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Which court has jurisdiction, which law applies, and what happens to your children and assets when one spouse lives in Italy and the other in Brazil
You signed the Italian divorce papers, the judge approved the order, and you assumed it was done. It is not — not in Brazil. That assumption is the single most expensive mistake we encounter in Italian-Brazilian divorce matters, and in 2026 in a way it simply wasn't three years ago.
Here is the problem in one sentence. Brazilian courts are now applying a strict 10-year limitation period to asset-division claims counted from the date an Italian divorce decree becomes final, under Art. 205 of the Brazilian Code of Civil Procedure (Código de Processo Civil). Couples who divorced in Italy in 2015 or 2016 without having the financial terms recognised by Brazil's Superior Court of Justice (Superior Tribunal de Justiça, STJ) are now watching that window close. Once it closes, the Italian order on property and maintenance is unenforceable in Brazil.
Yes — and more easily than many couples expect. Italian courts have jurisdiction over divorce whenever at least one spouse is habitually resident in Italy, regardless of the other spouse's nationality or location. This jurisdiction derives from / stems from EU Regulation No. 2201/2003, now largely superseded by the Brussels IIb framework, and from Italy's own private international law statute, Law 218/1995.
Unlike divorce proceedings in Brazil, where both spouses must appear before a notary (tabelião) or a court depending on whether children are involved, Italian procedure allows a Brazilian spouse abroad to participate by granting a power of attorney. The Italian court of the petitioner's place of residence handles the file. Uncontested divorces in Italy proceed before the civil registrar (ufficiale di stato civile) for straightforward cases or before the tribunal for anything involving property, support or children. Contested cases take on average 12 to 18 months at first instance; uncontested registrar divorces can be finalised in approximately 30 days.
One practical point: the mandatory separation period before divorce in Italy, which once required spouses to live separately for at least six months (consensual) or twelve months (contested), was abolished for new proceedings by Legislative Decree 149/2022 (D.Lgs. 149/2022), effective 28 February 2023. Italian law now allows direct divorce without prior judicial separation — bringing it structurally closer to Brazil's own direct divorce system introduced by Constitutional Amendment 66 of 2010. Separation agreements executed before that reform, however, continue to govern joint-asset rights in cases commenced under the old rules.
Most guides stop here. The honest answer is: it depends on where you live — and partly on your own election.
Italy applies EU Regulation (EU) No. 1259/2010 — known as Rome III — to determine the substantive law governing a divorce. Rome III allows spouses to choose the applicable law, provided they agree in writing before proceedings begin. For an Italian-Brazilian couple habitually resident in Italy, the options include Italian law, Brazilian law (as the law of the nationality of one spouse), or the law of the forum / the lex fori. If no choice is made, Rome III applies a hierarchy: habitual residence of both spouses first, then last common habitual residence, then common nationality.
This matters enormously in practice. Brazilian divorce law, as reformed by Constitutional Amendment 66/2010, requires no grounds, no finding of fault, and no waiting period. Italian divorce law under Law 898/1970, as amended, similarly requires no fault in substance, but procedural timings and the rules on asset division under the Italian community of property regime (comunhão de bens / comunione dei beni) differ from Brazilian matrimonial property law. A couple that actively selects Brazilian law under Rome III can, in principle, obtain a divorce in Italy governed by the more permissive Brazilian substantive framework. Few advisers flag this option.
Res iudicata pro veritate accipitur — a final judgment is taken as truth. The problem is that "final" in Italy does not automatically mean "final" in Brazil.
An Italian divorce decree has no automatic effect at the Brazilian civil registry. Whether and how it is recognised in Brazil depends entirely on its content.
If the Italian decree is purely a dissolution of the marriage — no contested custody order, no maintenance award, no disputed property — Brazilian law permits direct annotation at the civil registry (cartório) under a simplified administrative route, without STJ intervention. The couple presents a certified copy of the Italian judgment with an apostille and a sworn translation, and the civil registry updates the marital status. This route is faster (weeks rather than months) and costs a fraction of full homologation.
If the Italian decree contains any contested custody arrangement, a maintenance order, or a disputed property division, direct annotation is unavailable. The entire decree must go through full STJ homologation under Arts. 961 to 965 of the Brazilian Code of Civil Procedure. That process typically takes between 12 and 24 months and costs approximately R$ 8,000 to R$ 15,000 in court fees and legal costs, depending on complexity. The STJ verifies that the Italian proceedings respected due process, that service was properly effected, and that recognition does not violate Brazilian public policy (ordem pública).
Unlike in most common-law countries — where a foreign divorce judgment is generally recognised as a matter of status without separate proceedings — Brazil requires affirmative homologation before foreign financial orders bind parties or assets within Brazilian territory. An English or Australian court would ordinarily recognise a foreign divorce decree by operation of law or by registering it under a straightforward procedure. The STJ route is a full merits check of procedural compliance, not a rubber stamp.
This is where the 2026 deadline bites. The 10-year limitation period under Art. 205 of the Brazilian Code of Civil Procedure begins to run from the date the Italian judgment becomes final (passaggio in giudicato / trânsito em julgado). A couple whose Italian divorce became final in, say, September 2016 must file the STJ homologation petition before September 2026 or lose the ability to enforce the Italian financial terms in Brazil permanently. We are handling files right now where that date has passed or is weeks away.
Child custody in an Italian-Brazilian divorce involves two overlapping regimes, and they do not always point in the same direction.
On the Italian side, parental responsibility for children habitually resident in Italy is governed by EU Regulation (EU) 2019/1111 — the Brussels IIb Regulation — which has applied since 1 August 2022. Under Brussels IIb, Italian courts have jurisdiction over parental responsibility whenever the child is habitually resident in Italy at the time proceedings are issued. That jurisdiction is exclusive in relation to other EU Member States; it does not, however, bind Brazilian courts.
Brazil is not an EU Member State and is not party to any treaty that recognises Italian parental responsibility orders automatically. Brazilian courts will examine custody disputes under their own private international law rules, giving weight to the child's habitual residence and best interests as understood under Brazilian law.
Where the two systems converge is on child abduction. Both Italy and Brazil are contracting states to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Brazil acceded in 2000; Italy ratified it under Law 64/1994). Where one parent removes a child from Italy to Brazil without the other's consent, the Hague 1980 mechanism applies: the Brazilian Central Authority (Autoridade Central, administered by the AGU — Advocacia-Geral da União) handles the return request. Italian courts issue a non-return finding under Brussels IIb, Art. 29; Brazilian courts decide the return application independently but must apply the Hague 1980 standard.
The coordination risk is this: a parent who obtains a Brazilian custody order while an Italian custody proceeding is pending can create a conflict that takes years to resolve. In abduction-risk cases, simultaneous protective measures in both jurisdictions — urgent provisional orders in Italy under Brussels IIb Art. 15, and precautionary measures before the Brazilian family court — are the only reliable way to preserve both parents' positions.
In our files, the most common error is treating the Italian divorce as final without checking whether it needs STJ homologation in Brazil. Couples — and sometimes their Italian lawyers — close the Italian file, celebrate, and do nothing further. Years later, when one spouse tries to enforce a maintenance order or claim a share of property held in Brazil, they discover the Italian order has never been recognised and the limitation period has run. The second most common error is failing to note that the simplified cartório route is unavailable the moment the Italian decree includes any financial or custody term that was disputed at any stage of the proceedings, even if it was later settled consensually in the course of the hearing.
First: locate your Italian divorce decree and check its date of finality. If it became final after 2014 and contains financial or custody terms, you need to establish urgently whether the 10-year limitation period under Brazilian law has expired or is running.
Second: check whether your Italian decree was ever submitted to the STJ for homologation. If not, and if the Italian order includes maintenance, asset division or custody terms, you need Brazilian legal advice on whether the window is still open.
Third: if children habitually resident in Italy are involved in ongoing or potential custody proceedings, obtain Italian legal advice on the Brussels IIb framework before making any move — including any proposed relocation to Brazil — that could affect the court's jurisdiction.
None of these steps requires litigation immediately. All of them require current information. The cost of the STJ homologation process is significant; the cost of missing the limitation period is permanent.
Can my Brazilian spouse stop an Italian divorce from going ahead?
No. Italian courts have jurisdiction whenever one spouse is habitually resident in Italy. A Brazilian spouse who does not appear in the proceedings is served through the Italian Hague Convention channels or by publication; the proceedings continue in their absence. A contested hearing will take longer, but jurisdiction cannot be blocked by one party's non-participation.
Do I need an Italian lawyer and a Brazilian lawyer for an Italian-Brazilian divorce?
In most cases involving property or children, yes. The Italian proceedings and the Italian court order are handled under Italian law. The STJ homologation in Brazil, if required, is a separate Brazilian procedure requiring a lawyer admitted before the Brazilian courts. An Italian law firm advising on Italian law can work alongside Brazilian counsel; neither alone covers both jurisdictions.
What happens to property in Italy and property in Brazil?
Property located in Italy is divided according to the matrimonial property regime applicable under Italian and EU private international law rules, which may be Italian community of property law or the law chosen under Rome III. Property located in Brazil is subject to Brazilian law and can only be divided by a Brazilian court order or by the STJ's homologation of an Italian order that includes those assets. A property division agreed in the Italian proceedings will not move Brazilian-sited assets until the STJ recognises it. Two parallel proceedings are sometimes the only practical solution.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
