1. Paulo Luís Quintela de Almeida 2017
29th Central European Colloquium of Civil Law Notaries EXTRAJUDICIAL DIVORCE: A SUCCESSFUL EXPERIENCE IN BRAZIL
Paulo Luís Quintela de Almeida
2017

2. BRIEF INFORMATION ABOUT BRAZIL AND ITS NOTARIAL SYSTEM
THE TRAJECTORY OF DIVORCE IN BRAZIL
POSSIBILITY OF EXTRAJUDICIAL DIVORCE SINCE 2007
PROSPECTS OF BRAZILIAN NOTARIES

3. BRIEF INFORMATION ABOUT BRAZIL AND ITS NOTARIAL SYSTEM

4. BRIEF INFORMATION - BRAZIL
5th largest country in the world - 8,515, km²
6th most populous - 207,660,929 people
9th biggest economy – GDP
US$ 1.8 trillion
BRICS

5. BRIEF INFORMATION - BRAZIL
1500 – Discovered by Portugal
– Portuguese overseas Colony
1822 – Independence of Brazil
– Empire of Brazil
today – Federative Republic

6. BRIEF INFORMATION - BRAZIL
Constitution of 1988 of the Federative Republic of Brazil
The Union
26 State Members + Federal District
5.570 municipalities
EXCLUSIVE competence of the Union in Civil Law and Civil Procedural Law
Notary and registry services will be exercised by the private sector under delegation of the public power – Member of UINL

7. THE TRAJECTORY OF DIVORCE IN BRAZIL

8. THE TRAJECTORY OF DIVORCE IN BRAZIL
Marriage under strong influence of the Catholic Church
Brazil Colony – Rules from Portugal
Empire of Brazil - Ecclesiastical rules
Republic – Lay State – Civil Marriage also indissoluble

9. THE TRAJECTORY OF DIVORCE IN BRAZIL
Divorce instituted by Constitutional Amendment, regulated by federal law, in 1977
Only one remarriage
Constitution of 1988 – multiple divorces
Federal Law 11,441/2007 – extrajudicial divorce
Constitutional Amendment 2010 – withdrawal of periods of separation for granting a divorce

10. POSSIBILITY OF EXTRAJUDICIAL DIVORCE SINCE 2007

11. EXTRAJUDICIAL DIVORCE SINCE 2007
Only JUDICIAL proceedings for divorce since 1977 and separations since 1891 until 2007
Federal Law 11,441/2007 added TWO ARTICLES in the Brazilian Civil Procedure Code/1973:
One reffering to INVENTORIES; and
Another referring to DIVORCES.

12. EXTRAJUDICIAL DIVORCE SINCE 2007
Article A. Consensual separation and consensual divorce, in the absence of minor or incapacitated children of the couple and observing the legal requirements regarding legal periods, can be made through a public deed, in which petitioners will describe and share common assets and agree about alimony as well as changing back to maiden name or keeping the married name.

13. EXTRAJUDICIAL DIVORCE SINCE 2007
Paragraph 1 - The public deed does not depend on judicial homologation and will be registered by marriage registrar and by the real estate registrar.
Paragraph 2. The notary shall only draw up the deed if parties are assisted by a common attorney or attorneys of each of them, whose qualification and signature shall appear in the notarial act.

14. EXTRAJUDICIAL DIVORCE SINCE 2007
Regulated by a RESOLUTION of National Justice Council –
Changes:
Constitutional Amendment of 2010;
New Brazilian Code of Civil Procedure of 2015 – nBCCP

15. EXTRAJUDICIAL DIVORCE SINCE 2007
Article 733 of nBCCP. Consensual divorce, consensual separation and consensual dissolution of civil union or partnership, in the absence of incapacitated children or unborn child and observing the legal requirements, can be made through a public deed, which shall include the provisions referred to in article 731 [sharing of common assets, alimony and changing back to maiden names or keeping married names].

16. EXTRAJUDICIAL DIVORCE SINCE 2007
Article 733 of nBCCP
Paragraph 1 - The public deed does not depend on judicial homologation and will be accepted by any registrar and financial institutions.
Paragraph 2. The notary shall only draft the deed if parties are assisted by an attorney or by a public defender whose qualification and signature shall appear in the notarial act.

17. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Section I
GENERAL PROVISIONS
Article 1 - To request a deed on the ground of Federal Law / 2007, parties are free to choose a notary, and territorial jurisdiction rules do not apply.
Article 2 - Judicial or extrajudicial proceedings are optional for parties, and at any time, they may ask a 30-day suspension or withdrawal of judicial proceedings in order to adopt the extrajudicial proceedings.

18. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 3 - Public deeds of consensual inventory, divorce and separation do not depend on judicial ratification and shall be accepted by registrars and by any entity in charge of transfer of assets and rights (Vehicles Register, Entities Registry, financial institutions, etc.)
Article 8 - An attorney or a public defender is required to request a deed, power of attorney dismissed, whose name and registration number at Brazilian Bar Association shall appear in the notarial act.

19. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 9 - It is forbidden for the notary to appoint an attorney to the parties, who must attend for the notarial act accompanied by a professional of their confidence. If the parties cannot afford to hire a attorney, the notary shall appoint them to the Public Defender's Office, if any, or the Sectional of the Brazilian Bar Association.
Article 10. (...) The State Court of Justice shall promote, within 180 days, adequate measures to unify information of these deeds at the state level, making public searches possible, preferably at no cost.

20. PROVISIONS COMMON TO CONSENSUAL SEPARATION AND DIVORCE
EXTRAJUDICIAL DIVORCE SINCE Resolution of National Justice Council
Section III
PROVISIONS COMMON TO CONSENSUAL SEPARATION AND DIVORCE
Article 33. In order to draft a public deed of consensual separation or divorce, it shall be presented to the notary: a) marriage certificate; b) official ID and taxpayer number; c) prenuptial agreement, if any; d) birth certificate or other official ID of the absolutely capable children, if any; e) certificate of ownership of real estate and related rights; and f) documents necessary to prove the ownership of the movable property and rights, if any.

21. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 34. The parties must declare to the notary, at the time of request, that they do not have children together or, if they do, they are absolutely capable, stating their names and dates of birth.
Single paragraph. The parties must also declare to the notary, at the same time, that the spouse is not pregnant or at least unaware of this condition. (Included by Resolution nº 220, dated )

22. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 35. The deed shall contain a statement declared by the parties that they are aware of the consequences of separation or divorce, firm in the purpose of ending conjugal society or marriage bond, without hesitation, with refusal of reconciliation.
Article 36. Any party or both may attend the public deed of consensual separation or divorce represented by an authorized representative, appointed by a notary public’s power of attorney, valid for thirty days, with special powers and description of the essential clauses of the deed.

23. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 37. If there are assets to be shared in the deed, parties shall distinguish the individual patrimony of each spouse, if any, from the common assets that may be shared, according to the matrimonial regime.
Article 38. If sharing of common assets implies transfer of goods from one spouse to another (unequal sharing), tax transfer must be paid and receipt must be presented to the notary.
Article 39. The sharing of common assets in a public deed of consensual separation or divorce shall be done according to the rules of sharing in extrajudicial inventory, as appropriate.

24. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 40. The public deed of consensual separation or divorce shall be presented to the Civil Registry Officer of the respective marriage, for the necessary endorsement, regardless of judicial authorization or hearing of the district attorney. It must contain a warning for parties to do so.
Article 42. Public deeds of consensual separation and divorce are not confidential.
Article 44. Alimony clauses in consensual separation or divorce may be consensually changed through ulterior public deed.

25. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 45. The public deed of consensual separation or divorce, regarding the agreement of keeping the married name, can be rectified in a new public deed signed only by the party interested in changing back the maiden name, with the assistance of an attorney.
Article 46. The notary may refuse to draw up the deed of consensual separation or divorce if there are evidences of disproportional damages for the interests of one of the spouses or reasonable doubt about the declared will, writing down the refusal reasons.

26. PROVISIONS CONCERNING CONSENSUAL SEPARATION
EXTRAJUDICIAL DIVORCE SINCE Resolution of National Justice Council
Section IV
PROVISIONS CONCERNING CONSENSUAL SEPARATION
Article 47. Requirements for drafting the public deed of consensual separation are: a) one year of marriage; b) manifestation of spontaneous and free will to no longer keep the conjugal society and separate according to the adjusted clauses; c) absence of incapable or minor common children who are not emancipated; d) lack of pregnancy of the virago spouse or lack of knowledge about this circumstance; and e) assistance of the parties by an attorney, which may be common.

27. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 48. The reconciliation of a conjugal society can be done by public deed, even if separation has been judicial. In this case, it shall be presented a marriage certificate containing the separation info.
Article 50. The conjugal society cannot be restored with modifications.

28. PROVISIONS REGARDING THE CONSENSUAL DIVORCE
EXTRAJUDICIAL DIVORCE SINCE Resolution of National Justice Council
Section V
PROVISIONS REGARDING THE CONSENSUAL DIVORCE
Article 52. Separate spouses may, through a public deed, convert the judicial or extrajudicial separation into divorce, maintaining the same conditions or changing them. In this case, it is not necessary to present an updated certificate of the judicial process, but only a marriage certificate containing the separation info.

29. EXTRAJUDICIAL DIVORCE SINCE 2007 Resolution of National Justice Council
Article 53. Parties statements are not enough to prove two years of separation in direct divorce. The notary must be sure the marriage took place more than two years ago and should gather documental evidences of the separation, if any, and may transcript in the deed witness's statements. (REVOKED by Resolution nº 120, of )

30. EXTRAJUDICIAL DIVORCE SINCE 2007
Estructure of a divorce deed:
I) Parties and attorney’s personal data;
II) Marriage data (or separation, if any);
III) Information on the absence of common children and pregnancy, or mention of the names and dates of births of capable children;
IV) Formal statement about awareness of the consequences and desire for divorce, with refusal of reconciliation;
V) Attorney’s statement about advising parties on the consequences of the divorce and attempting reconciliation, without success;

31. EXTRAJUDICIAL DIVORCE SINCE 2007
Estructure of a divorce deed:
VI) Formalization of consensual divorce, based on parties and their attorney’s statements, dissolving the marriage bond and terminating the duties of marriage;
VII) Agreement on names after divorce;
VII) Agreement for institution or dismissal of alimony;
IX) Relation of common and private assets, and sharing common goods, if any;
X) Miscellaneous statements and advise for parties to present the deed to the civil registrar for due registration;
XI) List of presented documents; and
XII) Closure.

32. EXTRAJUDICIAL DIVORCE SINCE 2007
Numbers in 10 years:
- 1.5 million notarial acts performed by 8,431 Brazilian notaries;
- 421,187 divorces;
- 852,929 inventories;
- 42,936 separations;
- 13,973 shares.
Estimated savings for public coffers - over 922 million euro

33. PROSPECTS OF BRAZILIAN NOTARIES

34. PROSPECTS OF BRAZILIAN NOTARIES
Possibility of extrajudicial divorce EVEN if there ARE minor or incapable children.
Participation of a DISTRICT ATTORNEY to make sure custody agreement meets children’s best interests.
Judiciary Power should just deal with contentious divorces.

35. THANK YOU VERY MUCH! Paulo Luís Quintela de Almeida
2nd Notary’s Office of Florianopolis/SC – Brazil
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Phone number: