Dividing Brazilian Property in a Foreign Divorce

Why does a foreign divorce decree stop at the Brazilian border?

Many cross-border divorces end with a decree that reads as if it settled everything, including the apartment in São Paulo or the beach house in Bahia. When one of the former spouses then tries to register that outcome in Brazil, the land registry refuses, and the couple discovers that the Brazilian part of the divorce has not really happened.

The reason is jurisdictional. Article 23 of the Brazilian Code of Civil Procedure lists matters over which Brazilian courts have jurisdiction to the exclusion of any other:

• item I: actions concerning real estate located in Brazil;
• item III: in a divorce, judicial separation or dissolution of a stable union, the partition of assets located in Brazil, even if the owner is a foreign national or is domiciled abroad.

Item III was introduced by the 2015 Code precisely for this situation. A foreign judgment on a matter reserved to Brazilian courts cannot be homologated by the Superior Tribunal de Justiça (CPC Article 964), and without homologation it has no effect here. The registry officer is not being difficult; the registry is following the law.

“The decree from abroad is not wasted. It ends the marriage, and Brazil will recognise that. What it cannot do is move a Brazilian title. That has to be done here, and the good news is that if the two of you agree, it can be done quickly and without either of you getting on a plane.” — Zachariah Zagol, Founding Partner, OAB/SP 351.356

This page follows the sequence a former spouse actually faces: recognising the divorce itself, working out which property regime governs the Brazilian assets, carrying out the partition in Brazil, the taxes that partition triggers, and then selling the property and remitting the proceeds. For the jurisdictional choice at the start of a binational divorce, see binational divorce in Brazil; for recognition of the decree, see getting your foreign divorce recognised in Brazil.

Step 1: recognise the divorce

Nothing can be done with the Brazilian property while the Brazilian record still shows the parties as married, because a married owner needs the spouse’s consent to dispose of real estate under most regimes (Civil Code Article 1.647), and notaries will not draw up a partition of marital property between people who are not yet divorced in Brazilian terms.

There are two ways to recognise the divorce, described in detail on the homologation page:

• Direct registration at the civil registry, if the foreign divorce was consensual and decided nothing beyond the dissolution (CPC Article 961, §5; CNJ Código Nacional de Normas, Provimento 149/2023, art. 464 — Provimento 53/2016, still widely cited, was revoked).
• STJ homologation (CPC Articles 960 to 965) if the divorce was contested or if the decree also decided custody, support or property.

A decree that divides Brazilian property is, by definition, not a “simple or pure” consensual divorce. The CNJ’s Código Nacional de Normas says so in terms: a consensual foreign divorce that, besides dissolving the marriage, disposes of custody, maintenance and/or the division of property is a divórcio consensual qualificado, and its averbação “dependerá de prévia homologação pelo Superior Tribunal de Justiça” (Provimento CNJ 149/2023, art. 464, §3). So the registry route closes as soon as the decree touches the Brazilian assets, and the case goes to the STJ.

Two features of that route matter for planning. First, homologation can be partial: CPC art. 961, §2 provides that “a decisão estrangeira poderá ser homologada parcialmente”, so the STJ may recognise the dissolution while declining terms it will not give effect to. Second, whether the Brazilian property terms of a foreign decree are themselves recognised is not something to assume — the outcome depends on the decree’s own wording, on whether the division was genuinely agreed between the spouses or imposed by the foreign court, and on how the property registry then reads what it is given. The consequence is practical: an award of Brazilian real estate written into a foreign decree is not self-executing here. For that reason, in most consensual cases the cleaner sequence is to have the STJ recognise the divorce and then implement the agreed split by a Brazilian partition instrument — a escritura pública de partilha where the parties are capable and in agreement, which the property registry accepts as a matter of routine. Where a Brazilian public deed is executed by an attorney-in-fact, note that Resolução CNJ 35/2007 requires the POA to be a public instrument with special powers, a description of the essential clauses and a validity of thirty days (art. 36) — a short window that has to be co-ordinated with the signing date.

Step 2: identify the marital property regime

The partition follows the regime. Getting the regime wrong produces a partition that can later be challenged, so this is analysed before anything is drafted.

Which law governs the regime

Brazil’s rules of private international law are in the LINDB (Decreto-Lei 4.657/1942), and two articles pull in different directions.

Article 7, §4 fixes the property regime: “o regime de bens, legal ou convencional, obedece à lei do país em que tiverem os nubentes domicílio, e, se este for diverso, a do primeiro domicílio conjugal.” The test is the spouses’ domicile as at the marriage; where they were domiciled in different countries then, the law of the first marital domicile governs. Note what this does not say: it does not follow the couple’s later moves. A couple who married while domiciled in São Paulo and later moved to Miami do not acquire a Florida regime by moving.

Article 8 fixes the law of the asset: “para qualificar os bens e regular as relações a eles concernentes, aplicar-se-á a lei do país em que estiverem situados.” Brazilian law therefore governs how a Brazilian asset is characterised and the relations concerning it — which is why the registry, the deed and the transfer are Brazilian questions whatever regime governs the marriage.

A foreign regime can therefore determine what share each spouse takes in a Brazilian asset while Brazilian law determines how that share is created, held and registered, with Brazilian public policy as the outer limit. Where the two are hard to reconcile — a foreign regime unknown to Brazilian law, or a discretionary redistribution rather than a rule-based split — the question is argued rather than assumed, and it is one of the first things counsel on both sides should be asked to address.

Two common patterns:

• Married and first lived in Brazil, no prenuptial agreement: partial community of property (comunhão parcial de bens), the Brazilian legal default since 1977 (Civil Code Article 1.640).
• Married abroad and first lived abroad: the regime of that country’s law, which in a US common-law state means separate property with equitable distribution on divorce, in a community-property state a form of community, in England and Wales separate property with wide judicial discretion, and in most continental European systems a statutory community or participation regime.

A prenuptial agreement made abroad is generally respected in Brazil if it was valid where made and does not offend public policy; a Brazilian pacto antenupcial is a public deed registered against the marriage. See prenuptial agreements in Brazil and comparing Brazilian and foreign prenups.

The Brazilian regimes in brief

For couples under Brazilian law, the Civil Code offers:

Our community property in Brazilian marriage and comparing marriage property regimes pages go into each regime.

What counts as a Brazilian asset

Article 23, III is not limited to real estate. Brazilian bank and investment accounts, quotas or shares in Brazilian companies, vehicles, rural land and receivables from Brazilian sources are all “assets located in Brazil”. Real estate is the most consequential because of the registry, but a partition that omits the other assets leaves loose ends that resurface, for instance when a bank asks both former spouses to sign, or when one of them dies.

Some specific points that arise often:

• Quotas in a Brazilian limited company (Ltda.): Civil Code Article 1.027 provides that the former spouse of a partner cannot demand the quota itself but shares in the profits until liquidation, unless the articles or the parties provide otherwise. Partition usually deals with this by valuing the quota and compensating, or by the parties agreeing a transfer.
• Employment funds and pensions: balances built up in the employee severance fund (FGTS) during the marriage have been treated by Brazilian case law as divisible under community regimes, on the reasoning that they are deferred remuneration earned during the marriage rather than a personal benefit — but the money sits in a restricted account and cannot simply be withdrawn on divorce, so the partition instrument usually deals with it by reserving the share rather than by transferring cash. Private pension plans have been treated differently depending on whether the particular plan functions as savings or as insurance. Both are analysed on the plan’s own terms and against the authority current at the time, not by category.
• Rural land: divisions of rural property are subject to the minimum plot rules and to the restrictions on foreign ownership of rural land (Law 5.709/1971), which can affect how a foreign former spouse may hold what is awarded. See rural land ownership by foreigners.

Step 3: carry out the partition in Brazil

By notarial deed (consensual)

Where the former spouses are capable adults and agree on the division, the partition is done by public deed at a notary’s office (tabelionato de notas), with an attorney assisting both or each party, under CPC Article 733 (originally Law 11.441/2007). The requirements in cross-border cases:

• The divorce is already recorded in the Brazilian marriage record (Step 1).
• Both parties have a Brazilian taxpayer number (CPF), which a foreigner can obtain from abroad through a consulate or online; see how to get a CPF as a foreigner.
• Each party who will not attend signs a power of attorney granting specific powers for the partition, at a Brazilian consulate or before a local notary with apostille and sworn translation. See powers of attorney in Brazil.
• The property’s registry certificate (matrícula) is current and the parties’ title is regular; any prior irregularity must be cured first.
• Municipal and state tax clearances and, for the taxes discussed below, proof of payment or exemption.

Once signed, the deed is presented to the real estate registry (Registro de Imóveis) of the property’s district, which records the division and issues an updated certificate showing the new ownership. The whole sequence, from recognition of the divorce to registration, can be done without either party travelling to Brazil.

By court proceeding (contested, or where required)

Where the former spouses do not agree, or where a party is incapable, the partition is decided by a Brazilian family court in an ação de partilha (or sobrepartilha, when assets were left out of an earlier division). Jurisdiction lies with the court of the place of the property or of the defendant’s domicile, depending on the case. The court identifies the regime, lists and values the assets, hears evidence on contributions and exclusions, and issues a judgment that is itself the title for registration. Contested partitions take longer than consensual ones by a wide margin, and interim measures (for example, restraining a sale, or ordering an accounting of rents) are available while the case runs.

A foreign decree that adjudicated the Brazilian property is not without value in a contested Brazilian partition: it evidences the parties’ positions and the foreign court’s findings on facts, even though it does not bind the Brazilian judge on the division itself.

Timing relative to the foreign case

Where the foreign divorce is still pending, it is often possible to coordinate: the foreign court deals with the foreign assets and, if it wishes, takes the Brazilian assets into account when balancing the overall settlement, while the parties agree that the Brazilian assets will be divided in Brazil in a stated way. Brazilian counsel then prepares the Brazilian deed to mirror that agreement once the divorce is final and recognised. This avoids a foreign order that Brazil will not recognise and a Brazilian dispute that duplicates the foreign one.

Step 4: taxes on the partition

A partition of marital property in Brazil is a transfer for tax purposes only to the extent one spouse receives more than his or her entitlement under the regime. The main consequences are:

State gift tax (ITCMD) on a gratuitous excess

If the division gives one former spouse more than his or her share (excesso de meação) without compensation, the excess is treated as a gift and is subject to the state gift and inheritance tax, ITCMD, at the rate of the state where the property is located. Rates and thresholds vary by state and have been under reform. See our ITCMD guide and ITCMD rates by state.

Municipal transfer tax (ITBI) on a compensated excess

If the excess is compensated, for example one spouse keeps the apartment and pays the other for the difference, or takes on debt in exchange, the compensated portion is an onerous transfer of real estate and attracts the municipal transfer tax, ITBI, at the rate of the municipality where the property lies. See Brazilian property taxes.

Income tax: valuation choice

Federal income tax gives the parties a genuine choice here, and the statute sets both the rate and the deadline.

Lei 9.532/1997, art. 23 allows assets and rights transferred on a succession or an advance of the legítima to be valued either at market value or at the value shown in the transferor’s asset declaration, and §5 extends the same rule to assets attributed to each spouse on the dissolution of the marital partnership or family unit — which is what a divorce partition is. The consequences follow from §§1 to 4:

• Market value. The excess over the declared value is taxed as income at 15 per cent (§1). It crystallises the gain now but steps up the recipient’s basis, because §4 makes the transfer value the acquisition cost for any later capital-gains computation.
• Declared value. No tax at the partition; the low basis, and therefore the gain, passes to the recipient and surfaces on the eventual sale.
• The deadline is specific. Where the option is exercised on a dissolution of the marital partnership, §2, III requires the tax to be paid by the last business day of the month following the month of the sentença homologatória do formal de partilha — by the ex-spouse to whom the asset is attributed. This is a short window and it is easy to miss from abroad.

Which choice is better depends on each party’s residence status, the property’s historic cost and whether a sale is planned. Exemptions and reductions available to a Brazilian resident do not all extend to a former spouse who is a non-resident, so the two sides can face different answers on the same asset — which is a reason to model it before the deed is drafted, not after.

Practical modelling

Because the same economic outcome can be structured with different tax results (equal split plus a separate sale; unequal split with compensation; unequal split as gift), the partition deed is drafted after the tax consequences of each option have been modelled. This is Brazilian tax analysis; the foreign tax consequences of receiving or giving up Brazilian property are for the client’s adviser abroad, and the two need to be looked at together. See expat tax guide for US persons in Brazil for the US-side interaction.

Step 5: selling and remitting

Selling as a non-resident owner

After the partition is registered, a former spouse living abroad who now holds the property alone can sell it. The requirements:

• An active CPF. A CPF left dormant for years may need to be regularised before the notary will proceed.

• A power of attorney for the sale, with specific powers, signed abroad and apostilled or signed at a consulate. The form and content rules are the same as for any Brazilian real-estate act performed from abroad; the power-of-attorney route for Brazilian proceedings and the buying by power of attorney page set them out, the latter from the other side of the same closing. The property closing-cost calculator covers the transaction costs.

• Capital gains tax. A non-resident’s gain is computed and taxed under the same rules as a resident’s (Lei 9.249/1995, art. 18). The rates are the progressive bands in Lei 8.981/1995, art. 21, as amended by Lei 13.259/2016: 15% up to R$5 million of gain; 17.5% above R$5 million to R$10 million; 20% above R$10 million to R$30 million; 22.5% above R$30 million. The tax falls due by the last business day of the month following receipt of the gain (art. 21, §1).

  Who withholds is the point most often got wrong. Lei 10.833/2003, art. 26 — restated in art. 745, §3 do RIR/2018 (Decreto 9.580/2018) — places the responsibility on the acquirer, where the acquirer is resident or domiciled in Brazil, and on the acquirer’s procurador in Brazil, where the acquirer is itself resident or domiciled abroad. Art. 745, §4 adds a separate rate: 25% where the seller is resident or domiciled in a favoured-taxation jurisdiction. It is the buyer’s side that withholds and pays on a non-resident seller’s gain — not the seller’s own attorney-in-fact. A seller who assumes their own representative will handle it, and a buyer who does not realise the obligation is theirs, produce the same result: an unpaid withholding that surfaces when the proceeds are remitted. Settle it expressly in the contract.

  Exemptions and reductions available to residents are not all available, or do not apply in the same way, to a non-resident seller, which changes the after-tax figure and should be checked before a price is agreed.

• Registry and municipal steps: the buyer pays ITBI, the deed is signed and registered, and the seller obtains proof of the tax paid.

Our nonresident rental tax and real estate for foreigners pages cover the ownership period; buying property in Brazil describes the transaction from the other side.

Remitting the proceeds

Brazil does not restrict the remittance of sale proceeds abroad, but transfers go through authorised banks under the foreign exchange framework (Law 14.286/2021 and Central Bank rules). The bank will ask for the registered sale deed, proof of the seller’s identity and CPF, proof of the capital gains tax paid (the DARF), and, where the property was originally bought with foreign funds, may ask how the acquisition was funded. A former spouse who was a Brazilian resident at the time of the divorce and has since left should also have filed the definitive exit declaration, which affects how the proceeds are treated; see exit tax and definitive departure.

Where the property is instead kept and rented, the non-resident rules on rental income apply, and the former spouse should appoint a representative in Brazil for tax purposes.

A worked sequence

A typical consensual case, described in general terms:

1. The couple, one Brazilian and one foreign, divorced in a US state. The decree incorporated a settlement under which the Brazilian spouse keeps the São Paulo apartment and the foreign spouse keeps the US house, with a balancing payment.
2. Because the decree contains property terms, the divorce goes to the STJ for homologation. The petition is filed by both former spouses through Brazilian counsel, so the case is uncontested. The STJ homologates the dissolution; the parties do not rely on the STJ for the Brazilian property.
3. After the STJ certificate is annotated at the civil registry, the former spouses sign a partition deed at a São Paulo notary through their attorneys-in-fact, awarding the apartment to the Brazilian spouse. Because the couple’s first marital domicile was in Brazil and they had no prenup, partial community applies: the apartment, bought during the marriage, is half each, and the deed records the foreign spouse’s half passing to the Brazilian spouse.
4. The transfer of that half is compensated by the US settlement, so ITBI is paid on the half transferred; no ITCMD arises. The parties elect to pass the asset at the recorded value, deferring any capital gain.
5. The deed is registered, the Brazilian spouse becomes sole owner, and the foreign spouse’s Brazilian involvement ends, with the CPF kept active in case of future need.

Contested cases follow the same legal structure but replace the deed with a court judgment and add time, evidence and interim measures.

Documents to gather

• The foreign divorce decree and any incorporated settlement, apostilled and sworn-translated.
• The marriage certificate (Brazilian, or foreign with transcription in Brazil).
• Any prenuptial agreement, Brazilian or foreign.
• The property’s registry certificate (certidão de matrícula) and the deed by which it was acquired.
• Proof of the acquisition price and date, for income tax purposes.
• Municipal property tax (IPTU) and condominium clearances.
• Both parties’ CPF numbers and identity documents.
• Powers of attorney for Brazilian counsel and, if different, for the attorneys-in-fact who will sign the deed.
• Statements for Brazilian bank and investment accounts as at the relevant date.
• Company documents (articles of association, latest balance sheet) for any Brazilian company interest.

Related pages

• Binational divorce in Brazil
• Getting your foreign divorce recognised in Brazil
• Enforcing child support when the other parent is in Brazil
• Community property in Brazilian marriage
• Comparing marriage property regimes in Brazil
• Real estate for foreigners in Brazil
• Locating assets in Brazil: the registries and cadastres used when a spouse’s Brazilian holdings are not fully disclosed
• Filing a Hague Convention return petition in Brazil
• Cross-border family law landing page: divorce · homologation · child support · custody and abduction

Sources

• Código de Processo Civil (Lei 13.105/2015) — art. 23, III (exclusive Brazilian jurisdiction over the partition of Brazilian assets on divorce); arts. 960–965; art. 961, §§2, 5
• Lei de Introdução às Normas do Direito Brasileiro (Decreto-Lei 4.657/1942) — art. 7, §4 (property regime); art. 8 (law of the situs)
• Código Civil (Lei 10.406/2002) — arts. 1.027, 1.640, 1.641, 1.658–1.688
• Provimento CNJ 149/2023 — Código Nacional de Normas — art. 464, §3 (qualified consensual divorce requires STJ homologation)
• Resolução CNJ 35/2007, consolidated text — art. 36 (POA for a consensual divorce deed: public instrument, special powers, 30-day validity)
• Lei 9.532/1997 — art. 23 and §§1–5 (valuation choice on partition; the 15% rate; the payment deadline; cost basis)
• Lei 9.249/1995 — art. 18 (non-resident capital gains taxed under resident rules)
• Lei 8.981/1995 — art. 21 (progressive capital-gains bands, as amended by Lei 13.259/2016)
• Lei 10.833/2003 — art. 26 (withholding responsibility on a non-resident’s gain)
• Decreto 9.580/2018 — RIR/2018 — art. 745 (non-resident capital gains taxed under the resident rules), §3 (the acquirer, or the acquirer’s procurador where the acquirer is abroad, withholds and remits) and §4 (25% where the seller is in a favoured-taxation jurisdiction)
• Lei 14.286/2021 — foreign-exchange framework
• Lei 5.709/1971 — foreign ownership of rural land

This page is general information about Brazilian law and procedure. It is not legal advice for any specific situation and does not create an attorney-client relationship. Tax rates, exemptions and registry practice change and vary by state and municipality; every partition should be analysed on its own facts before any document is signed.

ZS Advogados Associados · Zachariah Zagol, OAB/SP 351.356 · Presidente Prudente, SP · zac@zsassociados.com · +55 (18) 3908-1653