Vehicle: Newspaper: Jornal do Commercio - Rio de Janeiro - Section: Law & Justice - June 18, 2009

by: Ana Luisa Porto Borges

On June 2nd the House of Representatives passed the Proposal for Constitutional Amendment (PEC) that changes divorce rules. Pursuant to the text, the couples may file an immediate petition for divorce upon separation. The PEC still needs to be passed in the Senate.

Currently, couples are required to wait a period of one year for the judicial separation - the so-called indirect divorce - or of two years of separation or effective separation to file for direct divorce. The PEC changes paragraph 6 in Section 226 of the Federal Constitution, which provides: “the civil marriage may be dissolved by the divorce, after previous judicial separation for more than one year in those cases provided by law, effective separation, proven for more than two years.”

The marriage is only fully extinguished with the divorce, only divorced individuals may get married; judicially separated individuals may only get married after the indirect divorce.

In practice, if the current proposal passes in the Senate, judicial separation will probably no longer exist. That’s because people get separated to solidify a position in fact. After one year, they apply for a divorce before the same jurisdiction, so that they may, if that’s the case, marry again.

The new wording for the law will allow direct divorce as an advantage. The couple will no longer need to wait two years for the de facto separation and the parties will probably choose for direct divorce. The filing of separation cases should become extinct.

The difference is that, in the separation, in case the spouses want to reconcile, notice to court will suffice. If they file for divorce, a new marriage then becomes necessary.

Another advantage of Divorce PEC is that, if passed, the Judiciary Power will be less busy handling such matters. Today, couples get separated upon approval of the separation and the case records are remitted to court file after one year. They have to wait this mandatory term of one year, so that the parties may return to the Judiciary; it is necessary to request the reopening of the case with the court records and apply for the conversion of the separation into divorce. The only requirement observed is the term, in other words, there are no reasons for the non-existence of direct divorce, without a term.

In this sense, the Judiciary, which is called in to validate the same case twice, functions as a “mere” time-keeper, because the only necessary requirement to ratify the divorce is checking whether or not a year has passed. But the parties may gain some time if they undergo such procedure only once.

So this phase becomes unnecessary under the couple’s point of view and also under the legal aspect. Moreover, the legal costs involved will also be decreased, because such proceedings will involve one direct action instead of two different lawsuits. And for the couple, this will also represent less emotional strain for both.