Q&A section do Family Law 2023 Chambers Global Practice Guide
Access to the judiciary for filing divorce proceedings is immediate in Brazil because there is no requirement for prior attempts at consensual agreement, such as conciliation and private mediation. All that is required is for the interested party to take legal action. Judicial measures can be preparatory and of an urgent nature, in order to avoid the loss of rights of the interested party, and can involve the collection and blocking of assets, the establishment of provisional maintenance for the children and former partner, provisional custody and regulation of co-existence. Measures of an urgent nature are followed by final requests for divorce and sharing, maintenance, custody and co-habitation of children. The rules are identical for heterosexual and same-sex marriages and also apply to the procedures for the dissolution of a stable union.
Domicile and Residence
The concepts of domicile and residence are relevant to the definition of jurisdiction.
The residence is where the person regularly stays and, therefore, there may be several residences. The domicile is the place where the person establishes their permanent residence, so the residence and domicile can be the same place. The domicile is unique and can be considered where the person regularly carries out their professional activities. The domicile, regardless of residence, may be expressly established in contracts, pacts and/or terms.
If a person lives in several residences, and has not formally fixed their domicile, any one of the residences may be considered as the domicile. In the event of not having a habitual residence, the domicile will be considered as the place where the person can be found.
Determination of Jurisdiction
Pursuant to Brazilian civil procedural law, actions in the consensual or litigious modality will be proposed:
- at the domicile of the guardian (even factual) of an incapable child;
- in the last domicile of the couple, in the absence of an incapable child;
- at the defendant’s domicile, if neither party resides at the couple’s former domicile; or
- at the victim’s home in the case of domestic and family violence.
These are hypotheses of internal territorial jurisdiction and the interested party will be able to contest them, because they are not alleged ex officio by the judge.
Regarding the sharing of assets located in Brazil, the Brazilian judge has absolute jurisdiction, in view of the principle of national sovereignty.
As for nationality, the Brazilian judicial authority may prosecute and judge actions in which the party, whatever their nationality, is domiciled in Brazil. Therefore, once the interested party is established in Brazil, the divorce will follow the rites of Brazilian procedural law.
As for jurisdiction, an action filed before a foreign court does not lead to lis pendens, that is, it does not prevent the Brazilian judicial authority from hearing the same case and related ones, even if already initiated in some other international jurisdiction. There is, therefore, concurrent competence for the discussion of divorce, except for actions related to the sharing of assets located in Brazil, which are the absolute competence of the Brazilian judge, even if the holder is of foreign nationality or is domiciled outside Brazil.
The lis pendens of the case before the Brazilian jurisdiction does not prevent the ratification of a foreign court decision when required to produce effects in Brazil.
Contest of Jurisdiction
The competence for the divorce may be contested if it is proved that none of the parties resides or is domiciled in Brazil, even if the marriage took place in Brazil and/or one of the parties is Brazilian. In the matter of division, jurisdiction may be contested if it can be proved that there are no assets located in Brazil. As for judicial custody and maintenance, Brazilian jurisdiction may be contested if it can be proven that the child is not resident or domiciled in Brazil and is living abroad. In this case, the Brazilian judge, even if they are nationals, will not be able to analyse the actions and the jurisdiction may be contested. Therefore, for the purposes of Brazilian law, it is residence and domicile that determine jurisdiction, and not nationality.
1.2 Divorce Process
Divorce is a Potestative Right
Considering that divorce is a potestative right, for the dissolution of heterosexual or same-sex couples, the will of one of the parties and the existence of a valid marriage are sufficient to apply for a divorce. A stable union must be proven and judicially recognised, if it has not been declared by the parties by means of a public deed or private instrument, in order for it to be dissolved, producing its patrimonial effects and consequences for the children.
Currently, in order to carry out the dissolution of a marriage or stable union, there is no need to comply with prior separation deadlines or other requirements, except for the determination of one of the parties to terminate the relationship.
Types of Divorce
In Brazil, two types of divorce are allowed: the extrajudicial route, always consensual, and the judicial route, which may be consensual or litigious.
The extrajudicial divorce is processed before any notary public, by means of a public deed. There is no requirement for a prior period of separation or any other mandatory procedure.
The requirements are:
- capacity and consensus between the parties;
- the existence of a valid marriage; and
- the absence of incapable, minor and unborn children.
A lawyer or public defender assists the parties. In extrajudicial divorce, there is no secrecy of justice and the content is accessible to third parties because it is carried out in the form of a public deed.
The extrajudicial modality is therefore a faculty of the spouses and even if the requirements demanded for the extrajudicial route (which is faster) are fulfilled, the parties can opt for a consensual judicial divorce, as this modality guarantees the secrecy of justice according to its terms and conditions.
Divorce, even if consensual, must be processed before the judiciary and decreed by a judge, when it involves incapable persons, minors and/or unborn children. The agreement must, therefore, consider custody and co-existence of the parents with their children; maintenance for dependent or unborn children; the waiver or payment of maintenance to the ex-spouse/partner; and the use of the name. The agreement may also consider the division of assets, according to the regime adopted and the Public Prosecutor’s Office acts in the matter as a custos legis (“law inspector”).
In the absence of consensus, the divorce will be litigious and processed before the judiciary.
Although litigious, the request for divorce does not need cause or justification.
In the presence of incapacitated children or minors and unborn children, the Public Prosecutor’s Office acts as a law inspector.
When there is no consensus, one of the parties initiates the processes involving requests for:
- divorce, combined or not with sharing;
- custody and co-existence of the children; and
- alimony for the children.
These processes are always represented by a lawyer and/or public defender and are not linked to each other, but distributed freely, according to procedural rules. This means that they can be analysed at different times and by different judges.
Once the judge who must analyse and decide on the preliminary measures, if any (blocking of assets, alimony, custody and co-existence of children, etc), has received the case, the opposing party will be cited and summoned to defend itself and/or attend a prior hearing, accompanied by a lawyer or public defender for the attempted composition. If there is no agreement, the process follows its own rite, with the presentation of defence, production of evidence, hearing of instruction and sentence, appeals, etc.
A prior mediation hearing is not required for subsequent access to the judiciary.
Citation and Subpoena
The rules for service of process and subpoena on the opposing party in family actions are provided for in Article 695 and paragraphs of the Code of Civil Procedure. These establish, in summary, that the writ of service will contain only the data necessary for the hearing and must not be accompanied by a copy of the complaint. It must ensure the defendant the right to examine its contents at any time, and in order to be valid, the summons must occur at least 15 days before the date designated for the hearing and be served on the person of the defendant.
If there is no agreement after the due legal procedure and hearing of the member of the public ministry (in cases where there are incapable persons, minors and/or unborn children), the magistrate will issue a decision to decree the divorce and deliberate on the other matters addressed in the process. In the litigious processing of the sentence, an appeal can be made.
As long as it does not contradict the rules of public law, religious marriage may be recognised before the state as a civil marriage. Recognised as a civil marriage, it may be dissolved by divorce, according to the secular rules of the legal system. In the Brazilian jurisdiction, there is no religious divorce before the state, because there is separation between the state, which is secular, and the various religions professed in Brazilian territory.
Other Processes to End a Marriage
Although it is not configured as divorce, but as a possibility for ending a marriage, there are legal hypotheses of annulment and nullity in the act.
According to the law and the Brazilian Civil Code, civil marriage can be considered:
- null, where the following parties have married –
- ascendants with descendants, whether natural or civil kinship;
- in-laws in a straight line;
- the adopter with the adoptee’s spouse and the adoptee with the adopter’s spouse;
- siblings, unilateral or bilateral, and other collateral, up to and including the third degree of kinship;
- the adoptee with the adopter’s child;
- already married persons; or
- the surviving spouse with the person convicted of murder or attempted murder of their spouse; or
- voidable, in the following cases –
- those who have not reached the minimum age to marry;
- minors of marriageable age, when not authorised by their legal representative;
- wilful defect, under some terms (essentially, error or coercion);
- by the person incapable of consenting or unequivocally expressing consent;
- where it is performed by an agent, without the agent or other contracting party knowing of the revocation of the mandate, and where there is no co-habitation between the spouses; or
- due to the incompetence of the celebrant authority.
In both the above cases, the requests are processed through a lawsuit before the judiciary and aim to dissolve the marriage bond as if it had never existed.
The nullity request cannot be subject to a statute of limitations, while the annulment request must comply with the following deadline rules for bringing the marriage annulment action (starting from the date of celebration):
- 180 days, in the case of item IV of Article 1550 (where the person is incapable of consenting or unequivocally expressing consent);
- two years, if the celebrant authority is incompetent;
- three years, in the cases of items I to III of Article 1557 (where item I concerns the spouse’s identity, honour or good reputation; item II concerns ignorance of a crime prior to the marriage; and item III concerns ignorance, prior to the marriage, of an irremediable physical defect); or
- four years, if there is coercion.
The right to annul the marriage of minors under 16 years of age is extinguished in 180 days, counting from the day on which the minor reached that age; and from the date of the marriage, for the minor’s legal representatives or ascendants.
In the case of item V of Article 1550, the term for annulment of the marriage is 180 days, starting from the date on which the principal becomes aware of the celebration.
According to Article 23 of the Brazilian Civil Procedure Code, it is incumbent upon the Brazilian judicial authority, to the exclusion of any other, to proceed with the sharing of assets located in Brazil, even if the holder is of foreign nationality or is domiciled outside the national territory.
Respecting this rule, there is no prior requirement to initiate the action involving the discussion of assets arising from the marriage or common-law marriage. It is sufficient to enter the measure that may be accompanied by injunctions.
Thus, for the discussion of assets located in Brazil, the jurisdiction cannot be contested.
Even if a divorce or property-sharing process is begun in Brazil, the party will have to propose the action abroad for the property located outside Brazil. The Brazilian judge has no jurisdiction over assets located abroad, even if these assets are known and/or formally declared before the Brazilian tax authorities.
According to Articles 22 and 23 of the Brazilian Civil Procedure Code, Brazilian courts can hear financial claims after a foreign divorce if:
- they relate to common property located in Brazil; or
- they relate to maintenance when the creditor has domicile or residence in Brazil; or
- the debtor maintains ties in Brazil, such as possession or ownership of assets, receipt of income or obtaining of economic benefits.
2.2 Court Process
Proceedings involving financial assets may be prior judicial measures, with the granting of injunctions, or even incidental to proceedings involving the sharing of assets located in Brazil. These preparatory or incidental measures may require the search for or survey of assets, with the determination of orders to banks, brokerages, stock exchanges or companies, and may involve the breaching of tax and bank secrecy.
The process begins with a preliminary injunction and, in view of the risk of asset loss, may involve the blocking and seizure of assets known to the judge, as well as measures to raise and give full knowledge of the financial assets to the other party.
These measures begin with the assessment of the preliminary injunction by the judge, after which the subpoena and citation of the other party that will contest the action occurs. The issue will then be decided definitively within the scope of the sharing of assets.
2.3 Division of Assets
The Legal Rules of the Property Regime
The property division in the divorce will obey the rules of the property regime chosen at the time of the marriage.
When the parties do not choose, the legal regime of property provided for in Brazil is that of partial community of property, which does not require a prenuptial agreement. That is, this is the property regime applied to all marriages and stable unions in which no other regime has previously been established or imposed by law.
This property regime presupposes the common effort and communication of the assets acquired at a cost by either party during the term of the marriage or stable relationship. Assets received by donation or inheritance remain incommunicable regardless of the acquisition date. Assets subrogated to individuals are also incommunicable. The sharing will take place in the proportion of 50% of the collection considered common, regardless of who acquired it.
Types of Matrimonial Regimes
According to Brazilian law, the following property regimes can be applied to marriages and stable unions.
Universal community of property
This regime requires a prenuptial agreement signed by public deed before a notary before the marriage takes place and registered in the couple’s home registry after the marriage is celebrated. In the prenuptial agreement, specific rules of incommunicability can be established. As a rule, there is the communication of all assets, even those belonging to each spouse, acquired before or after marriage, free of charge or for a fee. Liabilities are also communicated. The sharing will obey the rules of the regime of total community of property and will take place in the proportion of 50% of all assets and liabilities, for each of the spouses or partners. This requires the grant for the sale and encumbrance of the assets.
Separation of property
This is established by means of a prenuptial agreement drawn up by public deed with a notary public before the marriage, which is then registered with the competent Real Estate Registry after the marriage. In it, there is no communication of assets and liabilities. The titleholders will always be the acquirers and there is no need to speak of a presumption of common effort, much less of sharing in the event of a divorce. It is possible for a spouse or partner to donate to the other, unless this practice is prohibited in the prenuptial agreement. It does not require granting of rights over private property.
Mandatory separation of property
This is the regime imposed by law for certain situations, namely:
- people who contract marriage in breach of the suspensive causes of marriage;
- a person over 70 years old; and
- all those who depend on judicial supply to marry.
In this regime of assets, there is no communication of assets, except if the common effort of the claims is duly proven, as provided for in Precedent 377 of the Supreme Court (Supremo Tribunal Federal or STF), in which case the sharing will take place in the proportion of 50% to each party. By means of a prenuptial agreement, which is mandatory in this regime, the incidence of Precedent 377 of the STF may be ruled out. This regime prohibits donations between spouses or partners. As a rule, there is no sharing and it does not require the granting of rights by the spouse.
Final participation in the quests
This is little practiced in Brazil. In such a regime, each spouse or co-habitant will own and manage their own assets, which will always remain incommunicable. At the end of the union, the claims for the time of marriage or stable union will be determined, even if arising from private or common property and divided in the proportion of 50% for each one. This requires the granting of rights over assets, even if private.
In the case of lack of knowledge of assets, especially financial assets that make up the assets accumulated by one of the parties in the constancy of the matrimonial or stable union, the aggrieved party may request, previously or incidentally to the sharing process, the search and/or blocking of assets and financial assets. The judiciary can determine the breach of banking and tax secrecy, carry out research with the Federal Revenue Service, the Central Bank, State Traffic Departments, Real Estate Registry Offices, etc. Once the assets are known, blocking and attachment can be determined. These measures can be enacted at the outset and are processed under secrecy of justice as they deal with financial and tax data.
Strictly speaking, there is no possibility of requiring orders against third parties, unless fraud in the property regime is previously proven.
There is No Trust under Brazilian Law
As for a trust, which is a company created with the specific purpose of asset management and protection, there is a regulatory gap in Brazil, as there is no specific provision in this regard, either as a legal transaction or tax regulation. There is Bill of Law No 4.758/2020, which provides for an institute similar to a trust, called a “contract of trust”, but this is still awaiting processing by the Federal Senate, with no forecast of when it will be finalised. There is also Bill of Law No 145/2022 pending in the Brazilian Congress, which deals with the law applicable to the trust, its effectiveness and its tax treatment in the country. There is also no forecast of when this will be finalised.
2.4 Spousal Maintenance
Spouses or partners in a stable union can ask each other for the maintenance they need to live in a manner compatible with their social status. If one comes to need maintenance, the other will be obliged to provide this through a pension to be fixed by a judge. This is determined, in general, on a transitory basis, based on the binomial represented by the financial capacity of the maintenance provider and the needs of the maintenance beneficiary, according to criteria of proportionality and reasonableness.
With the dissolution of the relationship, the party that feels in need can request the arbitration of provisional maintenance, proving its need, while awaiting the final decision regarding the amount and period to be defined for the payment of the maintenance. The so-called transitional alimony can also remain in force until the sharing of assets is effective, when a spouse/partner in need can live off the income and/or fruits of these assets.
In most cases, the maintenance claimed between spouses or partners is an exceptional obligation and is determined for a certain period, with the intention that the benefiting party can reorganise or find themselves a place in the labour market and seek other means of supporting themselves.
However, there is also the possibility that the instalment could be for life, depending on the circumstances proven on a case-by-case basis, which will also be analysed for the definition of the value, which is subject to revision, depending on the change in needs of those who receive it and/or the possibilities of those who pay. In order to define the value of the maintenance, the party in need must prove all their expenses and the amount must also comply with the financial capacity of the person who must pay the pension.
The judge can break the maintenance debtor’s tax and asset secrecy, request information from the financial and asset control bodies, and credit card administrators, and notify employers and third parties to find out the maintenance debtor’s assets and financial reality. The judge can also determine the payment of maintenance in discounts of credits of the maintenance debtor, such as wages, receipt of rent, credits, etc.
In addition, so-called “compensatory maintenance” has been gaining ground in doctrine and jurisprudence, despite not having a legal provision, with the purpose of compensating for the economic-financial imbalance between divorced parties, respecting the standard of family life, especially when there is no sharing of assets under the chosen regime.
2.5 Prenuptial and Postnuptial Agreements
In the Brazilian legal system, the prenuptial pact is recognised, but there is no postnuptial pact or agreement. In this context, there is only the possibility of judicial amendment of the property regime and this is subject to certain legal requirements.
The prenuptial agreement is the document through which the parties provide for the economic, patrimonial and/or personal aspects that will be followed in the marriage.
In it they establish the property regime or freely adapt the rules, while simultaneously respecting the legal prohibitions.
A prenuptial agreement is void if it is not made by public deed, and ineffective if the marriage does not follow. In addition, it will only be effective vis-à-vis third parties after it is registered with a competent real estate notary.
Amendment to the Property Regime
The only possibility of changing the property regime after marriage is through a judicial process, necessarily consensual, with proof of the reasons for the request and safeguarding the rights of third parties.
According to the understanding of the Superior Court of Justice, in the judgment of Special Appeal No 1.904.498-SP, of the 3rd Panel, whose rapporteur was Minister Nancy Andrighi, on 5 April 2021, the assets acquired before the judicial decision authorising the change of regime must remain under the rules of the previous regime, that is, the authorisation judicial review should only cover legal acts performed after the sentence (ex nunc effects). In addition, jurisprudence understands that spouses are not required to provide exaggerated justifications or evidence, disconnected from reality, especially in view of the fact that the decision granting the modification of the property regime has ex nunc effects.
The division of assets for unmarried couples (heterosexual or same sex) presupposes proof of the existence of a stable union maintained between them, that is, of a relationship lived with the purpose of establishing a married life in common.
A stable union is mainly characterised by continuous co-existence with affection, durability, publicity, mutual assistance and the intention to form a family. A stable union does not require a minimum period for its configuration. Co-habitation, financial dependence and children are not essential requirements for a relationship to be considered stable, but when they exist, the finding of a stable relationship is practically unequivocal.
Thus, when there is a breakup, the existence of a stable union must be demonstrated and recognised in court, if it has not been previously declared by the parties by means of a public deed or a private instrument. Only then can the union be dissolved, producing patrimonial effects (sharing of assets and/or fixing of alimony) and developments regarding the children (assignment of custody, alimony and regulation of co-existence).
When there is a document formalising the stable union and establishing a property regime, the property will be shared according to the rules established by the couple, as long as they do not contradict public rules. That is, the property regime established in a public deed or private instrument of recognition of stable union must be valid to be judicially enforced. If there is a document establishing the stable union but the property regime has not been elected, the division of property will take place according to the regime of partial community of property, that is, with the equal division of property. The same will happen if the recognition of the stable union is made in court by means of a declaratory action, with subsequent dissolution and sharing of assets, which will establish the fraction of 50% for each of the co-habitants of the assets acquired onerously in the course of co-habitation.
Failure to comply with a court decision or the terms agreed in a public deed of divorce or dissolution of a stable union leads to its judicial execution, by filing a request for compliance with the judgment or filing an enforcement action.
In the same way, the agreement made in a private mediation hearing, ratified by the court, or the arbitral decision is enforceable before the judiciary. Following the rite proper to each execution, the judiciary can determine the arrest, seizure and blocking of assets, provided they are located in Brazil, to enforce what has been agreed or decided. All coercive measures may be used on the defaulter’s assets to comply with the order, such as breach of tax secrecy, blocking of assets, seizure of movable and real estate, etc. The party can also make use of the protests of the credit, which implies the inclusion of the name of the defaulting party in the list of debtors with the banking and financial system.
The recognition and therefore, the execution of a foreign judgment In Brazilian is permitted, provided that it is not incompatible with the national legal system.
A foreign decision deliberating on a subject where the competence is exclusive to the Brazilian judicial authority, such as, for example, the definition and distribution of assets located in the national territory, will not be ratified either. Once ratified by the Superior Court of Justice and thus fulfilling the requirements, the foreign judgment has the condition of judicial enforceable title and can be fully executed on national soil.
2.8 Media Access and Transparency
The Brazilian constitution provides that the intimacy, private life, honour and image of people are inviolable, thereby limiting freedom of expression of thought and freedom of the press.
The Brazilian Civil Code in force provides that proceedings dealing with marriage, separation of spouses, divorce, separation, stable union, filiation, alimony and custody of children and adolescents are processed in secrecy of justice. Therefore, the processes that deal with these matters are not public, being accessible only to the parties, their attorneys, the magistrate and member of the public prosecution, and justice servants.
The Secrecy of Justice
The secrecy of justice is a right to preserve the privacy of the parties and the process itself, protecting it from possible external interference. When a case will not necessarily proceed in secrecy of justice, the parties may request secrecy and justify it, and depending on the magistrate’s assessment, a decree may be issued. In any case, it is certain that data protected by the constitutional right to privacy must be processed under secrecy of justice.
The Code of Ethics for Brazilian journalists prohibits the disclosure of information that violates the right to privacy of the citizen, which must mainly be considered with respect to matters dealt with in judicial proceedings that are processed in secrecy of justice.
Whoever disrespects procedural secrecy may commit an unlawful act and be liable for losses and damages.
2.9 Alternative Dispute Resolution
Alternative dispute resolution methods involve conciliation and mediation, which are carried out privately in this context. Experts in finance can assist parties if they wish, but in Brazil, there are no specific ADR methods for actions involving financial assets.
The use of ADRs is not mandatory, but may be advised by the magistrate. The process can be suspended for the parties to submit to the mediation sessions. In the same way, when dealing with available rights, the parties can use an arbitral tribunal, although this use is still very rare in Brazil.
In order to establish competence to prosecute maintenance actions, Brazilian law considers the domicile or residence of the child. The child’s residence is fixed to that of their guardian, albeit in fact. If the child’s domicile is fixed by disposition of the child’s legal representatives, and this place is not the child’s residence, there may be a discussion about the place of jurisdiction, the tendency of Brazilian law being to prefer the place where the child is located. The Brazilian jurisdiction welcomes the request for maintenance, with the setting of provisional maintenance, even in the case of foreign children, provided that they are resident and/or domiciled on national soil. There are no prior rites to be fulfilled and the request can even be formulated without lawyers being present, based on the special alimony law. If the child is not domiciled or resident in Brazil, the national judge, strictly speaking, does not have the competence for this discussion.
3.2 Court Process: Child Arrangements and Child Support
3.2.1 Child Arrangements
With the end of a relationship in which the parties had children, there is a need to establish judicially, regarding minors and incapable persons, the reference residence, custody (unilateral or shared), the regulation of co-existence with the non-custodial parent, and the alimony.
Currently in Brazil, the general rule is the establishment of shared custody, a modality in which there is sharing of responsibility and greater balance in the time of co-existence between parents and children, with a view to preventing the occurrence of parental alienation or any other psychological harm. Custody may be unilateral, depending on the circumstances of the case or the parents’ adjustment.
Where the parents do not agree, the court judges these actions based on the principle of the best and superior interest of the children. Thus, the financial conditions of one of the parents is not a determining issue for the definitions of custody and co-existence, but rather, where the affective interests and physical and intellectual development of the child will be better served.
The actions may rely on psycho-social studies, promoted by meetings of the parties with psychologists and social assistants indicated by the judge, who will make a better analysis of the factual situation, always prioritising the best interest of the child.
In these actions there is always the intervention of the public prosecutor, who will supervise matters involving minors and incapable persons, and may even limit or require changes to the agreements entered into by the parties, if the prosecutor understands that the interests of the children are not being properly served.
3.2.2 Child Support
Child maintenance is understood to be everything that is indispensable for the subsistence and dignified development of the child or disabled person, including, among others, all expenses with regard to housing, health, food, education, clothing, transportation and leisure.
Alimony is not fixed or defined in Brazil. The value is defined, through consensus or court order, based on meeting the needs of those who ask within the possibilities of those who pay. Both parents are called upon to contribute to the maintenance of their children, within their respective financial capacities, also taking into account the social standard of family life, depending on the case. The parties can reach an agreement on child support without having to file a lawsuit in advance. However, for the agreement to be enforceable it will need to be submitted to the Public Prosecutor’s Office and subsequently approved by the court.
The maintenance action starts with the request for, and setting of, provisional maintenance. The respondent is summoned to pay the provisional maintenance, appear at a hearing in an attempt at conciliation, instruction and judgment, and summoned to present their defence and evidence at that same hearing. The acts are concentrated in that action. With the decision of the judge, the interested party can appeal, and the provisional maintenance will be in force until the decision becomes final.
A child cannot apply for a pension on their own, but must be represented, in general, by one of their parents, or by another legal representative (guardian, curator, etc), or by the public prosecutor, who has legitimacy in these actions.
Power of the Court
In the event of disagreements, the parties may bring action to the judiciary. Litigious lawsuits involving issues related to custody and family life will be submitted to the judge, who may rely on a multi-disciplinary team to resolve the conflict. The judge may determine psycho-social studies, promoted by hearings of the parties with psychologists and social workers indicated by the judge, who will make a better analysis of the factual situation, always prioritising the best interests of the child.
As for religion, it is important to remember that children and adolescents are the subject of rights and, therefore, have the right to religious freedom. Logically, the right and duty to raise and educate their children in accordance with their own convictions is up to parents, given that the state will be responsible for interfering when there is a risk, or in the event, of damage to the best interests of minors.
Parental alienation is dealt with in Law No 12.318/2010 (amended by Law No 14.340/2022), which considers an act of parental alienation to be interference in the psychological formation of the child or adolescent promoted or induced by one of the parents, by the grandparents or by those who have the child or adolescent under their authority, and who campaign negatively or prevent or hinder contact, destroying or harming the child’s bonds with the other parent so that the child or adolescent repudiates and rejects the other parent.
Evidence of Children in Court
Whenever the magistrate deems it essential for the judgment of the case, children will be heard indirectly and through specialised listening, in an appropriate and welcoming place, with the infrastructure and physical space to guarantee their privacy.
The testimony of children and adolescents, under these conditions, has the force of judicial evidence. It is not taken in isolation, but considered with the set of evidence produced in the process.
3.4 Alternative Dispute Resolution
In the extrajudicial scope, the parties can use mediation for all matters related to family issues, including financial and property disputes. Mediation can be carried out in the pre-procedural phase or even after the litigation has started. Sessions are held in private chambers and in addition to private mediators and their lawyers, the parties can seek professionals with expertise in finance, accounting, valuation of assets, shareholdings, etc. Costs are at the expense of the interested parties.
The law that introduced arbitration in Brazil does not prohibit the use of the institute for family property and financial matters, as long as they are available rights. The institute is still little used, although the doctrine is increasingly defending this possibility.
Brazilian legislation establishes that conciliation, mediation and other alternative methods of consensual dispute resolution are not mandatory. However, the judge may determine the attempt at conciliation and/or mediation at the beginning or during the course of the judicial process and unjustified absence may be interpreted as an act that violates the dignity of justice. This can be penalised with a fine of up to 2% of the intended economic advantage or the value of the claim, reversed in favour of the union or the state.
If both parties show disinterest in the consensual agreement, there will be no penalty.
The agreement reached via conciliation or mediation must be taken for judicial approval and will thus have the force of a court decision. The arbitral award, in turn, does not need ratification and can be enforced in court.
3.5 Media Access and Transparency
Processes involving children, adolescents and vulnerable people due to some physical or mental condition have the right to confidentiality of their identity and the facts dealt with in the processes. They must proceed under secrecy of justice because they involve the constitutional right to intimacy, private life and identity.
Parents cannot authorise the disclosure of facts and circumstances relating to their children. All such processes are treated under the principle of secrecy of justice and are not accessible to third parties.
The Code of Ethics for Brazilian journalists, in Article 6, prohibits the disclosure of information that violates the right to privacy of the citizen, which must mainly be considered with respect to matters dealt with in judicial proceedings that are processed in secrecy of justice.
Whoever disrespects procedural secrecy may commit an unlawful act and be liable for losses and damages.
The law foresees that whenever cases are reported, the child must always remain anonymous.
4.1 Upcoming Reform and Areas of Debate
In Brazil, themes related to “multiparentality” and socio-affective filiation are in constant development. It is believed that cases involving the use of embryos, the hereditary rights of embryos, the use of a third-party uterus for pregnancy (surrogacy), and the recognition of the genetic identity of adopted children will also be themes for the future. Presently, however, there are no ongoing parliamentary reform developments around such issues.