On the 14th, the Special Court of the Court of Justice of Pernambuco unanimously approved Provision 06/2019, issued by the Office of the Inspector General of Justice of the TJPE, which makes possible the so-called “Imposed Divorce,” which can be carried out at a civil registry office by just one of the spouses, regardless of the presence or consent of the other.
The document was signed by the acting Inspector General, Appellate Judge Jones Figueirêdo Alves, president of the Family Magistrates Commission of the Brazilian Institute of Family Law (IBDFAM).
With this provision, it is no longer necessary to judicialize the divorce in the case of a unilateral wish. The request may be made at the civil registry office where the marriage was registered.
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After filing, the spouse will be notified for the purpose of prior knowledge of the recording, which will be carried out within five days after the notification. To file, the interested party must be assisted by a lawyer or public defender.
To carry out the unilateral divorce, it is necessary that the couple have no children, or no unborn child, or no minor or incapable children. Being a unilateral act, it is understood that the petitioner has chosen to divide the assets subsequently, if any exist. Other matters, such as alimony or protective measures, must also be handled in the competent courts.
According to Figueirêdo, the provision brings many benefits. “It will help and protect the assaulted woman who does not have an immediate divorce available. I think of the absolute dejudicialization of divorce, since it is a potestative right,” he states.
Rodrigo da Cunha Pereira, national president of IBDFAM, in turn emphasizes that the provision reinforces the maxim of replacing the discourse of guilt with that of responsibility, mirroring the finalistic interpretation of Constitutional Amendment No. 66/2010 – drafted by IBDFAM – which facilitated the divorce process.
“I see as progress the possibility of either spouse requesting the divorce directly at the Civil Registry, since it preserved the spirit of EC No. 66/2010, whose purpose is simplification, facilitation, less state intervention, freedom, and greater private autonomy, in addition to not discussing guilt, thereby putting an end to deadlines for decreeing the divorce,” he declares.
The lawyer recalls that divorce was introduced in Brazil in 1977, in a historical-political-social context in which the freedom of individuals is the expression that must give the command, since the family has become de-patrimonialized, lost its rigid hierarchy, and ceased to be essentially an economic and reproductive nucleus.
“With the advent of EC No. 66/2010, which instituted direct divorce, this procedure became simplified, imposing a potestative right, that is, one to which there corresponds no duty but rather subjection. The will of one of them is enough for the divorce to be decreed, since guilt for the end of the marriage is no longer discussed. Perhaps the desire is not truly forever in some relationships. Effecting separation by way of divorce is a remedy and a necessary ritual. There is no guilty or innocent party, no villain or hero,” he emphasizes.
Imposed Divorce – without bureaucracy
For the president of the IBDFAM Family Lawyers Commission, Marcelo Truzzi, the provision is an extremely positive and valid initiative. He recalls that a decade ago he wrote about it suggesting a similar solution for the hypotheses of indirect divorce. At that time, prior to Constitutional Amendment 66/2010, no discussion was admissible regarding the party’s right to obtain the divorce after the one-year period of separation. Once the time lapse was met, it was the party’s right to obtain the divorce and, for that reason, it made no sense at all to oblige them to go to court merely to ratify their wish. Which may now be different with the provision.
“It was bureaucratic, time-consuming, and unnecessarily costly. I understood it to be far more reasonable to have an administrative measure at the Civil Registry Office, where the fulfillment of that one-year period would be verified, with the consequent recording of the divorce, after prior communication to the other spouse. With Amendment 66/2010, the direction taken by the inspectorate of the TJPE seems correct, provided the requirements listed in the provision itself are met,” he says.
Truzzi stresses that the measure cuts bureaucracy, is fast, and less costly. However, he highlights two negative points. “First, I find the assistance of a lawyer unnecessary at this preliminary stage. It ends up burdening the party, imposing legal assistance of questionable usefulness, since at this stage the party is only formulating the divorce request, without deciding secondary matters, for which, then yes, the guidance of a lawyer will make all the difference,” he emphasizes.
On the second point, he questions the constitutionality of the provision. “The Civil Code textually establishes the forms of divorce, judicial and extrajudicial, the latter by public deed, making no reference to this administrative modality, in a request addressed to the Officer of the Civil Registry. It seems to me that a law disciplining the matter would be necessary. Notwithstanding this point, it is an initiative that cuts bureaucracy, facilitates, and reduces costs, and which, above all, swiftly and effectively safeguards the individual right of a person not to remain married,” he states.
Another position
President of the IBDFAM Notarial and Registry Commission, Priscila Agapito has another view on the provision, disagreeing with its feasibility. “With due respect, there is a lack of legal grounds for the normative provision of the so-called private ‘potestative divorce.’ The reduction of bureaucracy in matters involving the family had its initial milestone with the publication of Law 11.441, in the year 2007. The law amended the Code of Civil Procedure in force at the time, including an article specifically to assign new competence to notaries public, who began to draw up public deeds of separation and divorce. In the current Code of Civil Procedure, this provision is found in article 733, also applying to the dissolution of a stable union,” she emphasizes.
Although she agrees that divorce is a potestative right, the notary stresses that the law provides only two ways of achieving it: either optionally by public deed, if both spouses agree, or mandatorily through the judicial route, if there is a contested claim. The drawing up of the public deed, in turn, she emphasizes, is the exclusive competence of the notary, as determined by art. 7 of the same Law 8.935/94: “Art. 7 Notaries public have exclusive competence to: I – draw up deeds and powers of attorney, public.”
“The provision confuses the notary’s function with the activity of the civil registrar of natural persons. Law 8.935/94 is clear in dictating that it is for the notary (or notary public) to formalize the will of the parties. This federal law regulates article 236 of the Federal Constitution and establishes the competence of the notary public, and in its art. 6 provides: ‘Art. 6 Notaries are competent to: I – legally formalize the will of the parties; II – intervene in the legal acts and transactions to which the parties must or wish to give legal form or authenticity, authorizing the drafting or drafting the appropriate instruments, preserving the originals and issuing faithful copies of their content; III – authenticate facts,’” she declares.
In her view, the one who creates or draws up the legal act is the notary public. It is for the civil registrar of natural persons to give publicity to pre-existing legal acts or facts, such as, for example: a birth that has already occurred (whose fact is proven by the Declaration of Live Birth), a marriage celebrated by the state entity (Justice of the Peace, or marriage judge), and deaths (grounded in death declarations). She stresses that the civil registrar checks, files, and gives publicity, but does not intervene in or formalize the will of the parties; that activity is exclusive to the notary public.
“Law 11.441/07, which dealt with the reduction of bureaucracy in the procedures of separation, divorce, and inventory, already determined that the intervention of the state entity is necessary for the formalization of will, and transparently clarified that it is either the judge or the notary, both impartial. It is a requirement of validity. In my modest understanding, a provision cannot change or alter a legal rule, suppressing the presence of the judge or notary, trivializing the solemnity of the dissolution of marriage. The civil registrar does not have the attribution to perform the marriage, but rather the Justice of the Peace. The registrar merely reduces to writing what he witnessed, giving erga omnes publicity to that legal fact,” she reiterates.
Priscila emphasizes that “it is essential to maintain the solid foundations of each institution, so that the performance of each state entity is not weakened, as well as social legal certainty as a whole. The current rule is already more than sufficient to reduce bureaucracy in divorce procedures, so much so that in 11 years of its existence, more than two million cases ceased to be filed, with savings to the Treasury of an estimated two billion reais. All of society has already become accustomed to the role of the notary and the lawyer in the current system; to modify this, without a legal basis, could affect a structure already strongly built.”
The notary concludes: “We therefore conclude that, although very well-intentioned, the provision was premature because it ran over legal pillars, and cannot prosper without the indispensable adjustments.”
Source: Brazilian Institute of Family Law – IBDFAM
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