This article was authored by Hero Lomas .
As an expat living in Brazil or elsewhere you may not even realise that you have a choice of countries in which to divorce.
Can I get divorced in Brazil even if I didn't get married there?
Divorce in Brazil is possible if you married abroad and subsequently registered the marriage in Brazil.
Can I get divorced in England and Wales?
If you are an English or Welsh national living in Brazil you could issue divorce proceedings in England or Wales despite not living there or even having married there, based on your domicile.
Would my Brazilian divorce be recognised in England?
Yes, provided that the proper court process was followed and that at the date the divorce proceedings started, one of the couple was resident or domiciled in Brazil or was a Brazilian national. The other party must have had proper notice of the divorce proceedings and have been given an opportunity to respond.
How will our assets be divided if I divorce in Brazil?
The way the assets will be divided depends on the regime you decided to adopt when you registered the marriage. There are five choices but the following three are by far the most common:
- Total separation – each party keeps assets acquired by them whether before or after the marriage.
- Universal communion – All family assets, whether acquired before or after by the marriage, are split 50/50. (Inheritance and gifts may be excluded here).
- Partial communion – Everything acquired before the marriage goes to the party who acquired it. Everything acquired during the marriage is split 50/50.
If the marriage took place in England and was subsequently registered in Brazil the default regime, in the absence of a prenuptial agreement, would be partial communion.
If I married in Brazil how will my assets be divided if I divorce in England and Wales?
If the couple married in Brazil they would have had to choose one of the regimes mentioned above. The court in the UK would give effect to this as though it were a pre-nuptial agreement. They are likely to hold the parties to it as long as it was freely entered into and fully understood by them both, unless the circumstances meant that it was unfair to hold them to it. If one of the couple did not speak Portuguese or did not understand the implications of what they were signing the court may give the agreement reduced weight.
What about relocation of children from Brazil?
Any Brazilian child will require a notarised authorisation or authorisation in the passport to leave the country with just one of its parents, even for a holiday.
Any child, Brazilian or otherwise, who is habitually resident in Brazil will require authorisation from the other parent or the Court to move to another country. In a case where the left behind parent is Brazilian the Brazilian court is extremely unlikely to allow the other parent to take the child to live abroad Where both parents are foreign nationals however, the Court may be more inclined to permit relocation.
It is crucial to take early advice from a specialist family lawyer in each country in cases which involve more than one jurisdiction.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at info@expatriatelaw.com.
