STF decides that legal separation is not a requirement to file for divorce

The Federal Supreme Court (STF) decided this Wednesday (8), unanimously, that the instrument of “judicial separation” cannot be previously required to file for divorce and end the marriage.

Thus, divorce can be requested directly by the couple or by one of the spouses, without the need to fulfill this condition first.

By majority, the Court also understood that the instrument of judicial separation no longer exists autonomously in Brazilian law. This current had the votes of the rapporteur, minister Luiz Fux, and Cristiano Zanin, Edson Fachin, Dias Toffoli, Cármen Lúcia and Gilmar Mendes.

At this point, André Mendonça, Nunes Marques and Alexandre de Moraes were defeated, who understood that the separation remained valid and could be the object of the couple’s choice.

The case discussed by the ministers has general repercussion, that is, the understanding must be followed for similar cases in all instances of Justice.
The following judgment thesis was approved:

“After the promulgation of Constitutional Amendment 66 of 2010, judicial separation is no longer a requirement for divorce, nor does it exist as an autonomous figure in the legal system, without prejudice, the civil status of people who are already separated by judicial decision is preserved or public deed, as it is a perfect legal act”.

The Supreme Court began judging the case on September 26th. On that occasion, the rapporteur, Zanin, Mendonça and Nunes spoke.

Understand

The ministers discussed the legal validity of judicial separation. This is because, in 2010, a constitutional amendment established that civil marriage could be ended by divorce.

Previously, the law only authorized the dissolution of a marriage through divorce if there had been a legal separation for more than one year or if the couple had actually been separated for more than two years.

The amendment changed the Constitution. However, it did not change the Civil Code, which establishes legal separation as one of the ways to end the marital bond.

Wishes

Rapporteur Luiz Fux voted at the end of October. He understood that the dissolution of marriage is “unconditional”, that is, it does not require any requirements. For Fux, judicial separation, which served to regulate the regime of dissolution of marriage, “does not exist as an autonomous institute”. Minister Cristiano Zanin followed the rapporteur’s vote.

For Fux, the figure of judicial separation was not accepted by the constitutional amendment, that is, it is incompatible with the new legal order established by this change in the Constitution.

He stated that the amendment created an “unconditional” divorce regime.

“In the current constitutional order, the dissolubility of the marriage bond reflects an element of the right to found a family, as an expression of equality, freedom, self-determination, development of personality, the pursuit of happiness, removing any causal and temporal constraints, inaugurated by the EC [emenda constitucional] 66, which introduced an unconditional or non-causal regime for divorce”, he stated.

“Marriage dissolubility does not reflect lack of protection for the family. On the contrary, breaking the bond has been, since the beginning of the 1988 constitutional order, one of the pieces of the mosaic”.

André Mendonça opened the rapporteur’s partial disagreement, arguing that there is no requirement for divorce, but that legal separation remains valid. Nunes Marques followed this position.

“I understand that separation as a legal institution and in fact, it aims to bring a middle ground, to allow a process of gradual progress, whether towards a definitive consolidation, or sometimes a resumption of the relationship between the parties involved”, stated Mendonça.

“Marriage is a civil contract, there is a religious aspect that for a part of society is significant, but for everyone it is a civil contract. And, as a civil contract, the parties must have the greatest possible freedom to deal with this issue. Sometimes not always in relation to spouses, but even for the preservation of descendants. They are often the ones who suffer the most in these processes.”

The case discussed by the Court is that of a woman from Rio de Janeiro who questioned the decision of the state Court of Justice. The local court validated the divorce with her ex-husband, understanding that, 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”.