Family Law in Brazil

Introduction

Family law in Brazil (Direito de Família) is primarily governed by the Brazilian Civil Code of 2002 (Articles 1,511-1,783) and the Federal Constitution of 1988, which revolutionized the field by establishing principles of gender equality, non-discrimination among children, and pluralism of family forms. Brazilian family law has undergone profound transformation over the past three decades, moving from a patriarchal, hierarchical model to an egalitarian, pluralistic framework that recognizes multiple family structures.

Constitutional Foundations

The 1988 Constitution introduced fundamental changes to family law: (i) equality of spouses (igualdade entre cônjuges, Article 226, §5); (ii) equality of children regardless of birth (Article 227, §6); (iii) recognition of stable unions (união estável) as family entities (Article 226, §3); and (iv) the principle of the best interests of the child (melhor interesse da criança). These provisions required substantial reform of the Civil Code and subsequent legislation.

Marriage

Capacity and Requirements

Marriage (casamento) requires the capacity (capacidade) of both parties — minimum age of 16 with parental authorization (or judicial authorization if refused) and 18 without authorization. The marriage ceremony (celebração) is conducted by a justice of the peace (juiz de paz) and requires two witnesses, followed by registration.

Property Regimes

Parties may choose among property regimes: (i) partial community (comunhão parcial de bens), the default regime, where pre-marital assets remain separate but after-acquired assets are communal; (ii) total community (comunhão universal de bens); (iii) separation of property (separação total de bens), mandatory for parties over 70 or those marrying without observing statutory formalities; and (iv) final participation (participação final nos aquestos).

Divorce

Constitutional Amendment 66/2010 eliminated the requirement of prior separation for divorce, allowing direct divorce (divórcio direto). The Civil Code, as amended, permits divorce by mutual consent (consensual) or contested (litigioso). Divorce may be extrajudicial (by public deed at a notary) if the parties are in agreement, there are no minor children, and the parties are represented by counsel.

Stable Unions

The Constitution recognizes stable unions (união estável) as a family entity (Article 226, §3). The Civil Code (Articles 1,723-1,727) defines it as a lasting, public, and continuous relationship between a man and a woman (extended to same-sex couples by the STF in ADI 4.277) with the objective of establishing a family.

Stable unions are governed by the partial community property regime unless the parties execute a cohabitation agreement (contrato de convivência). Conversion of a stable union into marriage (casamento por conversão) is permitted.

Same-Sex Marriage and Unions

The STF’s landmark decision in ADI 4.277 (2011) and ADPF 132 (2011) recognized same-sex stable unions as family entities, applying the constitutional principle of non-discrimination. In 2013, the National Council of Justice (CNJ) issued Resolution 175, requiring all notaries to perform same-sex marriages. Brazil thus became one of the first countries in Latin America to recognize same-sex marriage nationwide.

Parent-Child Relationships

Filation

The Constitution abolished discrimination among children (Article 227, §6). All children — whether born in or out of wedlock or adopted — have equal rights. Paternity recognition may be voluntary or judicially determined. The STF, in RE 878.694 (2016), declared unconstitutional the distinction between biological and socio-affective paternity for succession purposes.

Adoption

Adoption (adoção) is governed by the Child and Adolescent Statute (Estatuto da Criança e do Adolescente, ECA, Law 8.069/1990). Adoption requires judicial process with the child’s consent (if over 12), suitability assessment of adopters, and a period of supervised coexistence. The National Adoption Registry (Cadastro Nacional de Adoção) facilitates matching.

Parental Authority

Parental authority (poder familiar) encompasses the rights and duties of parents regarding their children’s person and property. It includes custody, education, representation, and administration of assets. Parental authority may be suspended or terminated by judicial decision in cases of abuse.

Child Custody and Support

Custody

The CCP/2015 and Law 13.058/2014 introduced shared custody (guarda compartilhada) as the default regime, requiring both parents to share decision-making responsibilities even when physical custody is primarily with one parent. The court may order alternate custody (guarda alternada) when in the child’s best interest.

Child Support

Child support (alimentos) is the obligation to provide for a child’s maintenance, education, and health. The obligation is based on the binomial need-capacity (binômio necessidade-possibilidade). Support may be fixed as a percentage of income or as a fixed amount, and may be modified upon showing of changed circumstances.

Conclusion

Brazilian family law has undergone extraordinary transformation, from a patriarchal model centered on marriage to a pluralistic, egalitarian framework. The 1988 Constitution’s principles of equality and non-discrimination, applied by the STF in landmark cases, have eliminated legal distinctions based on birth, gender, and sexual orientation. The continuous evolution of family structures and social values ensures that family law remains a dynamic area of Brazilian jurisprudence.