Homologation and Foreign Sentence
This procedure is only possible through a lawyer properly subscribed in the lawyers’ bar of each country
Revision and confirmation of foreign sentence action
Portuguese citizens who got married, divorced or died abroad must have transcribed these “actions” in their portuguese civil record.
However, foreign court decisions, or of competent official entities, such as a Notary, related to civil state or capacity of a portuguese citizen must be revised and confirmed by a portuguese court.
After the revision and confirmation of the sentence, the court notifies the Conservatória do Registro Civil to provide the divorce endorsement for the birth certificate of the couples’ children, and marriage certificate of the portuguese citizen(s).
There aren’t any other ways to register the divorce in portuguese territory without revising and confirming the decision.
I was married twice and divorced twice: how to proceed?
In case you got married twice and divorced twice you must go through two foreign sentences acknowledgment procedures.
The processes happen individually, simply because the parties involved aren’t the same.
In the process of revising and confirming the divorce done abroad, the request may be done at the same time. And all parties involved may be represented by the same lawyer. That means that the procedure doesn’t involve a conflict of interest, being it only revises what has already been decided by the ex-spouses.
Besides, the fact that both parties agree means that there is no need to notify a defendant.
However, if one of the ex-spouses has died after the divorce, they must be represented by their legal heirs.
What is necessary for my divorce to be acknowledged in Portugal?
For the sentence to be confirmed:
There must be no doubts on the authenticity of the document, where the decision can be found, neither about the decision’s intelligence. The sentence must be properly notarized (Hague Apostille).
It must have been processed and judged according to the country it was sentenced to. There can’t be the possibility of legal resources in the country where the divorce process developed.
It must come from a foreign court whose competence has not defrauded the law and does not verse on the exclusive competence of Portuguese courts.
The defendant must be regularly mentioned in the process, according to the law in the original court’s country, and that, in the process, the principles of contradiction and equality of parts have been observed.
It can’t have a decision whose acknowledgment leads to a result incompatible with the international public order principles of the Portuguese State.
Necessary documents to acknowledge the divorce:
The necessary documents to start the process are:
Foreign sentence appropriately notarized
Birth certificate of the Portuguese citizen
Copy of the identification document of all parties
Why is it important to endorse my divorce in Portugal?
The procedure of registering acts of civil life in Portugal is mandatory.
However, endorsing the divorce may be necessary to obtain the Portuguese nationality of one’s descendants.
According to brazilian Law, the sentence given by a foreign judge or court will only be effective in the country after its homologation by the Supreme Court of Justice (STJ.
But what is a homologation process of a foreign sentence in Brazil?
It is a process that aims to check the validity of a foreign judicial act. Any É um processo que visa conferir eficácia a um ato judicial estrangeiro. Any decision, including non-judicial, made by a foreign authority will only come to effect in Brazil after its homologation by the Supreme Court of Justice (art. 4o da Resolução n. 09/STJ, may/04/2005).
The homologation process of a foreign sentence, as in any judicial process, must be made through a petition signed by a lawyer registered in Brazil’s Lawyers’ Order.
Until 2004, the process was of the Federal Supreme Court’s competence. After the n. 45/2004 amendment, the Superior Court of Justice is now the responsible organ for processing and judging the acts concerning the homologation of the foreign sentence, and concession of executing the letters of request.
Currently, it’s the STJ president’s role to homologate foreign sentences and give out letters of request. However, if there is an appeal, the process will be taken to court at the STJ’s special court and given to one of the ministers’ members of the organ (arts. 2nd; and 9th, §1st, of resolution n. 09/STJ, of may/04/2005).
The homologation procedure of the foreign sentence follows the resolution n. 09/STJ, of march 4th, 2005. Being so, the homologation must be requested necessarily by a lawyer through a petition addressed to the minister-president of the STJ and registered in the Coordenadoria de Processos Originários.
The indispensable conditions for the foreign sentence homologation in Brazil are:
being made by a competent authority;
The parties have been summoned or judged by default;
it cannot be subject to any kind of appeal; and
the sentence must be appropriately notarized.
Is there the need for postage costs for remittance and return of the records in this lawsuit?
No, because it is a process of the STJ’s competence. The only payment required refers to the process costs.
The average time of the homologation process varies, however, if it contains all the documents necessary and if there are no problems, it takes about two months to be concluded. The final purvey of the process will be a decision authorizing or not the homologation. If homologated, the lawyer must proceed to execute it, which, in this case, is determined by the Carta de Sentença. The requeree will be informed of the letter’s availability and the amount to be paid.
After the decision that homologates the foreign decision is transited and judged up until the point where there cannot be any more appeals, it is up to the requeree to ask for, no matter what petition, the extraction of the “Carta de Sentença” (art. 12 of resolution n. 09/STJ, of may 4th, 2005). It is a document given by the Coordenadoria de Execução Judicial through payment of a due.