Brazil Prenuptial Agreements

Planning a marriage with a connection to Brazil? A tailored prenuptial agreement can help you clarify your property arrangements before you marry. We advise on Brazilian requirements and, where another country is involved, coordinate with counsel there to address the relevant local rules.

If you are interested in drafting a prenuptial agreement with your loved one, it is important to find an attorney that can help you draw it up. Prenuptial agreements are often used when one member of the married couple has significant assets, such as land, savings, or investments. Family law attorneys can help you negotiate and define the terms of a prenuptial agreement, also called antenuptial agreements, which are made before marriage.

Where Brazil and another country are involved, the agreement needs to be assessed under the relevant rules in each jurisdiction. We can coordinate with your counsel abroad on requirements such as disclosure, independent advice, and signing formalities. An agreement prepared in one country is not automatically enforceable in another.

Deciding how Marital Property Should be Divided in Advance

When you are just starting to divide assets during a divorce, Brazilian and American law can dictate some divisions that do not seem entirely fair to either party. For example, the retirement account from a spouse may be pierced to compensate the other spouse for the growth attained during the course of the marriage. When you draft a prenuptial agreement, many of these issues may be avoided, and the divisions will be fairer. By drafting a prenuptial agreement, you and your spouse can protect the items and assets that are most important to you.

Main Advantages of the Prenuptial Agreement

Taking the time to get a prenup in place brings many benefits, such as:

• Brings peace of mind
• Creates a marriage property regime tailored to the couple
• Reduces the risk of post-marriage litigation
• May reduce the chances of a marriage motivated by financial interest
• Adapting the Brazilian marriage property system to match a regime from another country

Pacto Antenupcial

Pacto Antenupcial is how Brazilians call a prenuptial agreement. While it has the same goals of a prenuptial agreement in the US, in Brazil it must follow certain guidelines. While such agreements are usually shorter in Brazil, they must be formally recorded in one or more Brazilian cartorios (registry) to become enforceable:

• Tabelião de Notas: it is a cartorio dedicated to record and make available to the public notices such as prenuptial agreements.
• Cartório do casamento: this is the cartorio in charge of marriages.
• Registro de Imóveis: this is the cartorio in charge of real estate properties and records.

Prenuptial by Power of Attorney

It is possible to have a prenuptial agreement registered in Brazil through Power of Attorneys. However, each of the spouses will need to have their own representatives. The process is somewhat complex since multiple steps are required for the POA provided by the foreign spouse to be accepted in Brazil.

Additionally, we do not recommend since using a POA may increase substantially the chances of a prenuptial’s validity being disputed later on.

Protecting Your Child’s Property Rights

In some cases, prenuptial agreements are drawn up mainly to protect the rights a child has to his or her property. If you have children from a previous marriage, a prenuptial agreement might be wise. There have been many cases in the United States and Brazil in which a stepparent has disinherited children from a previous marriage to take on those from a new one.

Antenuptial and Postnuptial Agreements

“Antenuptial” means before marriage and is another term for a prenuptial agreement. An agreement made after marriage is generally called a postnuptial agreement. In Brazil, changing the property regime after marriage follows a separate legal process; signing a new private agreement alone does not change that regime. Ask us to assess the appropriate steps for your circumstances.