STF decides that legal separation is no longer a requirement for divorce

The STF (Supreme Federal Court) decided this Wednesday afternoon (8.Nov.2023) that legal separation is no longer a requirement for divorce. The result of the trial was 7 to 3 votes.

With the vote, the Supreme Court validated the removal of this requirement from the Federal Constitution. The withdrawal was made by the National Congress, in 2010, through a constitutional amendment (66/2010).

The amendment created the direct divorce and made it possible for civil marriages to be dissolved by requesting divorce, without the need for legal separation.

Previously, a couple could only divorce 2 years after the actual separation – when the couple no longer lives in the same house – or 1 year after the legal separation – when there is a legal process that ends the couple’s marital life, but without dissolving it. the marital bond completely.

In legal separation, the spouses are not free to remarry.

The judgment reached the Supreme Court after a spouse filed an appeal challenging the direct divorce.

The rapporteur, Minister Luiz Fux, defended the extinction of judicial separation, so that it would no longer be a requirement for divorce. “Marrying is a right, not a duty, which includes staying married or not”, declared.

Fux’s understanding was accompanied by:

• Carmen Lúcia;
• Cristiano Zanin;
• Edson Fachin;
• Toffoli Days;
• Gilmar Mendes; It is
• the President of the Court, Roberto Barroso.

Minister André Mendonça voted for the validity of the constitutional amendment, but differed from Fux, claiming that, even if separation was no longer a requirement for divorce, it could still exist separately. In other words, if a couple wanted, they could join the legal separation and divorce later.

Mendonça was accompanied by ministers Nunes Marques and Alexandre de Moraes.