This paper aims to elucidate the main issues related to the Brazilian Family Law, not only in its material aspect, but also in relation to its application, or not,to the cases in which foreigners are involved, whether in succession or in divorce.
Additionally, in the cases where the Brazilian legislation applies, the impacts of the property systems on the commercial relations will also be analyzed.
Finally, since this is a topic of growing interest, the conditions and procedures for the adoption of Brazilian children by foreigners will be considered.
23.2. Jurisdictional Competence and Applicable Law
Whatever the nationality of those involved, the jurisdiction of the Brazilian judicial authority shall only be respected in cases where (i) either party is
domiciled in Brazil, and whenever the defendant is a national (whatever his or her nationality); the obligation must be fulfilled here, as, for example, the alimony actions, as here the food must be provided; and (iii) the action originates in fact occurred or of an act practiced in Brazil.
The Brazilian judicial authority shall also be respected, to the exclusion of any other, being: the actions related to real estate located in Brazil; in the matter of
succession, to confirm a public or private will and inventory, when there are assets to be shared in Brazil, such as bank accounts, credits, real estate, even
if the author of the inheritance is foreign or has a domicile outside of the national territory, or even that all the heirs live in another nation.
That is, the Judiciary of this country will have jurisdiction to settle any litigation between foreigners, who are domiciled in Brazil, or that the settlement of the
demand generate obligations that must be fulfilled in Brazil.
However, the competence of the Brazilian Judiciary does not impply that the applicable legislation is the Brazilian legislation. Regarding the family law, if the spouses are domiciled abroad at the time of wedding, the laws of their country of origin shall be observed in respect of the property system, or if the couple is domiciled in different countries, the legislation of the first conjugal domicile shall be observed, and for the decision, the Brazilian judge in charge of the demand may ask the parties to submit evidence of the applicable foreign law and its validity.
Thus, in the case of marriage in which at least one of the fiancés is not Brazilian, but both or the defendant resides in Brazil, the competence to solve questions regarding the separation and the property regime is of the Brazilian
23.3. Property systems provided by the Brazilian Legal System
Once the competence to clarify issues related to the termination of the marriage and their sharing of assets, it’s essential to present the property regimes of
marriage existing in Brazil and their characteristics.
There is a complete freedom of choice for the bride and groom to opt for the patrimonial regime in marriage. The general rule is that of partial community of properties. If the couple does not want this regime, they must, at least 30 (thirty) days before the marriage, go to any Notary to do a prenuptial agreement,choosing the property system (universal community, total or final separation).
The Brazilian legislature did not leave it to the pleasure of the parties to stipulate the terms of the prenuptial agreement, since it is certain that, besides offering certain regimes of properties, with predetermined rules, there are also certain restrictions to clauses of this pact, as can not oppose existing legislation, such as those that affect conjugal or parental rights.
The regime adopted, by the way, since the validity of the current Civil Code, is no longer unchanged as previously. In order to change the system of assets adopted, it is necessary to request a legal action by both spouses, provided that they are motivated, that is, they inform the reasons for such change, except for the rights of third parties prior to such change.
23.3.1. Partial Community Property systems (legal regime)
Among the property systems rules by the Civil Code, the most important is the Partial Community Property System, through which only the properties acquired for valuable consideration during the marriage are communicated
between the spouses.
Even in this property regime, the spouses do not communicate, for the simple fact that the other spouse did not compete for their acquisition, the properties acquired during the marriage but resulting from a very personal relationship personal properties, labor proceeds), due to a situation prior to marriage(properties acquired by inheritance or with exclusive values of one of the spouses and prior to the marriage, or of a donation made only in favor of one of the spouses).
The fact that the regime of partial community is also considered the legal regime of property is due to the fact that the legislator established this as the regime to be adopted in case the spouses are silent, that is, in case they do not sign an agreement prenuptial. This is also the reason for this being considered one of the most important regimes, since it is one of the most adopted by the
spouses, since there are still few cases in which prenuptial agreements are signed.
23.3.2. Community Property System
On the other hand, the community property system implies, as expressed by name, the community of all the properties, present and future of the couple, however, as in the system described in the prior item, with some restrictions.
Such restrictions do not refer to properties acquired due to a condition prior to marriage, but only to the exclusive ones, in addition to those recorded with a non communication clause, which does not extend to the income obtained thereby. Thus, in fact, the Brazilian legislature did nothing more than demonstrate consistency with its dispositions regarding the regimes of properties, excluding from the community the personal properties, as well as those recorded with a clause of incommunicability.
23.3.3. Separate Property System
Another system of extreme importance in the national legal system is the separation of properties, which of course is important in the non communicability of all properties acquired individually by the spouses, provided that they have not contributed to their acquisition.
The importance of this system, however, does not come simply from its characteristics, but from the fact that the legislator elected it as binding for certain spouses, interfering too much in the parties’ freedom of choice.
Among those who are forced to marry under the separate property system stands out the person over 70 (seventy) years. In this case, doctrine and jurisprudence understand that if there is no express provision to the contrary signed by the spouses, properties acquired in the course of 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 issued the summary 377, according to which “in the regime of legal separation of properties those acquired in the constancy of marriage are communicated,” provided that the common effort is proved.
23.3.4. Final Participation System in respect of Acquisitions
In addition, a new regime of assets was introduced by the Civil Code of 2002,according to which the property is separated from the marriage, preserving each one’s assets, which are administered freely, except for real estate, which depend on the authorization of the another to sell, and the spouses may establish in the prenup agreement that exempt the consent of the other for the alienation of the real estate.
However, with the dissolution of marriage, each spouse is responsible for half of the property acquired for consideration by the couple during marriage, which is why the law establishes criteria for the identification and determination of the assets to be divided. There is, in this case, an accounting calculation in order to establish the participation of one spouse over the other’s assets, excluding from there the assets prior to marriage, those subrogated to them, or liberality and the debts relating to those properties.
Although it is a regime introduced in the current Civil Code, the regime of the final participation in the acquisitions is already known in several other foreign legislations, in which, however, it is little used, mainly due to the complexity of the necessary accounting calculation when the couple separated.
23.4. Common-law Marriage
The Federal Constitution recognizes the Common-law Marriage as a family entity, configured by public coexistence, continuous and lasting, in which, except for a contract or deed available in a different way, the partial community of properties system is adopted, the consequences of which will be adopted both in the case of divorce and succession.
23.5. Property System and commercial relations
As explained above, the freedom granted to the spouses to establish the regime of assets that best suits them does not matter in total freedom. The Brazilian legislature has set some limits to the clauses of the prenuptial agreements, except for the separation of property regime, in which the spouses have total freedom and independence of disposition over their private assets.
And sometimes these limitations are reflected in commercial relations, since they were created precisely to protect the common property of the couple, which in certain cases can not be reached by obligations eventually assumed by only one of the spouses.
Among these limitations, the most relevant ones are set forth in Article 1,647 of the Civil Code, and refer to any liens assumed by one of the spouses without the consent of the other, and which may result in damages to the other consort, namely:
“I – dispose of or encumber real property;
II – plead, as author or defendant, about these properties or rights;
III – provide bond or guarantee;
IV – to donate, not being remuneratory, common properties, or those that may be part of the future process. ”
Despite the fact that the main provisions of the Civil Code are not exhaustive, it is not exhaustive, but as it may be noted, the limitations established by the legislation aim at preserving the common property of the couple so that neither spouse can assume obligations or dispose of without the marital authorization of the other.
Thus, if one of the spouses fails to obtain authorization from the other to perform any of these acts, it will be voidable until two (2) years after the end of the marriage.
Another relevant aspect that deserves attention is the prohibition imposed by article 977 of the Civil Code, according to which spouses married under the regime of compulsory separation of properties (in which one of the couple was 70 years or more) or community can not jointly participate in the same company, even if there are no third parties in the same company.
In the case of the system of compulsory separation of assets, the prohibition created by the legislator has the purpose of avoiding the modification of the property relations between the spouses through the company eventually constituted between them.
On the other hand, when married under the regime of community of properties, the obstacle is that it would not be a society proper, since all the properties of the couple communicate, so that there would be a confusion of the patrimony.
Thus, although the regimes of properties matter mainly to the spouses, it is certain that their nuances have direct consequences in the commercial relations, reason why one must be attentive to the regime adopted by a certain
person, when the contracting can have implications to the patrimony of the couple.
23.5. Adoption in Brazil
Although it is not a business question, the issue of adoption in Brazil, especially of Brazilian children by foreigners, has been very relevant, which is why it is not
too much to comment on the subject, especially the requirements for the procedure .
The adoption of Brazilian children by foreigners must take place through judicial procedure and obey not only the same rules of adoption by Brazilians, as expected, but also others that are provided for in the Statute of the Child and Adolescent (Law 8.069 / 90).
In addition to the obvious need for adoption to present real advantages for adoption, the objective requirements for the adoption of children under 18 eighteen) years, which must be observed by both Brazilians and foreigners are the following:
-more than 18 (eighteen) years of age;
– be at least sixteen (16) years older than the adopter;
– Consent of the parents or legal representatives of the adopting parent, except if the parents are not known or have been deprived of the father’s power; and
-confirmation of the child if he is over 12 (twelve) years of age.
Subject to these requirements, foreigners residing or domiciled outside Brazil must still meet the requirements of their own country’s legislation, as well as submitting the following documents proving that they are entitled to adoption:
-document issued by the competent authority of the country of origin proving that it is duly authorized for adoption under the legislation of that country;
-text of the legislation of the country of origin and proof of its validity authenticated by the consular authority and duly translated by a public sworn translator; and
-a psychosocial study prepared by a specialized agency accredited in the country of origin.
It is also possible that international adoption is conditional on a previous study and analysis of a state adoption judicial commission, which will provide the respective empowerment report to instruct the process.In São Paulo was created the Judiciary State Commission for International Adoption, which accredited several foreign entities linked to adoption, in order to facilitate the process of international adoption.
Once this documentation has been submitted to the Brazilian judicial authority and the requirements established by Brazilian law have been complied with and the authorization to adopt according to the legislation of the country of domicile of the adopter has been proven, before leaving the national territory it is still mandatory that there is an internship between the adopter and the child in Brazil for the period established in the sentence, which may not be less than 15(fifteen) days for children under 2 (two) years and 30 (thirty) days for the adopter to have more than Two (2) years of age.
Thus, although it is preferred that Brazilians adopt Brazilian children, adoption by foreigners is also allowed, demanding some requirements beyond those necessary for Brazilians, not only to avoid abuses, but also to obtain greater security of what will be observing the affective and protective criteria of the minor who will no longer be in national territory.
Author: Regina Montagnini, Coordinator of the Family and Civil Area at
De Vivo, Whitaker e Castro Advogados
Rua Leopoldo Couto de Magalhães Jr., 758
10º andar – Itaim Bibi
04542-001 São Paulo – SP
Tel.: (11) 3048 3266