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STJ Decision Reaffirms That Divorce in Brazil Is a Unilateral Right and Does Not Depend on the “Yes” of the Other Spouse Since Constitutional Amendment No. 66/2010.
The Superior Court of Justice (STJ) confirmed in a recent ruling that the consent of the other spouse is no longer necessary for divorce. The decision reaffirms an understanding that has been followed since the Constitutional Amendment No. 66/2010, but that still raises doubts among many Brazilians. In practice, this means that any married person can request a unilateral divorce, simply expressing the desire to end the marital bond — without relying on the “yes” of their partner.
The measure is considered a landmark in individual autonomy within family law, consolidating divorce as a potestative right, which cannot be impeded or denied by the other party.
What Changed with Constitutional Amendment No. 66/2010
Before the constitutional change, the law required prior judicial separation and a minimum period of cohabitation before allowing divorce. There was also the concept of “fault,” where one of the spouses was held responsible for the end of the relationship — which made the process lengthy, bureaucratic, and emotionally draining.
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With the enactment of Constitutional Amendment No. 66, Article 226, §6 of the Federal Constitution was amended, simplifying the process and eliminating these requirements. Since then, divorce has become an immediate right, requiring only the will of one of the parties.
This amendment represented a true silent revolution in Brazilian family law, paving the way for the so-called “direct divorce”, both judicial and extrajudicial (in notaries, in cases without minor or incapacitated children).
STJ Understanding Reinforces Individual Autonomy
In recent decisions, the Superior Court of Justice consolidated the understanding that no spouse can be forced to remain married against their will.
In one of the most cited precedents (REsp 1.236.067/RS), the Court stated:
“Divorce is a potestative right and does not depend on the agreement of the other spouse, requiring only the manifestation of will from one of the consorts.”
This understanding has been applied throughout the country, both in family courts and in notaries, ensuring agility and legal security for those who decide to end a marriage.
Divorce at Notary: Quick, Free, and Without Litigation
When there are no minor children and the couple agrees on the division, the divorce can be done directly at the notary, with the assistance of a lawyer.
The procedure is simple: just present personal documents, marriage certificate, and a formal agreement about assets and debts.
In cases where only one of the spouses wants to divorce, it is possible to file judicially, and the other will only be notified — without the power to prevent the termination of the bond.
This measure avoids lengthy processes and reduces the emotional suffering of those seeking a fresh start.
Social and Emotional Impact of the New Rule
Family law experts highlight that unilateral divorce represents a civilizational advance, as it recognizes the individual right to affective freedom.
The decision also has practical effects: it reduces the judicialization of marital conflicts and prevents marriage from being used as a means of coercion or emotional dependency.
However, legal scholars warn that, despite its simplicity, divorce does not exempt either party from legal obligations, such as alimony, child custody, or division of assets — these issues continue to be addressed separately.
Brazil is experiencing a new phase in marital relations. Since Constitutional Amendment No. 66/2010, divorce has ceased to be a request and has become a right.
The “yes” of the other spouse, previously a symbol of the end of the bond, no longer carries legal weight. Now, only the individual will is required to end the marriage — and to begin a new life cycle.
As the STJ itself summarizes, no one is obligated to remain married.
Moreover, more than a change in the law, this evolution reflects a social transformation: the recognition that the freedom to choose — including the choice not to remain — is an essential right.
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