Legal separation is not a requirement for divorce, the Supreme Court rules

After the promulgation of Constitutional Amendment 66/2010, judicial separation is no longer a requirement for divorce, nor does it exist as an autonomous figure in the legal system, and the civil status of people who are already separated by court decision or public deed must be preserved, by are perfect legal acts.

This understanding is from the Plenary of the Federal Supreme Court, in a trial that ended this Wednesday (8/11). The vote of Minister Luiz Fux, rapporteur of the case, prevailed.

The topic was addressed in RE 1,167,478, analyzed based on questions to a decision by the Court of Justice of Rio de Janeiro (TJ-RJ), according to which judicial separation is not necessary because the marriage can be dissolved if there is a will of one of the spouses. The case has widespread repercussions.

Before Amendment 66, divorce required legal separation of more than one year, or proof of de facto separation of more than two years. The amendment removed this requirement, but there was no change in the separation rules that exist in the Civil Code.

For Fux, the modification approved by Congress in 2010 does not need regulation to be effective. The change in the Constitution, he stated, simplified separations, eliminating conditions.

According to the rapporteur, families can form and dissolve freely. According to him, the 1988 Constitution overcame the view that the end of marriage is a lack of protection for the family. “Marrying is a right, not a duty, which includes staying married or not.”

The minister also understood that, after the amendment, the separation was removed from the legal system. Therefore, it is not a requirement for divorce.

“Direct divorce is today the modality contemplated in the Federal Constitution. It is not necessary to advance judicial separation, which, in my view, has been expunged from the Brazilian normative order.”

Fux was accompanied by ministers Cristiano Zanin, Edson Fachin, Luís Roberto Barroso, Dias Toffoli, Cármen Lúcia and Gilmar Mendes regarding the two points.

Divergence
Minister André Mendonça opened a disagreement. For him, separation is not a requirement for divorce, but it can still exist as an autonomous figure in the legal system. Mendonça was accompanied by ministers Kassio Nunes Marques and Alexandre de Moraes.

For Mendonça, maintaining the possibility of legal separation, even without being a requirement for divorce, allows for a process of maturation of the decision to end the relationship.

“Separation, as a legal institute and a de facto institute, aims to bring a middle ground, to allow a process of gradual progress, whether towards a definitive consolidation, or sometimes towards a resumption of the relationship between the parties involved.”

Specific case
The case judged by the STF reached the court after the TJ-RJ concluded that, after EC 66/2010, legal separation is unnecessary for divorce.

According to the Rio de Janeiro court, with the change in the Constitution, if one of the spouses expresses the desire to break the marital bond, the other can do nothing to prevent the divorce.

In the Supreme Court, one of the spouses claimed that article 226, paragraph 6, of the Constitution only dealt with divorce, but its exercise was regulated by the Civil Code, which provides for prior legal separation.

He also maintained that the argument that article 226 has immediate applicability is mistaken, with the unnecessary editing or observance of any other infra-constitutional norm.

In counterarguments, the other party defended the unenforceability of judicial separation after the constitutional change. Therefore, following his understanding, there would be no nullity in the sentence that declared the divorce.