The first aspect of divorce is that at least one person no longer wants to be in that relationship. The relationship can be abusive or it can be a conclusion of both, but when you have a marriage certificate that unites both in front of the law, there is a need for dissolution through legal mechanisms that will allow both to seek their rights – whether in terms of pension, division of property or custody of children – or even remarriage.
Divorce is a form of dissolution of conjugal society more advanced than judicial separation, since it puts an end to marriage and the civil effects of religious marriage. Incidentally, judicial separation is usually a preamble to divorce; being the first obtained, after one year may be completed by divorce (although the first is no longer necessary for the advent of the second paragraph of Article 226 of July 13, 2010).
Consensual divorce is by mutual consent of the spouses, drawing up an agreement that can be executed in a notary’s office. If there is no agreement between the consorts, a judge arbitrates the case, where the parties take the initiative, requesting the summons of the other.
The request for divorce, whether consensual or litigious, shall only be vested in the spouses, but may be exercised, in case of incapacity, by a conservator, ascendant or brother. For purposes of decision, according to art. 1,566 are the duties of both spouses:
- Reciprocal fidelity
- Living together in the conjugal home;
When divorce is consensual, the process can be done in a notary’s office with the presence of a divorce lawyer who can represent both parties, provided that (article 1,124- A of the CPC):
- There are no incapacitated dependents under the tutelage of the couple in question;
- There is a consensus on alimony, separation of assets, and adoption of the parties’ bimonthly names.
For the purpose of effecting divorce by notary office, the spouses must be provided with the following documentation:
1) Current marriage certificate, with a maximum of 30 days of issuance (can be issued at the notary’s office);
2) Identity document of both spouses, where the CPF is recorded;
3) Marriage contract or similar document, if any;
4) Birth certificate of the largest and most capable children;
5) In the case of sharing agreed between the parties, it is also necessary to take the relevant documents for the declaration of ownership, namely:
The) Certificate of real estate registration of all real estate pertinent to the share, with a maximum of 30 days of issue;
- B) Negative certificate of actual liens, such as financing, judicial restraints, among others, updated (i.e. issued by the Registry of Real Estate with a maximum of 30 days);
- W) IPTU card of the properties to be shared, with certificate of discharge of the same;
(d) Certificate of municipal taxes levied on real estate, with proof of discharge of the same; and) Declaration of discharge of condominium debts, which may be issued by the liquidator, when available;
- f) In the case of rural property, ITR statement or negative certificate of debts of rural property issued by the Federal Revenue Service and CCIR issued by INCRA;
- g) In the case of movable property, vehicle documents, stock statements, tax invoices of jewels, etc.
6) If there is a transfer of assets, the payment of taxes due, such as ITBI or ITCMD.
Once these documents are presented in a notary’s office, together with the petition draft and in the presence of a lawyer of the parties, the divorce is concluded with the writing of the public deed.
It is also worth noting that documented decisions have the effect of a law and the same validity as they were drawn up in court, based on the judicial decision rendered by a court of law.
