Doing Business in Brazil

23. Family Law


23.1. Introduction

The present work aims to elucidate the main issues related to Brazilian Family Law, not only in terms of its material aspect but notably about application, in cases where foreigners are involved, whether concerning succession or divorce.

Initially, it is worth clarifying that there is no distinction between family and inheritance law rules applicable to heterosexual or homosexual relationships, adopted or biological children, nor to judicial or extrajudicial procedures (carried out in Notary’s Office).

In addition, in cases where Brazilian legislation is applicable, the impact of property regimes on commercial relations will also be analyzed.

Finally, as this is a matter of international interest, the conditions and procedures for adopting Brazilian children by foreigners will be verified.


23.2. Jurisdiction and Applicable Law

Whatever the nationality of those involved, the competence of the Brazilian judicial authority must be respected in cases where1: (i) any of the parties is domiciled in Brazil, including the guardian if it is an action related to child custody; (ii) when the obligation must be fulfilled in Brazil, such as, for example, actions related to alimony for the benefit of residents in the national territory; and (iii) if the action originates from a fact that occurred or from an act practiced in Brazil.

In addition, they must file before the Brazilian judicial authority, to the exclusion of any other2, actions  involving disputes over the ownership of real estate located in Brazil; actions dealing with inheritance law, be it the opening and confirmation of a public or private will or inventory, when there are assets to be shared and that are in Brazil, such as bank accounts, credits, real estate, even if the deceased person is a foreigner or has domicile outside the national territory, or even if all heirs live in another country.

However, the fact that the Brazilian Judiciary is competent for the matters mentioned above does not make it mandatory that the applicable legislation be that of Brazil.

For example, if one of the bride and groom is domiciled abroad at the time of the marriage, the law of that country regarding the property regime must be observed, or if the couple is domiciled in different countries, the legislation of the first marital domicile must be observed, and for the decision, the Brazilian judge charged with adjudicating the claim may require the parties to present proof of the text of the applicable foreign legislation, as well as its validity.

1Art. 21 of the CPC – It is incumbent upon the Brazilian judicial authority to prosecute and judge actions in which: I – the defendant, whatever his nationality, is domiciled in Brazil; II – in Brazil the obligation must be fulfilled; III – the basis is a fact that occurred or an act performed in Brazil. Single paragraph. For the purpose of item I, a foreign legal entity that has an agency, branch or branch is considered to be domiciled in Brazil.

Art. 22 of the CPC – It is also incumbent upon the Brazilian judicial authority to prosecute and judge actions: I – maintenance, when: a) the creditor is domiciled or resident in Brazil; b) the defendant maintains ties in Brazil, such as possession or ownership of goods, receipt of income or obtaining economic benefits; II – resulting from consumer relations, when the consumer has domicile or residence in Brazil; III – in which the parties expressly or tacitly submit to national jurisdiction.

2Art. 23 of the CPC – It is incumbent upon the Brazilian judicial authority, to the exclusion of any other: I – to hear actions related to real estate located in Brazil; II – in matters of hereditary succession, proceed with the confirmation of a private will and the inventory and distribution of assets located in Brazil, even if the author of the inheritance is of foreign nationality or is domiciled outside the national territory; III – in divorce, legal separation or dissolution of a stable union, proceed with the sharing of assets located in Brazil, even if the holder is of foreign nationality or is domiciled outside the national territory.


23.3. Property regimes provided for in the Brazilian legal system

There are five property regimes provided for in current legislation and, except for the mandatory separation of property regime, explained below, the bride and groom can choose the regime they wish to adopt, and the chosen property regime will have different implications in the division of property in case of divorce and in the participation of the inheritance of the other. The general rule is that of partial community property, that is, in the silence of the spouses, such a regime is adopted. If the bride and groom do not want this regime, they must, at least 5 (five) and a maximum of 90 (ninety) days before the wedding, go to a notary’s office and write a prenuptial agreement choosing the property regime.

Although the prenuptial agreement may contain clauses that go beyond the patrimonial issue, such as the religious education of the children, the division of domestic tasks, etc., the autonomy of the spouses is limited, especially regarding the effects of the chosen property regime, changes in the rules successions, among others.

The regime adopted, by the way, since the current Civil Code came into force, is no longer immutable as before. To change the property regime adopted3, it is necessary that both spouses apply in a court, provided that they explain the reasons why they intend to change the regime and safeguard any rights of third parties.

It is worth noting that all rules relating to property regimes are applied not only to marriage but also to stable unions.

3Art. 1639 of the Civil Code. It is lawful for the spouses, before the marriage is celebrated, to stipulate, as regards their assets, whatever they see fit. of assets, upon judicial authorization in a reasoned request of both spouses, ascertaining the origin of the invoked reasons and safeguarding the rights of third parties.


23.3.1. Regime of partial communion of goods (legal regime)4

The regime of partial communion of goods is known as the legal regime, considering that it is the regime to be adopted in case the spouses remain silent, that is, in case they do not sign a prenuptial pact5. Under this regime, only assets acquired for consideration during the marriage are communicated between the spouses. There is no need for either party to prove the effort or ability to acquire the common good, as it will be shared at the rate of 50% for each one, even if it is only in the name of one or the other spouse.

In this property regime, the assets acquired during the marriage are not communicated between the spouses, however, as a result of a very personal relationship (goods for personal use, earnings from work), those acquired due to a situation prior to the marriage (goods acquired by inheritance or by subrogation, that is, acquired with values exclusive to one of the spouses and before the marriage), or even the result of a donation only in favor of one of the spouses.

As will be seen below, if the stable union is not regulated by public deed or private contract, establishing the different property regime, the partial community regime is considered applicable.

4Art. 1658. In the regime of partial communion, the goods that come to the couple during the marriage are communicated, with the exceptions of the following articles.

Art. 1659. The following are excluded from communion: I – the assets that each spouse possesses when they marry, and those that come to them during the duration of the marriage, by donation or succession, and those subrogated in their place; II – goods acquired with values exclusively belonging to one of the spouses in subrogation of private property; III – obligations prior to marriage; IV – obligations arising from unlawful acts, unless reversal for the benefit of the couple; V – goods for personal use, books and professional instruments; VI – the income from the personal work of each spouse; VII – pensions, half-payments, monies and other similar income.

Art. 1660. The following enter into communion: I – property acquired during the marriage for onerous title, even if only in the name of one of the spouses; II – goods acquired due to an occasional fact, with or without the work competition or previous expense; III – goods acquired by donation, inheritance or legacy, in favor of both spouses; IV – improvements in private property of each spouse; V – the fruits of the common goods, or of the particulars of each spouse, perceived in the constancy of the marriage, or pending at the time of ceasing communion.

Art. 1661. Assets whose acquisition has a cause before the marriage are incommunicable.

Art. 1662. In the regime of partial communion, movable property is presumed to have been acquired during the marriage, when it is not proven that it was acquired on an earlier date.

Art. 1663. The management of common property is the responsibility of either spouse. § 1 Debts contracted in the exercise of administration oblige the common and private assets of the spouse who manages them, and those of the other in proportion to the profit that has been earned. § 2 The consent of both spouses is required for acts, free of charge, that imply the assignment of the use or enjoyment of common property. § 3 In case of misappropriation of assets, the judge may assign administration to only one of the spouses.

Art. 1664. Communion goods are responsible for the obligations contracted by the husband or wife to meet family expenses, administrative expenses and those resulting from legal imposition.

Art. 1665. The administration and disposal of assets constituting the private equity are the responsibility of the owner’s spouse, unless otherwise agreed in an antenuptial agreement.

Art. 1666. Debts contracted by either of the spouses in the management of their private property and for their benefit do not oblige the common property.

5Art. 1640. If there is no agreement, or if it is null or ineffective, the regime of partial communion will be in force concerning property between the spouses. Sole Paragraph. The spouses may, in the qualification process, opt for any of the regimes that this code regulates. As for the form, the option for partial communion will be reduced to term, making the antenuptial agreement by public deed, in the other choices.


23.3.2. Regime of universal community property6

In turn, the system of total community property matters, as the name itself says, in the community of all goods, which the betrothed already possessed when they got married, present and future of the couple. Both goods and debts are divided, and everything is common to both.


The only exceptions to the communicability rule are goods engraved with a non-communicability clause, which does not extend to fruits, unless otherwise provided.


23.3.3. Separation of property regime7

Another regime of extreme importance in the national legal system is that of the separation of assets, which obviously means that all assets acquired individually by the spouses cannot be communicated, as long as they have not contributed to their acquisition, just as debts that are on behalf of each.

The importance of this regime, however, does not simply come from its characteristics, but from the fact that the legislator elected it as mandatory for certain spouses, interfering too much with the freedom of choice of the parties. It is important to point out that there is discussion in the Federal Supreme Court whether this norm will be revoked or not, because there is an understanding that violates the individual right of choice and free will.

Among those who are obliged to marry under the regime of separation of property8, the person aged 70 (seventy) years or older stands out. In this case, doctrine and jurisprudence understand that, if there is no express provision to the contrary signed by the spouses, the assets acquired during the marriage by common effort will communicate, even if registered in the name of only one of them. So much so that the Federal Supreme Court edited Precedent 377, according to which “under the regime of legal separation of property, those acquired during the marriage are communicated”, provided that the common effort is proven.


23.3.4. Regime of final participation in the quests9

In addition to these, a new property regime was introduced by the Civil Code of 2002, according to which there is a separation of property during the marriage, each preserving its assets, which are freely managed, except for properties, which depend on the authorization of the another to sell, and the spouses may establish in the antenuptial agreement that they waive the consent of the other for the sale of real estate.

However, with the dissolution of the marriage, each of the spouses is responsible for half of the assets acquired for consideration during the marriage, which is why the legislation establishes criteria for the identification and calculation of the assets to be divided. There is, in this case, an accounting calculation, in order to establish the participation of one spouse in the other’s affairs, excluding from there the assets prior to the marriage, those subrogated to them, those that come to each one by succession or liberality and the debts related to these assets.


Even though it is a regime introduced in the current Civil Code, the regime of final participation in the quests is already known in several countries, in which, however, it is little used, notably due to the complexity of the accounting calculation required when eventual separation of the couple.


23.4. Stable union10

The Federal Constitution recognizes the stable union as a family entity, configured by public, continuous and lasting coexistence, with the interest of constituting a family, in which, unless a contract or deed provides otherwise, the regime of partial communion of goods is adopted, whose consequences of such a regime will be adopted both in the case of divorce and succession.

There is no requirement in the law for a minimum period of coexistence to be characterized as a stable union, nor is there an obligation for the parties to live in the same residence.

It is worth mentioning that, as already mentioned, the same rights and duties of marriage apply to stable unions, whether in the scope of family or inheritance law.

6Art. 1667. The universal community regime implies the communication of all present and future assets of the spouses and their passive debts, with the exceptions of the following article.

Art. 1668. The following are excluded from communion: I – donated or inherited goods with the incommunicability clause and subrogated goods in their place;

II – the engraved trust assets and the right of the trustee heir, before the suspensive condition is fulfilled;

III – debts prior to the marriage, unless they arise from expenses with their equipment, or revert to common benefit;

IV – prenuptial donations made by one of the spouses to the other with the incommunicability clause;

V – The goods referred to in items V to VII of art. 1,659.

Art. 1669. The incommunicability of the goods listed in the preceding article does not extend to the fruits, when they are perceived or matured during the marriage.

Art. 1670. The provisions of the previous Chapter, regarding the administration of goods, apply to the regime of universal communion.

Art. 1671. Once the communion is extinguished, and the assets and liabilities are divided, the responsibility of each of the spouses towards the other’s creditors will cease.

7Art. 1687. Once the separation of assets has been stipulated, these will remain under the exclusive administration of each of the spouses, who may freely dispose of them or encumber them with real encumbrances.

Art. 1688. Both spouses are obliged to contribute to the couple’s expenses in proportion to their income from their work and their assets, unless otherwise stipulated in the prenuptial agreement.

8Art. 1641. The regime of separation of property in marriage is mandatory:

I – of people who contract it with non-observance of the suspensive causes of the celebration of the marriage;

II – the person over 70 (seventy) years old; (Wording provided by Law No. 12,344 of 2010)

III – of all those who depend, to marry, on judicial supply.

9Art. 1672. In the regime of final participation in the acquisitions, each spouse has its own assets, as provided in the following article, and it is up to him, at the time of dissolution of the marital society, the right to half of the assets acquired by the couple, for consideration, during the duration of the marriage.

Art. 1673. Own assets include the assets that each spouse owned when they married and those acquired by them, in any capacity, during the marriage.

Single paragraph. The administration of these assets is exclusive to each spouse, who may freely dispose of them, if they are movable.

Art. 1674. Upon the dissolution of the marital society, the amount of the acquisitions will be determined, excluding from the sum of own assets:

I – the assets before the marriage and those that were subrogated in their place;

II – those who survived each spouse by succession or liberality;

III – the debts relating to these assets.

Single paragraph. Unless proven otherwise, movable property is presumed to have been acquired during the marriage.

Art. 1675. When determining the amount of the quests, the value of donations made by one of the spouses, without the necessary authorization of the other, will be computed; in this case, the asset may be claimed by the aggrieved spouse or their heirs, or declared in the shareable lot, for a value equivalent to that at the time of dissolution.

Art. 1676. The value of the assets alienated to the detriment of the moiety is added to the amount,  if the injured spouse or his heirs do not prefer to claim them.

Art. 1677. For debts incurred after the marriage, contracted by one of the spouses, only the latter will be liable, unless proof is provided that they have been partially or totally reversed to the benefit of the other.

Art. 1678. If one of the spouses settled a debt owed by the other with assets belonging to their property, the amount of the payment must be updated and imputed, on the date of dissolution, to the other spouse’s share.

Art. 1679. In the case of assets acquired through joint work, each of the spouses will have an equal share in the condominium or in the credit established in that way.

Art. 1680. Movable things, in the face of third parties, are presumed to belong to the debtor spouse, unless the property is for the personal use of the other.

Art. 1681. Real estate is owned by the spouse whose name appears in the registry.

Single paragraph. Once the ownership is contested, it will be up to the owner spouse to prove the regular acquisition of the assets.

Art. 1682. The right to moiety cannot be renounced, assignable or pledged during the matrimonial regime.

Art. 1683. In the dissolution of the property regime by legal separation or by divorce, the amount of the acquisitions on the date on which the coexistence ceased will be verified.

Art. 1684. If it is not possible or convenient to divide all the assets in nature, the value of some or all of them will be calculated for replacement in cash to the non-owner spouse.

Single paragraph. If it is not possible to make the replacement in cash, as many assets as necessary will be evaluated and, subject to judicial authorization, disposed of.

Art. 1685. In the dissolution of the marital society due to death, the surviving spouse’s moiety will be verified in accordance with the preceding articles, granting the inheritance to the heirs in the manner established in this Code.

Art. 1686. The debts of one of the spouses, when greater than their moiety, do not bind the other, or their heirs.

10 Art. 1723. A stable union between a man and a woman is recognized as a family entity, configured in public, continuous and lasting coexistence and established with the objective of constituting a family.

  • 1 The stable union will not be constituted if the impediments of art. 1521; the incidence of item VI does not apply in case the married person is found to be legally or de facto separated.
  • 2 The suspensive causes of art. 1,523 will not prevent the characterization of the stable union.

Art. 1724. Personal relationships between partners will obey the duties of loyalty, respect and assistance, and of custody, support and education of children.

Art. 1725. In a stable union, except for a written contract between the partners, the regime of partial community property applies to property relations, where appropriate.

Art. 1726. The stable union may convert into marriage, upon request of the partners to the judge and entry in the Civil Registry.

Art. 1727. Non-continuous relationships between a man and a woman, prevented from marrying, constitute concubinage


23.5. Regime of goods and commercial relations

As previously exposed, the freedom granted to the betrothed to establish the property regime that best suits them does not mean total freedom. The Brazilian legislator has established some limits to the clauses of prenuptial agreements, except for the regime of separation of property, in which the spouses have complete freedom and independence to dispose of their private assets.

And sometimes these limitations are reflected in commercial relationships, as they were created precisely to protect the couple’s common heritage, which in certain cases cannot be affected by obligations eventually assumed by only one of the spouses.

Among these limitations, the most relevant are set out in Article 1647 of the Civil Code, and refer to any burden assumed by one of the spouses without the consent of the other, and which may result in damage to the other spouse, namely:

I – dispose of or encumber the immovable property with real encumbrance;

II – claim, as plaintiff or defendant, about these goods or rights; III – provide suretyship or surety;

IV – make a non-remunerative donation of common goods, or those that may form part of a future share.”

Despite having 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 common heritage of the couple, so that neither spouse can assume obligations or dispose of the property without the marital authorization of the other.


Thus, if one of the spouses fails to obtain authorization from the other to carry out any of these acts, it will be annullable up to 2 (two) years after the end of the marital union.


Another relevant aspect that deserves attention is the prohibition imposed on married spouses under the regime of mandatory separation11 of property (in which one of the spouses is 70 (seventy) years old or more) or of universal communion who cannot jointly participate in the same business company, not even with third parties in the same company.

In the case of the mandatory separation of property regime, the prohibition is intended to prevent changes in the property relations between the spouses through the company that may be formed between them.

In turn, for those married under the community property regime, the obstacle is due to the fact that it would not be a partnership, as all the couple’s assets communicate so there would be a confusion of assets.

Thus, even though property regimes matter mainly to spouses, their nuances certainly have direct consequences on commercial relations, which is why attention must be paid to the regime adopted by a given person, whenever the contract may have implications for the couple’s assets.

11Art. 977. Spouses are free to enter into a partnership, between themselves or with third parties, provided that they have not been married under the regime of universal community property, or that of mandatory separation.


23.6. Judicial or Extrajudicial Divorce and Dissolution of Stable Union

For divorce and the dissolution of a stable union, which imply the extinction of the marital bond, it is not necessary to state the reasons for the rupture. Both can be carried out in the judicial or extrajudicial scope.

Judicial divorce can occur consensually or litigiously, while in the extrajudicial sphere, consensus between spouses or partners is mandatory.


In addition to the consensus, the extrajudicial route, which takes place through the drawing up of a public deed by one of the Notary Public Offices, requires that there are no provisions regarding the rights of children under 18 years of age or generated and not born, such as a pension, custody and cohabitation regime, because whenever there are minors or incapable persons involved, the intervention of the Public Prosecutor as an inspector of the law is necessary.


Thus, if there are minor or incapable children, the divorce will take place in the judicial sphere, one of the specialized Family courts or extrajudicially. The assistance of a lawyer is mandatory in both judicial and extrajudicial spheres.


If the spouse adopted the surname of the other when getting married, it can be maintained after the divorce, however, deleting the surname to return to the single name is a waiver of the adopter, who cannot be obliged by the other to return to using the maiden name.


23.7 Adoption in Brazil

Although it is not a business-related issue, the issue of adoption in Brazil, especially of Brazilian children by foreigners, has proven to be quite relevant.

The adoption of Brazilian children and adolescents by foreigners must take place through a judicial procedure and obey not only the same rules as for adoption by Brazilians but also others that are provided for in the Statute of Children and Adolescents (Law 8.069/90 – Articles 39 to 52-D). Adoption can be done by heterosexual or homosexual couples, or single-parent adoption, 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 18 (eighteen) years of age, the age at which full civil capacity is acquired, must be observed by the adopter, both by Brazilians and foreigners, are the following:


– be over 18 (eighteen) years of age;

– be at least 16 (sixteen) years older than the adoptee;

– consent of the adoptee’s biological parents or legal representatives, except if the parents are not known or have been stripped of parental authority; It is

– consent of the adoptee, if he/she is over 12 (twelve) years old.


Once these requirements are observed, the process will be opened, in which a psychosocial study will be carried out by a specialized agency accredited in the country of origin.

It is also possible that the international adoption is conditioned to a previous study and analysis by a state judicial adoption commission, which will provide the respective qualification report to instruct the process. The State Judiciary Commission for International Adoption – CEJAI of each state is the link between Brazilian Justice and international entities to adoption which promotes the facilitation of the process for international adoption.

Thus, adoption by foreigners is also authorized, demanding some requirements in addition to those necessary for Brazilians, not only to avoid abuses, but also to obtain greater security than the affective and protective criteria of the minor who will no longer be in the national territory.

Authors: Claudia Baptista Lopes and Regina Montagnini

De Vivo, Castro, Cunha, Ricca e 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]