Divorce with assets abroad: how does the division of property work?

Dra. Lais Sampaio

Oct 8

6 min read

When a couple going through a divorce has assets in more than one country, the division of those assets may involve the laws and courts of different countries. As a general rule, the Brazilian courts will decide matters concerning assets located in Brazil, while the courts of the foreign country will decide matters concerning assets located within their territory. However, international divorce is a complex matter that requires much more attention than simply following this general rule. This is because assets located abroad do not necessarily remain outside a divorce proceeding in Brazil: depending on the circumstances of the case, the Superior Court of Justice (STJ) has accepted that the value of such assets may be taken into account to balance the division of marital property.

To provide further clarification for those in this situation, this article will address:

What is international divorce?

International divorce is a divorce that involves two or more countries. This occurs when the spouses have different nationalities, live in different countries, were married abroad, or have assets in more than one country. This article addresses the latter situation.

When assets are located in more than one country, divorce raises issues that do not arise in domestic cases: which country has jurisdiction over each asset, which law determines the couple's matrimonial property regime, and how the decision will be enforced in the country where the asset is located. For this reason, it is advisable to consult a lawyer specializing in International Family Law before taking the first step.

For information on the recognition in Brazil of a divorce carried out abroad, see Is a Foreign Divorce valid in Brazil? STJ Recognition or Civil Registry Registration?

Divorce with assets abroad: can the Brazilian courts decide the case?

In principle, yes. The existence of assets abroad does not prevent a divorce from taking place in Brazil. It is important to bear in mind that a divorce may address a variety of issues: dissolution of the marriage, custody and visitation, spousal and child support, and, finally, the division of assets.

Therefore, it is entirely possible to address all these matters in Brazil and leave to the foreign courts only the issue concerning the division of assets located within their territory. In fact, this is common in International Family Law. In many cases, we, as international lawyers, choose to divide the divorce into separate matters as a legal strategy to protect our clients' interests.

That said, the jurisdiction of the Brazilian courts to hear a divorce is established when the case has a connection with Brazil. Under the Brazilian Code of Civil Procedure (CPC), the Brazilian courts may hear and decide a case when:

the defendant, regardless of nationality, is domiciled in Brazil (Article 21, I);
the obligation is to be performed in Brazil (Article 21, II);
the basis of the claim is an event that occurred or an act that was performed in Brazil (Article 21, III);
the parties, expressly or tacitly, submit to Brazilian jurisdiction (Article 22, III).

There is also one situation in which only the Brazilian courts may decide: the division of assets located in Brazil, even when the owner is a foreign national or is domiciled outside the country (Article 23, III).

What if the marriage took place abroad? Is it still possible to get divorced in Brazil?

Yes. The place where the marriage was celebrated does not determine which country may hear the divorce. The Brazilian courts will have jurisdiction when the case has current connections with Brazil. There is, however, a prior requirement: a marriage celebrated abroad must be duly legalized in Brazil.

Are assets abroad included in the division of property in Brazil?

Their value may be included. Due to the principle of sovereignty, the Brazilian courts do not, by themselves, have the power to transfer ownership of property or move funds in an account located in another country. However, the value of assets located abroad may be taken into account for the purpose of equalizing the division of marital property in an international divorce, offsetting any imbalance involving assets located in Brazil.

It is also possible for the Brazilian courts to determine how an asset located abroad should be divided. However, in order for the decision to be effectively enforced, the judgment must be recognized in the country where the asset is located, in accordance with that country's laws.

Divorce abroad with assets in Brazil

As stated above, the division of assets located in Brazil falls within the jurisdiction of the Brazilian courts, to the exclusion of any other jurisdiction, even when the owner of the asset is a foreign national or is domiciled outside Brazil. This is the rule established by Article 23, III, of the Brazilian Code of Civil Procedure. It is important to note that this applies both to divorce and to the dissolution of a stable union.

On the other hand, there is nothing preventing a foreign country from considering itself, under its own laws, competent to decide on the division of assets located in Brazil. Therefore, when a divorce has already taken place abroad and the foreign authority has decided on the division of assets located in Brazil, the question becomes whether that decision will produce legal effects in Brazil.

For more information on this issue, see also the article Is a Foreign Divorce valid in Brazil? STJ Recognition or Civil Registry Registration?, which explains the recognition procedure.

In these cases, the STJ makes an important distinction:

if the division of assets located in Brazil is imposed by the foreign judge in a contested proceeding, the STJ will not recognize this part of the judgment, in accordance with Article 964 of the CPC;
if the division resulted from an agreement between the spouses, the STJ has accepted the recognition of this part of the judgment.

In the first situation, the court may recognize the divorce while excluding the property located in Brazil, whose division will then be carried out in Brazil.

A tip from Dra. Laís Sampaio, attorney specializing in International Law

In Brazil, the dissolution of the marriage may be granted before any discussion regarding the division of assets (Article 1,581 of the Civil Code and STJ Precedent No. 197). In international cases, separating these two stages may be useful: the marital status is resolved promptly, while the division of assets and other matters can be negotiated with the time required to identify and assess assets located in more than one country.

Frequently asked questions

Is property abroad included in the division of assets in a divorce carried out in Brazil?

The value of the property may be included. The STJ has accepted that Brazilian courts may take assets located abroad into account to balance the division. The transfer of ownership, however, depends on the laws and authorities of the country where the property is located.

Can a foreign divorce judgment divide property located in Brazil?

Only when the division results from an agreement between the spouses. The division of assets located in Brazil falls under the exclusive jurisdiction of the Brazilian courts (Article 23, III, of the CPC), and the STJ does not recognize a contested division of assets located in Brazil carried out by a foreign judge.

Can I get divorced now and divide the assets later?

Yes. A divorce may be granted without the prior division of assets (Article 1,581 of the Civil Code and STJ Precedent No. 197).

Do the same rules apply to a stable union?

Yes. Article 23, III, of the CPC expressly refers to the dissolution of a stable union, and the STJ's understanding regarding assets located abroad has also been applied to the dissolution of a stable union.

Do I need to be in Brazil to get divorced?

No. In judicial proceedings, the party is represented by a lawyer under a power of attorney. In an uncontested divorce carried out by public deed, it is possible to be represented by an attorney-in-fact appointed by means of a public instrument granting specific powers (Article 36 of CNJ Resolution No. 35/2007).

This content is for informational purposes only and does not replace individualized legal advice.

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