Passed on Tuesday by the Chamber, the PEC still needs to be reviewed in two turns at the Senate

On Tuesday (2), the House Floor approved, in second turn, the bill on the constitutional amendment (PEC) which eliminates the term required by the Constitution for divorce. It is currently necessary to prove the judicial separation for more than one year, or a real separation for more than two years in order to file for divorce. That matter still needs to be voted by the Senate.

The text, approved by 315 votes against 88, and 5 abstentions, belongs to the substitution bill authored by Deputy Joseph Bandeira (PT-BA) to PEC 413/05, by Deputy Antonio Carlos Biscaia (PT-RJ), and to PEC 33/07, by Deputy Sérgio Barradas Carneiro (PT-BA).

The authors presented that bill due to the suggestion of the Brazilian Institute of Family Law (IBDF), which gathers judges, lawyers, prosecutors, psychologists, psychoanalysts, sociologists and other professionals which actuate in the scope of family relations and conflict resolution.

Fraud risks
According to Biscaia, the original rules of the Constitution only hampered separation and encouraged fraud, due to the need to present witnesses for the lawsuit. “That amendment meets the feeling of society”, he affirmed.

Deputy Barradas Carneiro, though, said he believes in marriage, but stressed that the Law cannot oblige anybody to stay married. “I am a Catholic, and believe that that PEC favors marriage, if we admit that it is not only a paper and a wedding ring, but a communion of affection and a common life purpose”, he affirmed. According to him, the current system encumbers too much the approximately 500,000 people who separate annually, since they must file two lawsuits to divorce.

Ordinary Law
In another voting, the House Floor suppressed from text the reference to the ordinary Law on the dissolution of civil marriage by divorce. That suppression occurred by means of an amendment signed by several parties’ leaders, which obtained 311 favorable and 59 contrary votes by the deputies.

The argument to eliminate that expression from the PEC is that it would be possible to extend, in the law, the term required in the Constitution to file for divorce, and which is being eliminated from the PEC.

Spanish Law
The rapporteur Joseph Bandeira reminded that the Brazilian Constitution used the term which prevails in Spanish Law since July 7, 1981. “One insisted in maintaining the indissolubility of the link as a constitutional matter”, he criticized, and stressed that several other countries handle that matter in the scope of Common Law.

He explained that, from the juridical standpoint, judicial separation only waives the partners from their cohabitation and reciprocal faithfulness duties (Art. 1,576 of the Civil Code). Divorce, though, “puts an end to marriage and to the civil effects of religious marriage” (article 24 of Law 6,515/77), thus allowing a new marriage.

Straight-away divorce
Despite the Constitution providing for straight-away divorce after two years of proven real separation, many people file lawsuits for judicial separations, which results in a new suit for divorce after one year of separation. Thus, it is necessary to pay lawyers’ honoraries twice; in the case of Public Defense, the accumulation of lawsuits is worsened.

According to its rapporteur, the former “desquite”, nowadays judicial separation, was maintained in the Brazilian Law, because of a political arrangement made so as to allow the adoption of the divorce in Brazil. “It was a formula which pleased those frontally contrary to divorce, and who were satisfied with the possibility of terminating only the matrimonial partnership”, he said.

Report - Eduardo Piovesan
Editing - João Pitella Junior
Translation - Positive Idiomas Ltda