Brazil and No-Fault Divorce

 This guest post is from Clelia Beatriz Muniz Britto, “Bia,” Regent Law LLM and  Family Law student:

 

Although no-fault divorce has spread rapidly in the U.S. in the last forty years, there are still some efforts being made by state lawmakers to make divorce more difficult to obtain, which can be a powerful weapon toward family restoration in the United States. Although in the United States each state is allowed to establish its own rules independently, in Brazil there is only one legislation that governs the entire country. For this reason, once no-fault divorce was established in Brazil in 2010, it became effective in the entire country, undermining any possibility to make it more difficult to obtain.

The Constitutional Amendment no. 66/2010 changed the previously existing rules regarding divorce. The previous requirements of prior legal separation and a de facto separation for a minimum of two years before proceeding with divorce are no longer effective. According to the amendment, all that is needed is the desire to dissolve the marriage through divorce. The spouses are allowed to request a divorce at any time in the marital partnership, and no allegation of fault on the part of either of the spouses is required. This proceeding is now called extra-judicial divorce, which is simply carried out by means of a contract between the parties signed before a notary public, provided that everything is in agreement, including the division of assets, and that there are no minor children incapable of caring for themselves.

One of the biggest problems with extra-judicial divorce is that it is no longer possible for a request for dissolution of the marriage to be extinguished as a result of reconciliation of the parties. On the other hand, many requests for the dissolution of marriage used to be extinguished as a result of the reconciliation of the spouses during the "reflection period" of legal separation, which once was required prior to divorce but currently no longer exists. In the current constitutional reality, once a couple has divorced, if they then wish to legally reconcile, they will have to undergo a new marriage, since divorce now creates a definitive legal dissolution. 

While no-fault divorce has been recognized for many people as a good development in family law, it reflects the devaluation of the family in the current world context. Brazil is but one example.