Divorce for Brazilians Living in Portugal: The Options

The end of a marriage is, in itself, a difficult time. When the couple is Brazilian and lives in Portugal, or when one spouse lives in Portugal and the other stayed in Brazil, an additional practical question arises: in which country to get divorced, and how to make the divorce valid in both. There are basically two routes, the Brazilian and the Portuguese, and each has a follow-up step in the other country. In this article we explain each route carefully, so that the choice is made on an informed basis and with the least possible strain on the family.

First, a direct answer: does the consulate handle divorces?

Brazilian law allows consular authorities to perform the uncontested divorce of Brazilians who have no minor or incapacitated children, with the assistance of a lawyer (Art. 18, §§ 1 and 2, of the LINDB, Brazil's Law of Introduction to the Norms of Brazilian Law, added by Law 12,874/2013). In Portugal, however, the pages of the Consulates General of Brazil in Lisbon and in Faro state that jurisdiction over out-of-court divorce in the country lies with the Civil Registry Offices (Conservatórias do Registo Civil), and that the consulate does not perform divorces. Those living in Portugal must therefore choose between divorce in Brazil (with a power of attorney) and divorce in Portugal.

Route 1: divorce in Brazil, by deed, without leaving Portugal

When there is agreement, the divorce can be done by public deed at a Brazilian notary's office (cartório de notas), without court proceedings (Art. 733 of the Code of Civil Procedure (CPC)). Resolution 35/2007 of the National Council of Justice (CNJ) sets out the practical rules:

• Free choice of notary: the CPC rules on jurisdiction do not apply; the couple chooses the notary (Art. 1).
• Lawyer required: the notary only executes the deed if the parties are assisted by a lawyer or a public defender (Art. 733, § 2, of the CPC).
• Representation by power of attorney: personal appearance is not required. Each spouse may be represented by an attorney-in-fact, provided the power of attorney is public, grants special powers, describes the essential terms and has a validity period of thirty days (Art. 36).
• Documents: marriage certificate, identity document and CPF (Brazilian individual taxpayer number), prenuptial agreement if any, documents relating to the children and to the assets to be divided (Art. 33).

What if the couple has minor children?

Since CNJ Resolution 571/2024, a divorce deed is possible even with minor or incapacitated children, provided that custody, visitation and support have already been settled in court, which must be stated in the deed (Art. 34, § 2, of Resolution 35). If there is doubt about the child's interests, the notary refers the matter to the judge who issued the decision (§ 3). Without that prior court decision, the route in Brazil is court proceedings.

How to execute the power of attorney while living in Portugal

The public power of attorney can be executed at the Brazilian consulate, before a Portuguese notary with an apostille or, in certain cases, by videoconference via e-Notariado (Brazil's electronic notarial platform). Since the Resolution requires a thirty-day validity period, it is advisable to agree on the date with the notary's office before granting it. Details are on our page on powers of attorney between Brazil and Portugal.

The next step in Portugal: review of the Brazilian decision (revisão de sentença estrangeira)

A Brazilian divorce does not take effect automatically in Portugal. Absent an applicable treaty or regulation, the foreign decision must be reviewed and confirmed by the Court of Appeal (Tribunal da Relação) (Arts. 978 to 980 of the Portuguese CPC). Portuguese courts have also applied this requirement to divorce by deed. Review matters mainly to those who hold Portuguese citizenship, whose marriage is transcribed in Portugal or who need to prove their new marital status before Portuguese authorities, for example in order to remarry. See the page on recognition (review) of foreign judgments in Portugal.

Route 2: divorce in Portugal

Can Portuguese courts and registry offices decide?

In Portugal, international jurisdiction over divorce follows Regulation (EU) 2019/1111 (Brussels II ter). Under Art. 3, jurisdiction lies with the authorities of the Member State where, among other grounds, the spouses are habitually resident; where they were last habitually resident, if one of them still resides there; where the respondent is habitually resident; in the case of a joint application, where either spouse is habitually resident; or where the applicant is habitually resident, if he or she resided there for at least one year immediately before the application. The regulation treats as a "court" any authority with jurisdiction in the matter (Art. 2(2), point 1), which includes the registry offices. The couple's Brazilian citizenship does not prevent divorce in Portugal.

As for the applicable law, Portugal participates in Regulation (EU) No 1259/2010 (Rome III). Absent a choice by the spouses, the law of the country of their common habitual residence at the time the action is brought applies (Art. 8). The couple may choose in writing, among others, the law of habitual residence or that of one of their nationalities (Arts. 5 and 7).

Divorce by mutual consent at the Civil Registry Office

Where there is agreement, divorce can be requested at any time at the Civil Registry Office (Conservatória do Registo Civil), by an application signed by the spouses or their attorneys-in-fact (Art. 1775 of the Portuguese Civil Code), accompanied by:

• a list of the common property with values, or an agreement on its partition;
• a certificate of the decision that regulated parental responsibilities, or an agreement on them, if there are minor children;
• an agreement on support for the spouse who needs it;
• an agreement on the fate of the family home and of pets;
• a certificate of the prenuptial agreement (convenção antenupcial), if any.

The registrar checks the agreements and decrees the divorce, with the same effects as a court judgment (Art. 1776). If there are minor children, the agreement on parental responsibilities is sent to the Public Prosecutor's Office (Ministério Público), which gives its opinion within 30 days (Art. 1776-A). The fee charged by the Institute of Registries and Notary (IRN) for divorce by mutual consent is €280, or €625 when the proceeding includes the partition and registration of the marital property, according to the official IRN fee schedule.

Divorce in court

If any of the agreements is missing, the joint application goes to court, which decides the outstanding issues (Art. 1778-A). Without the consent of one of the spouses, divorce is requested in court on one of the grounds of Art. 1781, such as de facto separation for one consecutive year or other facts showing the definitive breakdown of the marriage.

Weighing which route makes the most sense for your family? Talk to our team. With lawyers in both countries, we can compare the two routes in your specific case.

The next step in Brazil: annotation (averbação) or recognition (homologação)

• Pure uncontested divorce (dissolution only, without custody, support or partition): it takes effect in Brazil without recognition by Brazil's Superior Court of Justice (STJ) (Art. 961, § 5, of the CPC) and is annotated directly at the civil registry office where the marriage is recorded, without the need for a lawyer (Art. 464 of the National Code of Rules, CNJ Provision 149/2023). Art. 465 requires a full copy of the decision, proof that it has become final and unappealable, and an apostille.
• Qualified uncontested divorce (with custody, support or partition) and contested divorce: these require prior recognition by the STJ (Art. 464, § 3). See the page on recognition of foreign judgments in Brazil.
• Marriage celebrated in Portugal and not registered in Brazil: marriage records of Brazilians made abroad must be transcribed (trasladados) at the 1st Civil Registry Office of the place of domicile in order to take effect in Brazil (Art. 32, § 1, of Law 6,015/1973). In this case, the transcription and the annotation of the divorce go hand in hand.

Assets in Brazil: a limit that applies to both routes

The partition of assets located in Brazil in a divorce falls under the exclusive jurisdiction of the Brazilian courts (Art. 23, III, of the CPC), and the foreign decision is not recognized in that respect (Art. 964). If the couple owns property in Brazil and divorces in Portugal, the partition of that property is carried out in Brazil, before a notary or in court.

Practical scenarios

• Couple living in Portugal, without children, in agreement: both routes are possible. The Civil Registry Office resolves it in Portugal, and the pure divorce is then annotated in Brazil. A deed in Brazil, with powers of attorney, resolves it there and requires review in Portugal when the divorce must take effect in Portugal.
• Couple with minor children living in Portugal: in Brazil, a deed is possible only after a court decision on custody and support. In Portugal, the agreement on parental responsibilities goes through the Public Prosecutor's Office at the Civil Registry Office. See also the page on child custody between Brazil and Portugal.
• One spouse lives in Portugal and the other in Brazil: the habitual residence of the respondent, or that of the applicant for at least one year, may ground Portuguese jurisdiction; in Brazil, the venue rules of Art. 53 of the CPC apply to court proceedings. The choice depends on where the children, the assets and the evidence are.
• No agreement: the divorce is judicial in either country. In Portugal, de facto separation for one year is one of the grounds.

Document checklist

• updated marriage certificate (Brazilian or Portuguese, depending on the registration) and prenuptial agreement;
• identity documents, CPF and, in Portugal, the Portuguese tax identification number (NIF);
• children's birth certificates and any decisions on custody and support;
• documents relating to the common assets, in both countries;
• public powers of attorney, if anyone is represented;
• apostille on documents that will cross the Atlantic.

Common mistakes

• Assuming that a divorce obtained in one country is automatically valid in the other. There is almost always a step of annotation, recognition or review.
• Granting the power of attorney too early. For the deed, the power of attorney is valid for thirty days.
• Including the Brazilian property in the partition made in Portugal. That part is not recognized in Brazil.
• Forgetting about marital status in the Portuguese registries. Those with Portuguese citizenship or a marriage transcribed in Portugal need to update the record.

When to consult a lawyer

It is worth talking to a lawyer before starting, especially when there are minor children, assets in both countries, one spouse in each country, Portuguese citizenship on the part of one of the spouses, or disagreement. Sene & Araújo has lawyers in São Paulo and Albufeira and assists Brazilians with divorce on both sides, mindful of the delicate moment the family is going through. See our page on divorce or get in touch.

• CNJ Resolution 35/2007, as amended by Resolution 571/2024 (Arts. 1, 33, 34 and 36)
• Law 13,105/2015 — Code of Civil Procedure (CPC) (Arts. 23, 53, 733, 961 and 964)
• Decree-Law 4,657/1942 — LINDB (Art. 18, §§ 1 and 2)
• CNJ Provision 149/2023 — National Code of Rules (Código Nacional de Normas) (Arts. 464 and 465)
• Law 6,015/1973 — Public Registries Law (Lei de Registros Públicos) (Article 32, § 1)
• Regulation (EU) 2019/1111 — Brussels II ter (Arts. 2 and 3)
• Regulation (EU) No 1259/2010 — Rome III (Arts. 5, 7 and 8)
• Portuguese Civil Code (Arts. 1775, 1776, 1776-A, 1778-A and 1781)
• Portuguese Code of Civil Procedure (Arts. 978 to 980)
• IRN — Service fees (Fee Regulation, items 6.1 and 6.2)
• Consulate General of Brazil in Lisbon — Divorce abroad
• Consulate General of Brazil in Faro — Information on divorce

Sene & Araújo Sociedade de Advogados team. Content prepared and reviewed by the firm's lawyers, admitted to the Brazilian Bar Association (OAB) and the Portuguese Bar Association (Ordem dos Advogados), with offices in São Paulo and Albufeira. The provisions cited were checked against the official sources listed above. Meet the team.