I live abroad and I am getting divorced: how are our assets in Brazil divided?

Who decides how the assets left in Brazil are divided?

Only the Brazilian authorities. The Code of Civil Procedure gives Brazilian courts exclusive jurisdiction, in a divorce, to divide assets located in Brazil, even when the couple lives abroad or is foreign (art. 23, III). In practice, a divorce granted in another country can end the marriage, but it cannot divide the flat in Goiânia or the house in Minas Gerais: that division has to be made in Brazil, by deed or by court case. Rocha Advogados, based in Goiânia, Brazil, assists Brazilians abroad who need to make or regularise that division.

Which law says what belongs to each spouse?

The law of the property regime. For couples married in Brazil without a prenuptial agreement, the regime is partial community of property (Civil Code, art. 1,640): what was bought during the marriage is divided, and what each spouse already owned or received by inheritance or gift stays out (Civil Code, arts. 1,658 and 1,659, I). For couples married abroad, the regime follows the law of the country where the couple was domiciled when they married and, if each lived in a different country, the law of their first marital domicile (Law of Introduction to the Norms of Brazilian Law, art. 7, § 4). That is why the first document the lawyer asks for is the marriage certificate showing the regime.

What are the ways to divide the assets?

1. At a notary's office in Brazil, by public deed, when the divorce is by mutual consent, there are no minor or incapable children and a lawyer assists (Code of Civil Procedure, art. 733). The spouse living abroad signs through a public power of attorney with special powers, valid for 30 days (CNJ Resolution 35/2007, art. 36).
2. At the Brazilian consulate, under the same conditions, with the description and division of the assets in the consular deed itself (Law of Introduction to the Norms of Brazilian Law, art. 18, §§ 1 and 2).
3. In a Brazilian court, when the couple does not agree on the division or there are minor children. For the court case, the firm's power of attorney signed digitally is enough (Code of Civil Procedure, art. 105), with no consulate visit.
4. After the divorce, in a separate case or deed, because the divorce can be granted without a prior division of assets (Civil Code, art. 1,581).

Step by step for someone living abroad

1. Get an updated marriage certificate and, if there is one, the prenuptial agreement.
2. List the assets in Brazil: properties with their registry numbers, accounts, investments, vehicles and company shares.
3. Request an updated registry certificate for each property from the Real Estate Registry.
4. Decide with the lawyer whether the division will be equal or whether one spouse keeps the property and pays the other's share.
5. Sign the power of attorney in the right format: public deed for the notary, digital for the court case.
6. After the deed or the judgment, register the division on the property's registry record (Law 6,015/1973, art. 167), because without that registration the property stays in both names.

Which taxes apply to the division?

If each spouse receives exactly half, as a rule there is no transfer tax. If one spouse receives more than half without paying the difference, the excess is treated as a gift and the state charges its gift tax (ITCMD), at a rate set by each state. If the difference is paid in money, the municipality may charge the property transfer tax (ITBI). Rocha Advogados calculates that difference before signing, so the tax does not come as a surprise at the notary's office.

What if the divorce was already granted in the country where I live?

A simple consensual divorce, which only ends the marriage, is recorded directly at the Brazilian registry office, without going through the Superior Court of Justice (Code of Civil Procedure, art. 961, § 5). The properties in Brazil, however, remain undivided until the division is made here, by deed or by court case, because a foreign judgment cannot divide assets located in Brazil (Code of Civil Procedure, art. 23, III). Until then, selling or mortgaging the property requires both signatures.

Frequently asked questions

My former spouse lives in Brazil and refuses to divide the property. What can I do?

The division goes to a Brazilian court, in the district set by law, and you take part from where you live, with the firm's power of attorney signed digitally. While the division is pending, the spouse who uses the shared property alone may be charged for using the other's share, depending on the evidence in the case.

Is the property I inherited from my parents part of the division?

Under partial community of property, no. Assets received by inheritance or gift stay out of the division (Civil Code, art. 1,659, I), but anything bought with the money from selling them must be proven to replace that asset.

Can I divorce now and divide the assets later?

Yes. The divorce does not depend on the division (Civil Code, art. 1,581), and many Brazilians abroad divorce first and divide later, once the property documents are in order.

Do I have to go to the consulate?

Only for the public power of attorney or for the consular deed. For a court case, the firm's power of attorney signed digitally is enough (Code of Civil Procedure, art. 105).

Can the service be in English?

Yes. Rocha Advogados works in Portuguese and English, by video call and in writing, in the time zone of the client living abroad.

This content is for information only and does not replace advice on your specific case. No outcome is guaranteed, in line with Brazilian Bar Provision 205/2021.

Rocha Advogados, a law firm in Goiânia, Brazil, serving Brazilians living abroad. Av. D, 419, 4th floor, Setor Marista. Lawyers in charge: Rafael Bispo da Rocha, OAB/GO 33.675, and Ivenise Uchôa de Almeida Rocha, OAB/GO 59.087. Online service for Brazilians in any country and in-person service in Goiânia.