GÖRNE BISSOLI LAW FIRM | BRAZILIAN DESK

Family Law: Germany - Brazil

We advise and represent you in international family law matters involving Germany and Brazil. Our practice focuses in particular on divorces, alimony claims, custody and visitation rights, and the property law implications of marriage and separation.

In doing so, we combine legal advice based on German law with the expertise of our Brazilian attorney and coordinate the necessary legal steps in both countries.

SERVICES AT A GLANCE

Our Areas of Expertise

Prenuptial Agreements

  • ✓ Drafting of International Prenuptial Agreements
  • ✓ Matrimonial Property Agreements and Choice of Law
  • ✓ Divorce Settlement Agreements
  • ✓ Alimony and Property Agreements
  • ✓ Review of Existing Prenuptial Agreements
  • ✓ Cross-Border Effectiveness of Agreements

International Divorce

  • ✓ Cross-Border Custody Proceedings
  • ✓ Regulations Governing International Visitation Rights
  • ✓ Right to Determine Place of Residence
  • ✓ Relocation of Children Abroad
  • ✓ International Child Abduction Proceedings
  • ✓ Representation in and out of court

Child Support Law

  • ✓ Child Support for Children Living Abroad
  • ✓ Separation and Post-Divorce Alimony
  • ✓ Calculation of Cross-Border Child Support Claims
  • ✓ Enforcement of Child Support Claims
  • ✓ Modification of Existing Child Support Orders
  • ✓ Defense Against Unjustified Child Support Claims

Recognition Process

  • ✓ Recognition of Brazilian Divorces in Germany
  • ✓ Recognition of German Divorces in Brazil
  • ✓ Recognition of Foreign Maintenance Orders
  • ✓ Recognition of Custody and Visitation Decisions
  • ✓ Cross-Border Enforcement of Family Law Judgments
  • ✓ Coordination of recognition and registration procedures

Custody and Visitation Rights

  • ✓ Cross-Border Custody Proceedings
  • ✓ Regulations Governing International Visitation Rights
  • ✓ Right to Determine Place of Residence
  • ✓ Relocation of Children Abroad
  • ✓ International Child Abduction Proceedings
  • ✓ Representation in and out of court

Matrimonial Property Law

  • ✓ Determination of the Applicable Matrimonial Property Regime
  • ✓ German and Brazilian Matrimonial Property Regimes
  • ✓ Equalization of Gains and Division of Assets
  • ✓ Real Estate and Foreign Assets in Divorce
  • ✓ Rights to Information and Evaluation
  • ✓ Judicial and Extrajudicial Division of Assets

INTERNATIONAL FAMILY LAW: GERMANY - BRAZIL

Special Features of German-Brazilian Family Law

Family law matters involving Germany and Brazil regularly require an examination of various national and international legal provisions. In addition to the international jurisdiction of the courts, questions arise in particular regarding the applicable law, the property consequences of a divorce, and the recognition and enforcement of foreign judgments.

INTERNATIONAL PROCEDURAL LAW

International Jurisdictions

In family law matters involving Germany and Brazil, the first step is to determine which courts have international jurisdiction over the respective proceedings. The answer to this question depends, in particular, on the habitual residence, domicile, and, in some cases, the nationality of the parties involved.

Different Rules Governing Jurisdiction

In many family law matters, the international jurisdiction of German courts is governed by European regulations and international conventions. For divorce proceedings, the Brussels IIa Regulation (EU) 2019/1111 is particularly relevant.

In Brazil, the rules governing international jurisdiction are derived primarily from Article 21 et seq. of the Código de Processo Civil (CPC), as well as from specific statutory provisions and provisions of international law.

Multiple courts with jurisdiction

In cross-border cases, courts in both countries may have concurrent international jurisdiction. In addition, jurisdiction over individual family law matters may be divided. For example, a German court may have jurisdiction over a divorce, while the division of Brazilian real estate is reserved exclusively for Brazilian courts.

It is therefore particularly important to assess international jurisdiction at an early stage in order to address conflicts of jurisdiction, parallel proceedings, and avoidable delays.

PRIVATE INTERNATIONAL LAW

Applicable Family Law

A court’s international jurisdiction does not determine which national law applies to a family law matter. Even a German court may be required to apply Brazilian law. Conversely, foreign law may be applicable in a Brazilian court.

Different Rules of Connection

From a German perspective, European regulations, international conventions, and national conflict-of-laws rules in particular determine the applicable family law. Relevant connecting factors may include habitual residence, nationality, or a valid choice of law by the parties involved.

Brazilian private international law contains its own provisions, particularly in the Lei de Introdução às Normas do Direito Brasileiro (LINDB). Since the connecting factors do not fully align, differences may arise in the legal assessment of the same set of facts.

Application of Multiple Legal Systems

Different national legal systems may apply within a single family law matter. For example, divorce, the property consequences of marriage, and maintenance claims may each be governed by a different legal system.

Determining the applicable law therefore requires a separate analysis under conflict-of-laws principles. In doing so, the requirements for the choice of law as well as any differences between the legal consequences under German and Brazilian law must also be taken into account.

COORDINATED LITIGATION

Parallel Proceedings and Different Legal Consequences

Family law matters involving Germany and Brazil may require several legally distinct proceedings. Not only do the substantive legal provisions differ, but so do the procedural requirements and the effects of court decisions.

Parallel Proceedings in Both Countries

Under certain conditions, German and Brazilian courts may be hearing the same or related matters at the same time. According to Article 24 of Brazil’s Código de Processo Civil (CPC), proceedings already pending abroad generally do not preclude Brazilian proceedings, unless otherwise provided by international regulations.

This can lead to conflicts of jurisdiction, overlaps, and discrepancies in the status of proceedings.

Different Legal Consequences

A family court decision in one state does not necessarily resolve all related legal issues. For example, the dissolution of a marriage, the property consequences, and maintenance claims may be subject to different proceedings.

In addition, the legal effects of individual decisions may differ between Germany and Brazil.

Coordination of Procedures

In cross-border matters, therefore, the respective jurisdictions, procedural statuses, and legal implications must be coordinated. Of particular importance in this regard is avoiding conflicting decisions and taking into account proceedings that are already pending or have been concluded.

RECOGNITION AND ENFORCEMENT

Recognition of Foreign Judgments

Family court decisions from Germany and Brazil do not necessarily have immediate legal effect in the other country. Their recognition and enforcement are governed by the relevant national laws and international conventions.

Recognition in Germany

The recognition of Brazilian judgments is governed by German international procedural law. In the case of divorce judgments, particular attention must be paid to § 107 of the German Family Proceedings Act (FamFG), which provides that, as a general rule, a formal recognition proceeding is required. Separate provisions apply to maintenance and paternity judgments.

Recognition in Brazil

In Brazil, the Superior Tribunal de Justiça (STJ) generally has jurisdiction over the recognition of foreign judicial decisions. An exception applies to simple, consensual foreign divorce decrees, which, pursuant to Article 961, § 5 of the CPC, may take effect without formal recognition by the STJ.

Cross-Border Enforcement

A distinction must be made between the recognition of a decision and its enforcement. Additional procedural steps may be required, particularly in cases involving maintenance claims, financial obligations, and matters of filiation.

It is therefore essential to examine the requirements for recognition and enforcement at an early stage in order to ensure the legal effects of family court decisions in both countries.

LEGAL ADVICE IN GERMANY AND BRAZIL

Your Contacts for Family Law

Cross-border family law matters are always handled in collaboration between German and Brazilian attorneys.

Marek Görne Bissoli, Attorney at Law

Attorney · Certified Specialist in Inheritance Law

Advice and representation in family law matters under German law, as well as legal coordination of cross-border proceedings.

Dr. Carolina D’Amorim Barreto

Attorney · OAB/BA 47,601

Advice and representation in Brazilian family law, as well as assistance with family court and out-of-court proceedings in Brazil.