
Article 1674. Upon the dissolution of the marriage, the amount of the acquets will be determined, excluding from the sum of the own assets:
I – the assets prior to marriage and those that were subrogated on their behalf;
II – those that came to each spouse by succession or donation;
III – debts pertaining to these assets.
Sole Paragraph. Unless proven otherwise, personal property is presumed to be acquired over the course of the marriage.
Article 1675. When determining the amount of the acquets, the amount of the donations made by one of the spouses will be reckoned, without the necessary authorization of the other; in this case, the property may be claimed by the aggrieved spouse or by his/her heirs, or declared as part of the estate, for an amount equivalent to that at the time of dissolution.
Article 1676. The amount of the disposed assets is incorporated into the estate to the detriment of the marital portion, if there is no preference of the aggrieved spouse, or their heirs, to claim them.
Article 1677. For debts after marriage, incurred by one of the spouses, only the latter will be liable, unless proven to have reverted, partially or totally, to the benefit of the other.
Article 1678. If one of the spouses has settled a debt of the other with assets of their own property, the amount of the payment should be updated and charged, on the date of dissolution, to the marital portion of the other spouse. Article 1679. In the case of assets acquired by joint work, each of the spouses will have an equal share in the co ownership or in the credit established by that mode.
Article 1680. Movable property, in the face of third parties, is presumed to be the domain of the debtor spouse, unless the property is for the personal use of the other.
Article 1681. The real estate is owned by the spouse whose name appears in the registration. Sole Paragraph. If ownership is contested, it will be up to the owner spouse to prove the proper acquisition of the assets.
Article 1682. The right to marital portion is not waivable, assignable or attachable during the term of the matrimonial property regime.
Article 1683. Upon dissolution of the matrimonial regime by legal separation or divorce, the amount of the acquets will be ascertained on the date on which the coexistence ceased.
Article 1684. If it is not possible or convenient to divide all assets in kind, the amount of some or all will be ascertained for cash refund to the non-owner spouse.
Sole Paragraph. If the refund cannot be made in cash, they will be valued and, upon judicial authorization, sold in as many assets as are sufficient.
Article 1685. In the dissolution of the marriage by death, the marital portion of the surviving spouse will be ascertained in accordance with the previous articles, granting the inheritance to the heirs under the terms established in this Code.
Article 1686. The debts of one of the spouses, when higher than their marital portion, do not bind the other, or their heirs.
23.4. Steady Union9
The Federal Constitution recognizes the steady union as a family unit, formed by public, continuous, and lasting coexistence, in the interest of starting a family, in which, unless a contract or deed provides otherwise, the Regime of Partial Community Property is adopted, and the consequences of such regime will be adopted both in the events of divorce and succession alike.
There is no requirement in the law of minimum time of coexistence to fall into the classification of steady union, nor the obligation for the parties to live in the same residence.
It is worth noting that, as already mentioned, the same rights and duties of marriage apply to steady unions, whether under family or succession law.
9Article 1723. The steady union between man and woman is recognized as a family unit, as constituted as a public, continuous, and lasting coexistence, and established with the purpose of starting a family. Paragraph 1. The steady union will not be constituted if the impediments of Article 1521 occur; with Item VI not applying in the event that the married person is separated in fact or in court.
Paragraph 2. The suspensive causes of Article 1523 will not prevent the institution of the steady union. Article 1724. The personal relationships between the partners will abide by the duties of loyalty, respect, and assistance, and of custody, support, and education of the children.
Article 1725. In the steady union, unless written contract between the partners, the regime of partial community property applies to the property relations, accordingly.
Article 1726. The steady union may be converted into marriage, upon request of the partners to the judge and filing in the Civil Registry.
Article 1727. Non-occasional relationships between man and woman, prevented from marrying, constitute concubinage.
23.5. Matrimonial Regime and Trade Relations
As previously explained, the freedom granted to those engaged to establish the matrimonial regime that best suits them does not imply total freedom. The Brazilian legislature established some limits to the clauses of prenuptial agreements, except for the regime of separation of property, in which the spouses have total freedom and independence to dispose of their private assets.
And sometimes these limitations are reflected in trade relations, as they were created precisely to protect the couple’s community property, which in certain cases cannot be reached by obligations that may be undertaken by only one of the spouses.
Among these limitations, the most relevant are provided for in Article 1647 of the Civil Code, and refer to any burden undertaken by one of the spouses without the consent of the other, and which may result in losses to the other spouse, namely:
I – dispose of or charge real property with security interest;
II – claim in court, as plaintiff or defendant, concerning these assets or rights; III – post suretyship or accommodation;
IV – make a donation, not being remunerative, of community property, or of those assets that may be part of a future marital portion”.
Despite providing for the main hypotheses, this list provided for in the Civil Code is not exhaustive, but as can be seen, the limitations established by the legislation aim to preserve the community property of the couple, so that neither spouse can undertake obligations or dispose of assets without the marital authorization of the other.
Thus, in the event that one of the spouses fails to obtain the authorization of the other to perform any of these acts, it shall be voidable up to two (2) years after the termination of the marital union.
Spouses married under the regime of mandatory separation (optional by decision of STF) of property (in which one of those engaged is seventy (70) years old or more) or universal community property cannot have a joint interest in the same business company, even if there are third parties in the same company.
The purpose of the prohibition is to avoid the modification of the proprietary relations between spouses through the company incorporated between them.
In turn, for those married under the regime of community property, the challenge is posed by the fact that it would not be a company itself, since all the assets of the couple commingle so there would be confusion of assets.
Thus, although matrimonial regimes matter mainly to spouses, it is certain that their nuances have direct consequences on trade relations, which is why the regime adopted by a given person is worthy of attention, whenever the contracting may have implications for the couple’s property.
23.6. Legal or Non-Legal Divorce and Dissolution of Steady Union
For divorce and dissolution of a steady union, which imply the termination of the marital bond, it is not necessary that the reasons for the dissolution be exposed. Both can be carried out in the legal or non-legal scope.
Legal divorce can occur in a consensual or litigious manner, while in the non-legal realm, the consensus between the spouses or partners is mandatory.
In addition to the consensus, the non-legal route, substantiated by the drawing up of a public deed by one of the Notary Public’s Offices, requires that there are no provisions regarding the rights of children under 18 years old or unborn ones, such as spousal support, custody, and coexistence regime, because whenever there are minors or incompetent people involved, the intervention of the Prosecuting Officer is necessary as a guardian of the law.
Thus, non-legal divorce may be carried out, provided that the part of the custody, regulation of coexistence regime, and support for minors or incompetent people is previously resolved in the legal scope, in one of the specialized Family courts or notary public’s offices. The assistance of a lawyer in both spheres, legal and non-legal, is mandatory.
If the spouse adopted the other’s surname when marrying, it can be kept after the divorce, however, the exclusion of the surname to return to the full name prior to marriage is a decision of the adopter, who cannot be forced by the other to return to use the full name prior to marriage.
23.7. Adoption in Brazil
Although it is not a business-related issue, the theme of adoption in Brazil, especially of Brazilian children by foreigners, has been very relevant.
The adoption of Brazilian children and adolescents by foreigners should occur through a judicial procedure and abide not only by the same rules as the adoption by Brazilians but also others that are provided for in the Child and Adolescent Statute (Law 8069/90 – Articles 39 to 52-D). Adoption can be done by heterosexual or homosexual couples, or by single parents, which is the process for single people.
In addition to the obvious need for adoption to present real advantages for the adoptee, the objective requirements for the adoption of children under eighteen (18) years old, the age at which full legal capacity is acquired, should be observed by the adopter, both by Brazilians and foreigners, which will be as follows:
– be over eighteen (18) years old;
– be at least sixteen (16) years older than the adoptee;
– consent of the biological parents or legal guardians of the adoptee, except if the parents are not known or have been deprived of parental power; and
– consent of the adoptee, if they are over twelve (12) years old.
Subject to these requirements, the process is instituted, in which a psychosocial study will be carried out by a specialized and accredited agency in the country of origin.
It is also possible that international adoption is conditioned to a prior study and analysis of a state judicial adoption commission, which will provide the relevant qualification report as evidence for the process. The State Judicial Commission for International Adoption (CEJAI) of each state, which accredited several foreign entities relating to adoption, in order to facilitate the process of international adoption.
Thus, adoption by foreigners is also authorized, demanding some requirements in addition to those required for Brazilians, not only to avoid abuse but also to obtain greater certainty that the affective and protective criteria of the minor who will no longer be in the domestic territory will be observed.
Authors: Claudia Baptista Lopes and Regina Montagnini
De Vivo, Castro, Cunha, Whitaker Advogados
Rua Leopoldo Couto de Magalhães Jr., 758
10º andar – Itaim Bibi
04542-001 São Paulo – SP
Tel.: (11) 3048 3266
E-mail: [email protected]
Internet: www.devivocastro.com.br