Divorce Granted in Brazil: How to Have It Recognized in Portugal (Recognition of Judgment and Registration)

You divorced in Brazil, in court or at a notary's office, and now live in Portugal or have just obtained Portuguese citizenship. In Brazil, the matter is closed. In Portugal, however, the divorce may simply not exist: the Portuguese civil registry still shows you as married, and this comes up when you want to remarry, buy a property, renew documents or settle an inheritance.

This article deals with that specific case: how to have a divorce already granted in Brazil recognized in Portugal, whether by court decision or by deed. If you have not divorced yet and want to know in which country to do it, see our article on divorce for Brazilians living in Portugal.

The rule: the Brazilian divorce must be reviewed

Unless a treaty, convention, European Union regulation or special law provides otherwise, no decision on private rights issued by a foreign court has effect in Portugal, whatever the nationality of the parties, without being reviewed and confirmed (Art. 978(1) of the Portuguese Code of Civil Procedure). No European regulation applies to Brazilian divorce decisions, so the path is the special action for recognition (review) of a foreign judgment (revisão de sentença estrangeira) before the Court of Appeal (Tribunal da Relação).

Review is only waived when the decision is relied on in proceedings already under way in Portugal, simply as evidence to be assessed by the judge (Art. 978(2)). To update the civil registry, that is not enough.

What about a divorce granted at a notary's office?

Many Brazilians divorce by public deed, without court proceedings (Art. 733 of the Brazilian CPC). It is common to assume that, because there is no judgment, there is nothing to review. Portuguese courts, however, have held that a divorce deed executed by a Brazilian notary is also subject to review, because it has the same force as a judgment and is issued by the Brazilian authority competent for the act. Our page on recognition cites, among others, the judgment of the Lisbon Court of Appeal of October 24, 2019 (Case 2403/19.8YRLSB). In practice, an out-of-court divorce follows the same path as a court divorce.

Who needs to have the divorce recognized in Portugal

• People with Portuguese citizenship, by origin or acquired after the divorce. Foreign decisions on the marital status of Portuguese citizens, once reviewed and confirmed, are annotated on the records to which they relate (Art. 7(1) of the Civil Registry Code (Código do Registo Civil)), and facts subject to mandatory registration can only be relied on after they are registered (Art. 2). This is the typical case: the person obtains citizenship, transcribes the marriage and discovers they need the review to register the divorce.
• People whose marriage is transcribed in Portugal, for example because the former spouse is Portuguese. Until the divorce is annotated, the Portuguese registry continues to show the marriage.
• People who want to remarry in Portugal. The preliminary marriage procedure requires proof of marital status; for foreign nationals, a certificate that no impediment prevents the marriage under their personal law (Art. 166 of the Civil Registry Code). If there is a Portuguese record of the previous marriage, review of the divorce is essential.
• People who need to prove their marital status before Portuguese authorities in other acts, such as a property purchase deed, a partition or an inheritance. If the marriage appears in the Portuguese registry, the former spouse may continue to appear as spouse until the divorce is annotated.

For foreign nationals, Art. 7(2) of the Civil Registry Code makes decisions of foreign courts on their marital status subject to registration on the same terms. Whether the review is actually needed depends on the act to be carried out in Portugal and must be analyzed case by case.

What the Court of Appeal checks

The review does not reopen the divorce. The court does not discuss who was right or redo the partition; it checks formal requirements. For confirmation, the following are required (Art. 980 of the Portuguese CPC):

• there must be no doubt about the authenticity of the document or the meaning of the decision;
• the decision must be final and unappealable under Brazilian law;
• the jurisdiction of the Brazilian court must not have been invoked to evade the law, and the decision must not concern a matter within the exclusive jurisdiction of the Portuguese courts;
• there must be no pending proceedings (lis pendens) or res judicata in Portugal;
• the defendant must have been duly served, with respect for the right to be heard and the equality of the parties;
• recognition must not lead to a result manifestly incompatible with Portuguese international public policy.

Authenticity and public policy are checked by the court on its own initiative; the other requirements lead to refusal when the court finds they are missing from its examination of the case file (Art. 984). If the Brazilian decision was issued against a Portuguese citizen, that person may also challenge the application by arguing that the outcome would have been more favorable to them under Portuguese law, when that law should have applied under Portuguese conflict-of-law rules (Art. 983(2)).

Watch out for the partition of property in Portugal

Portuguese courts have exclusive jurisdiction over rights in rem in real estate located in Portugal (Art. 63(a) of the Portuguese CPC). If the Brazilian divorce also partitioned a Portuguese property, that part may meet resistance in the review. If there is custody and child support, note that the collection of support between Brazil and Portugal has its own regime, under the 2007 Hague Convention; see the pages on international child support and child custody.

How the process works, step by step

1. Documents in Brazil. Request the certified copy of the judgment (carta de sentença) for a court divorce, or the certificate of the deed for a notarial divorce, as well as full-content birth certificates, and apostille everything at a Brazilian notary's office (CNJ). Because they are in Portuguese, the documents do not need to be translated.
2. Petition to the Court of Appeal. The competent court is the Court of Appeal for the area where the person against whom the judgment is to be enforced is domiciled, with the adaptations of Arts. 80 to 82 when that person does not live in Portugal (Art. 979). Because the action is brought before a higher court, being represented by a lawyer is mandatory (Art. 40(1)(c)).
3. Service and opposition. The other party is served and has 15 days to oppose; the applicant may reply within the following 10 days (Art. 981). If the former spouse agrees with the review, there will be no opposition to discuss.
4. Submissions and judgment. Once the pleadings and any necessary steps are completed, the parties and the Public Prosecutor's Office have 15 days for written submissions, and the judgment follows the rules for appeals (Art. 982). The decision may be appealed to the Supreme Court of Justice on points of law (recurso de revista) (Art. 985).
5. Annotation. Once the decision is final and unappealable, the court notifies the Civil Registry Office (Conservatória do Registo Civil) of the confirmation, and the office annotates the divorce. For people with a Portuguese birth record, the dissolution of the marriage is also annotated on that record (Art. 69(1)(a) of the Civil Registry Code).

From then on, your marital status is up to date in Portugal, which is essential, for example, to annotate a new marriage or renew Portuguese documents, as we explain on the page on divorce in Brazil and registration in Portugal.

Do you need to update your marital status in Portugal? Sene & Araújo, with lawyers admitted to the OAB and the Portuguese Bar Association (Ordem dos Advogados) and offices in São Paulo and Albufeira, obtains the documents in Brazil and handles the review before the Court of Appeal. Talk to our team.

Documents usually requested

• certified copy of the court divorce judgment (carta de sentença) or certificate of the divorce deed, with the Hague apostille;
• full-content birth certificates of the former spouses, with the Brazilian ones apostilled;
• Portuguese certificate of the transcription of the marriage, if any;
• authenticated and apostilled copy of the foreign citizen's identification document, and a certified copy of the Portuguese citizen's Citizen Card (Cartão de Cidadão);
• Portuguese Criminal Record Certificate, in the cases indicated on our divorce page;
• proof of the parties' current residence;
• Power of attorney for legal representation.

Three common situations

• A woman divorced in Brazil by deed who has just obtained Portuguese citizenship: the marriage is transcribed and a review of the divorce deed is filed, so that the divorce is annotated in the Portuguese registry.
• A Brazilian man divorced in Brazil who wants to marry a Portuguese woman in Faro: the registry office will examine the proof of marital status in the preliminary marriage procedure. If the first marriage is registered in Portugal, the review of the divorce comes first.
• A couple divorced in Brazil with the partition of an apartment in Portimão: the review of the dissolution of the marriage may proceed, but the part of the partition concerning the Portuguese property requires separate analysis, as it involves the exclusive jurisdiction of the Portuguese courts.

Common mistakes

• Thinking that a divorce deed does not need review because it is not a judgment.
• Leaving the review until just before the new marriage, since court proceedings are not immediate.
• Sending documents without an apostille or plain copies of the judgment.
• Confusing it with recognition by Brazil's Superior Court of Justice (STJ), which is the reverse path, used to give effect in Brazil to a Portuguese decision. See the page on recognition of foreign judgments in Brazil.
• Ignoring the Portuguese registry until there is an inheritance, when the former spouse still appears as married to the deceased.

When to consult a lawyer

The review is a court proceeding, in which a lawyer is mandatory, filed directly with a higher court. Legal assistance helps to gather the right documents in Brazil, identify the competent court, deal with old divorces or service by public notice, and separate what can be confirmed in Portugal from what needs another path, such as the partition of a Portuguese property or the collection of support. Sene & Araújo handles these cases on both sides of the Atlantic. Contact us for a review of your case.

• Portuguese Code of Civil Procedure — Law 41/2013 (Arts. 40, 63, 978 to 985)
• Civil Registry Code — Decree-Law 131/95 (Arts. 1, 2, 7, 69 and 166)
• Law 13,105/2015 — CPC (Art. 733)
• CNJ — Hague apostille
• Sene & Araújo — Recognition of foreign judgments (case law: Lisbon Court of Appeal judgment of October 24, 2019, Case 2403/19.8YRLSB; STJ, Cases 623/12.5YRLSB.S1 and 687/12.1YRLSB.S1)
• Sene & Araújo — Divorce in Brazil and registration in Portugal (documents)

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.