Child and Spousal Support Between Brazil and Portugal

2007 Hague Convention

The Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of November 23, 2007 was promulgated in Brazil by Decree 9,176/2017, together with the Protocol on the Law Applicable to Maintenance Obligations. According to the official HCCH status table:

• Brazil: ratified on July 17, 2017; the Convention has been in force since November 1, 2017.
• European Union and Portugal: the EU approved the Convention on April 9, 2014, and it has been in force for Portugal, through the EU, since August 1, 2014.
• Protocol on applicable law: in force for Brazil since November 1, 2017 and for Portugal, through the EU, since August 1, 2013 (HCCH).

1956 New York Convention

The United Nations Convention on the Recovery Abroad of Maintenance of June 20, 1956 was promulgated in Brazil by Decree 56,826/1965, and the Office of the Prosecutor General of the Republic (Procuradoria-Geral da República, PGR) acts as the intermediary institution (Art. 26 of Law 5,478/1968). Between States that are parties to both conventions, however, the 2007 Convention replaces the 1956 Convention insofar as their scopes coincide (Art. 49 of the 2007 Convention). The Ministry of Justice expressly lists Portugal among the countries whose applications no longer go to the PGR and are now processed under the Hague Convention.

• In Brazil: the Ministry of Justice and Public Security is the Central Authority under the 2007 Convention, acting through the Department of Asset Recovery and International Legal Cooperation (DRCI) of the National Secretariat of Justice. Applications are sent to the DRCI by electronic filing, with a translation where required (Ministry of Justice).
• The PGR continues to receive applications that remain covered only by the 1956 New York Convention, involving countries that are not parties to the 2007 Convention. This is not the case for Portugal.
• In Portugal: the Directorate-General for the Administration of Justice (DGAJ) receives applications from people residing in Portugal to establish, modify or collect support from a debtor living abroad. According to the DGAJ, the application is free of charge.

Each central authority transmits the application to the central authority of the other country, which forwards it to the competent bodies for processing. The creditor does not need to start proceedings abroad on their own.

The 2007 Convention applies (Art. 2 of Decree 9,176/2017):

• to support arising from a parent-child relationship owed to a person under 21 years of age;
• to the recognition and enforcement of spousal support between spouses or former spouses, when claimed together with child support;
• to other spousal support between spouses and former spouses, but without the chapters on administrative cooperation and applications through the central authorities.

Brazil declared that it extends the Convention to other maintenance obligations arising from family relationship, marriage or affinity, in particular in favor of vulnerable persons (Brazil's declarations at the HCCH). This extension only creates obligations between two States to the extent that the declarations of both coincide (Art. 2(3)).

Adult children

• In Portugal: support established while the child was a minor generally continues until the child turns 25, if the child's education or training has not been completed (Art. 1905(2) of the Portuguese Civil Code).
• In Brazil: support is set in proportion to the needs of the person claiming it and the resources of the person paying (Art. 1,694, § 1, of the Civil Code), and the duty of support between parents and children is reciprocal (Art. 1,696).

If there is no support decision yet, the creditor may apply, through the central authority of their country, for the establishment of a decision in the requested State, including the determination of parentage where necessary (Art. 10(1)(c) of Decree 9,176/2017). The Ministry of Justice lists the forms for establishment of a decision and for the financial circumstances statement (MJ).

Direct action in one of the countries

• In Brazil: the Brazilian courts have jurisdiction over support actions when the creditor is domiciled or resident in Brazil, or when the defendant has ties to the country, such as assets, income or economic benefits (Art. 22, I, of the CPC).
• In Portugal: child support may be requested by the legal representative, by the Public Prosecutor's Office or by whoever has custody of the child, with certificates of kinship and a list of witnesses (Art. 45 of the RGPTC). Support covers maintenance, housing, clothing and, for minors, schooling and education, in proportion to the means of the payer and the needs of the recipient (Arts. 2003 and 2004 of the Portuguese Civil Code).

Applicable law

Under the 2007 Protocol, in force in both countries, the maintenance obligation is generally governed by the law of the creditor's habitual residence, and changes with it (Art. 3). For support from parents to children, there are subsidiary rules in favor of the creditor, such as application of the law of the forum (Art. 4).

If a decision already exists in one of the countries, the creditor may apply for its recognition and enforcement in the other (Art. 10(1)(a) of Decree 9,176/2017). In this case, the Ministry of Justice lists the forms for recognition and enforcement, for proper notice and for enforceability of the judgment (MJ).

• Bases for recognition: the decision is recognized, among other cases, if the respondent or the creditor was habitually resident in the State of origin when the proceedings were instituted, or if the respondent submitted to the jurisdiction of that State (Art. 20).
• No review of the merits: the authority of the requested State does not review the merits of the decision (Art. 28).
• Enforcement: follows the law of the requested State and must be prompt (Art. 32).

Brazil made reservations: it does not recognize decisions based on a written agreement on jurisdiction, or maintenance arrangements, when they involve support for children, incapacitated adults or elderly persons (reservations to Arts. 20(1)(e) and 30(8)).

Means of collection in each country

• In Brazil: the debtor is summoned to pay within 3 days; if the debtor neither pays nor justifies the failure to pay, the decision is protested and civil imprisonment of 1 to 3 months may be ordered, in respect of up to three installments prior to enforcement and those falling due during the proceedings (Art. 528 of the CPC). Payroll deduction is possible (Art. 529).
• In Portugal: if the debtor does not pay within 10 days after the due date, the amounts may be deducted from the debtor's salary, wages, pensions or other income (Art. 48 of the RGPTC).

Changes in the circumstances of the payer or the recipient allow a request for modification: termination, reduction or increase in Brazil (Art. 1,699 of the Civil Code); reduction or increase in Portugal (Art. 2012 of the Portuguese Civil Code).

The Convention provides for applications for modification by both the creditor and the debtor (Art. 10(1) and (2) of Decree 9,176/2017), with an important limit: if the decision was made in the country of the creditor's habitual residence, the debtor cannot seek modification in another country while the creditor remains resident there, subject to exceptions, such as the creditor's acceptance of jurisdiction (Art. 18).

The Ministry of Justice states that Brazilian decisions must be modified in Brazil. In Portugal, a request to modify child support follows Art. 45 of the RGPTC.

• Free legal assistance: the requested State provides free legal assistance in applications for child support for persons under 21 arising from a parent-child relationship, submitted by the creditor through the central authorities (Art. 15 of Decree 9,176/2017).
• Portugal: according to the DGAJ, applications to establish, modify and collect support submitted through it are free of charge.
• Languages: the application is drafted in the original language and accompanied by a translation into the official language of the requested State, unless the competent authority of that State waives it (Art. 44 of the Convention; MJ).
• Legalization: documents transmitted under the Convention are exempt from legalization or any similar formality (Art. 41).

Support is usually determined together with the divorce and child custody. To give effect in Brazil to a Portuguese decision outside the Convention, see the page on recognition of foreign judgments in Brazil.

With offices in São Paulo and Albufeira, Sene & Araújo assists with support claims between Brazil and Portugal, with attention to the child's needs and to each family's circumstances.

1. Initial assessment: where the creditor and debtor live, whether a decision already exists, the amount at stake and whether there are assets or income in each country.
2. Choice of route: application through the central authority (DRCI or DGAJ) or direct action in Brazil or Portugal.
3. Documentation: certificates, proof that the decision is final and unappealable, calculation of arrears, Convention forms and translations.
4. Follow-up of the application with the central authorities and the courts, including requests for modification.
5. Coordination with divorce and custody proceedings, when they run in parallel.