On May 15, the Court of Appeals for the State of Pernambuco (TJ/PE) approved a rule authorizing and regulating the so-called “unilateral divorce” or “authoritative divorce”. This rule theoretically allows for the dissolution of a marriage out of court at the request of only one of the spouses to a registry office. Appearance of both spouses at the office is not required. The Courts of Appeal for the States of Maranhão and Piauí have already issued similar rules.
Dissolution of marriage out of court has been allowed since 2007, when a federal law (Law No. 11,441) was enacted to regulate the procedure for that purpose: a public deed of dissolution of marriage was to be registered with a registry office. This procedure is allowed whenever both spouses agree with the dissolution of marriage and provided that they have no minor or legally incapable child.
What the TJ/PE did was allow a marriage to be dissolved out of court even without the consent of the other spouse. The requirement that the dissolution is only allowed when the couple has no minor or legally incapable child – already imposed by the previous law – persists.
Under the new TJ/PE rule, the spouse requesting unilateral divorce is presumed to have agreed that the division of the couple’s assets is to occur at a later stage.
For the TJ/PE, the main reason for the Court to authorize unilateral divorces is that the Federal Constitution prescribes that divorces are not to be subject to any restriction or requirement. Divorcing is, thus, a subjective right of any spouse that wishes to end their marriage, for any reason. This is why, according to the TJ/PE, the consent of the other spouse or even court intervention would be unnecessary.
On May 30, however, the National Council of Justice (local acronym CNJ) took a different position. Contrary to the TJ/PE, the CNJ determined that the Courts of Appeal of all Brazilian States are to refrain from issuing rules to regulate the registry of unilateral divorce deeds out of court at the initiative of only one spouse (unilateral divorce), except in case of consensual divorce, consensual separation and termination of civil marriage, as provided for in section
733 of the Code of Civil Procedure.
The CNJ’s decision was backed by the Family and Probate Law Association, the ADFAS. According to the ADFAS, it is not up to judicial courts – but else to the Brazilian Legislative – to legislate on the subject.
Despite the CNJ’s decision and the ADFAS support, the debate on whether unilateral divorce is possible is far from being over.
For the president of the Family Lawyers Commission of the Brazilian Family Law Institute (IBDFAM), for instance, the TJ/PE’s decision is a step towards debureaucratization, and this is why it incited the CNJ’s prohibition.
Until the CNJ issues a final decision on the subject or until a new law is enacted to expressly allow unilateral divorced – and, incidentally, there is a bill pending in congress with respect to that subject – out of court unilateral divorce procedures are prohibited. Therefore, the only way for a spouse to dissolve marriage whenever the other spouse does not consent is to file for divorce in court.
