Unanimously, the ministers of the Federal Supreme Court (STF) decided, this Wednesday (8), that Legal separation is not a prior and necessary requirement for couples to divorce.
The STF’s understanding was based on a change made to the Constitution in 2010, which now provides for divorce as a means of dissolving a marriage bond.
With this, the ministers established that “judicial separation is no longer a requirement for divorce, nor does it exist as an autonomous figure.” They determined that “the civil status of people who are legally separated is preserved”.
The position of the rapporteur, minister Luiz Fux, prevailed, in the sense that, if the couple wishes, the divorce can occur directly. In other words, without the need for previous steps, not even a minimum period of marriage before the end of the relationship.
The ministers also decided that judicial separation will not be maintained in Brazilian legislation as an autonomous mechanism.
At this point, the score was 7 votes to 3. The ministers who disagreed maintained that this modality should persist as a measure to be taken by couples before a definitive decision on the fate of the union.
The case has general repercussion, that is, a decision by the Supreme Court will guide the treatment of other similar legal disputes in lower courts.
When the general repercussion was recognized, Minister Luiz Fux, rapporteur of the case, pointed out that the change in the Constitution generated different interpretations and positions in Justice.
“The change in the constitutional wording led to varied interpretations of the doctrine and conflicting positions in the Judiciary regarding the maintenance of judicial separation in the legal system, as well as regarding the requirement to observe a deadline for divorce”, he highlighted.
‘Marrying is a right and not a duty’
The case began to be analyzed at the end of October. At the time, the rapporteur considered that a change made to the Constitution in 2010 ended the requirements for the end of the relationship between couples, which included an obligation for legal separation for a minimum period of time.
“The same right that people have to found a family, they have the right to dissolve the marriage bond”, stated the minister.
Fux pointed out that the change in the constitutional text — which allowed the end of marriage directly through divorce — simplified the procedures, preventing the creation of prior requirements.
“This new introduction of derived constituent power was precisely to prevent the legislator from creating conditions for divorce”, pointed out the rapporteur. “Getting married is a right and not a duty, which includes whether or not you stay married,” he added.
According to the rapporteur, judicial separation is also no longer a mechanism that exists autonomously in Brazilian legislation, as a kind of step prior to a definitive decision by the couples.
Ministers Cristiano Zanin, Dias Toffoli and Edson Fachin followed the rapporteur’s vote in full.
Minister André Mendonça partially followed Fux’s understanding. Like the rapporteur, Mendonça considered that divorce does not require a prior requirement, but understood that legal separation still exists.
“I understand that the separation, as a legal institute and a de facto institute, aims to bring a middle ground. Allow a process of gradual progress, either towards a definitive consolidation, or sometimes towards a resumption of the relationship between the parties involved”, he considered .
The minister also recalled that the change in understanding on the issue also has an impact on inheritance rights, child custody and property rights.
Mendonça maintained that maintaining judicial separation as an independent institution does not allow for discussion of who is “at fault”.
Minister Nunes Marques followed Mendonça’s line, considering that, although divorce does not require a prior requirement, legal separation is still possible under Brazilian legislation.
When the trial resumed this Wednesday, Moraes also aligned himself with Mendonça’s position on this point. Despite considering the possibility of direct divorce, he understood that legal separation still exists independently.
The other ministers, however, voted with the rapporteur, forming a score of 7 to 3 on the topic.
Number of marriages is close to pre-pandemic levels, but the volume of divorces is the highest in 10 years
In this Wednesday’s session, Minister Edson Fachin recalled that, in the same way that getting married is an act of freedom, the possibility of getting divorced is also a right guaranteed to couples.
“Getting married is an act of freedom. It is a choice. It is an act that constitutes a communion of life. Staying married must also be an act of freedom.”
In his vote, Minister Dias Toffoli recalled the numbers of feminicide in Brazil. He argued that even today man “thinks he owns a woman’s body”.
“Even that boyfriend who is rejected, he thinks there is a subjective right to love. He thinks it is a subjective right to own a woman’s body”, he pointed out.
Minister Cármen Lúcia cited the need to guarantee freedom in the matter.
“Getting married is an act of freedom, so is getting married and not getting married either. Freedom is the only justification for us to have a democratic right”, he pondered.
Since the change in the 2010 Constitution, mentioned by Fux in his vote, prior separation has not been required. The text of the Civil Code, however, was not adequate and still establishes express separation rules.
One of its articles provides, for example, that the couple will be able to convert the separation into divorce one year after it has become final, by court decision.
Another excerpt establishes that the divorce will be requested by the husband or wife if they prove “de facto separation for more than two years”.