Extrajudicial Divorce at a Notary Office: Requirements and Documents

Extrajudicial divorce at a notary office streamlines the dissolution of civil marriage through a public deed, requiring consensus, an attorney, and no unresolved issues regarding minors.

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Por Notarial Drafting Team of the 5th Notary Office of Recife — Technical and Legal Notarial Drafting · 5º Tabelionato de Notas de Recife

Context Note: This content describes Brazilian notary law and procedures.

Title

Requirements and Necessary Documentation for Extrajudicial Divorce at a Notary Office

Requirements and Necessary Documentation for Extrajudicial Divorce at a Notary Office

This article answers

  • Who is entitled to get an extrajudicial divorce at a notary office?
  • What are the legal requirements for a divorce at a notary office?
  • What documents are required for a divorce at a notary office?
  • Is an attorney required for a divorce at a notary office?
  • How do asset division and alimony work in an extrajudicial divorce?

In summary

  • Extrajudicial divorce at a notary office is the notarial act that terminates a civil marriage bond through a public deed (escritura pública), without the need for court proceedings.
  • It requires full consensus between the couple regarding the end of the marriage, asset division, name change, and spousal support (alimony), if applicable.
  • It requires the presence and assistance of an attorney registered with the OAB (Order of Attorneys of Brazil) or a public defender to advise the parties and sign the act.
  • The public deed of divorce produces immediate legal effects, dispensing with judicial approval, and serves as an effective title for annotation (averbação) in the Civil Registry and the Real Estate Registry.

Who is entitled to get an extrajudicial divorce at a notary office?

You are entitled to opt for an extrajudicial divorce at a notary office when there is full agreement between the spouses regarding the end of the union. This procedure aims to streamline the dissolution of civil marriage, allowing the execution of the public deed directly before a notary public (tabelionato de notas) Lei nº 11.441/2007, art. 1º.

Anyone married under Brazilian law can use this pathway, regardless of the marital property regime adopted in the marriage. The rule applies both to marriages celebrated in Brazil and to marriages performed abroad that have been duly registered in the country.

If you and your spouse agree on the division of assets and the terms for ending the union, the act can be formalized at any notary office (tabelionato de notas) in the country. To learn more about the relationship between property regimes and dissolutions, see our article on divorce, stable union, and prenuptial agreements.

To perform an extrajudicial divorce at a notary office, the Brazilian legal system establishes three essential requirements that ensure the validity and legal certainty of the notarial act Lei nº 8.935/1994, art. 1º.

The first requirement is consensus. There can be no disagreement between the parties. If there is any dispute regarding asset division, the use of a surname, or alimony, the procedure must be handled through the judicial system.

The second requirement is the absence of minor or legally incapacitated children resulting from the union. However, according to regulations from the Conselho Nacional de Justiça (National Council of Justice) in Provimento CNJ nº 149/2023 (CNJ Provision No. 149/2023), if issues regarding custody, visitation, and child support for minor children have already been previously resolved in court, the public deed becomes fully viable Provimento CNJ nº 149/2023, Livro II.

The third requirement is legal assistance. The law mandates the presence of an attorney duly registered with the Ordem dos Advogados do Brasil (OAB - Order of Attorneys of Brazil) or a public defender throughout the entire procedure.

What documents are required for a divorce at a notary office?

Documentation is a fundamental step to prove the civil capacity and ownership of assets of the parties in an extrajudicial divorce at a notary office.

For the identification of the spouses, you must present an official photo ID (RG, CNH, or functional card) and the CPF (Taxpayer Registry). An updated marriage certificate must be presented, issued by the Registro Civil das Pessoas Naturais (Civil Registry of Natural Persons) within the last 90 days. This requirement confirms that there are no prior impeding annotations (averbações). For details on civil registration, see our guide on divorce annotation in the civil registry.

If there is a prenuptial agreement (pacto antenupcial), you must present the deed certificate of the agreement and proof of its registration in the competent Real Estate Registry. For the attorney, an updated OAB identification card is required.

When there are assets to be divided, an updated title deed certificate (certidão de matrícula) for real estate, property tax statements (IPTU or ITR), vehicle registration documents, and tax clearance certificates must be presented.

Variations by state

Specific rules regarding the presentation of certificates and notary fees (emolumentos) are governed by the Codes of Normas of the Corregedorias-Gerais de Justiça (Judicial Inspectorates) of each state. In some federal units, a clearance certificate for court actions is required, while in others, such certificates are waived if the parties declare awareness. Prior consultation with your preferred notary office ensures alignment with local digital stamping and taxation rules.

Is an attorney required for a divorce at a notary office?

Yes, the participation of an attorney is indispensable and legally mandatory for executing the public deed of an extrajudicial divorce at a notary office Lei nº 11.441/2007, art. 1º.

The legal professional advises the parties, ensures the balance of the agreement, and drafts the draft deed containing property and personal clauses. The attorney may represent both spouses jointly, or each party may hire their own individual attorney.

Their signature is mandatory on the public deed alongside the signatures of the parties and the notary public (tabelião) or their legal deputy Lei nº 10.406/2002 — Código Civil, art. 215. The absence of a legal professional invalidates the notarial act.

How do asset division and alimony work in an extrajudicial divorce?

In an extrajudicial divorce at a notary office, you and your spouse freely define how the common assets accumulated during the union will be divided.

If the division of assets is performed equally according to the marital property regime, no transfer tax applies. However, if one spouse receives a larger share of the assets without paying financial compensation to the other, it constitutes a gift/donation, subject to state gift/inheritance tax (ITCMD). If there is financial payment for the excess share, municipal real estate transfer tax (ITBI) applies.

Spousal support (alimony) between ex-spouses can also be stipulated in the deed itself. The document will state the amount, due date, adjustment index, and bank account for deposit. The parties may also expressly waive the right to support. To check detailed documentation on dissolutions, access our page on documents for stable union and extrajudicial estate settlement.

The change or retention of a married name is defined in the same act. The spouse who adopted the other's surname may choose to return to their maiden/single name or keep their current name.

Checklist of documents

To organize your procedure, use this practical checklist of required documents for executing the deed:

  • [ ] Official photo identification document (RG, CNH, or passport) and CPF of the spouses.
  • [ ] Updated marriage certificate (issued by the Civil Registry within the last 90 days).
  • [ ] Public deed of prenuptial agreement and certificate of its registration in the Real Estate Registry (if applicable).
  • [ ] Professional identification document (OAB card) of the assisting attorney.
  • [ ] Updated proof of residence for both parties.
  • [ ] Birth certificate or ID document of children (if applicable).
  • [ ] Updated title deed certificate (matrícula) and certificate of encumbrances for urban or rural real estate to be divided.
  • [ ] Municipal or rural property tax clearance certificates (IPTU or ITR) for divided real estate.
  • [ ] Vehicle ownership document (CRLV-e) and statement of debts or fiduciary liens (if applicable).
  • [ ] Proof of payment of state or municipal transfer tax (ITCMD or ITBI) in cases of unequal division.

In practice

Below are two concrete and anonymized examples of applying this procedure in a notary setting:

Case 1: Equal division and return to single name

A couple with no minor children decided to dissolve their marriage under the partial community property regime. They owned a single mortgaged apartment. With the assistance of a single attorney, they agreed to sell the property and split the net proceeds 50% each. The wife chose to return to her single name. They appeared at the notary office with an updated marriage certificate, signed the deed, and delivered the official copy (traslado) to the Civil Registry of Natural Persons for due annotation (averbação).

Case 2: Divorce with division of personal property and waiver of alimony

Another couple, with no real estate assets and adult, legally capable children, sought an extrajudicial divorce at a notary office. The couple chose to retain individual ownership of their accumulated personal property and formally declared a mutual waiver of spousal support. Each spouse was represented by their own attorney. The public deed was executed on the same day the clearance certificates were presented and sent for annotation on their marriage certificate at the Civil Registry of Natural Persons.

Common errors

Avoid the most common mistakes made during the divorce process at a notary office:

  • Presenting an outdated marriage certificate: Presenting a certificate that has not been updated within the last 90 days prevents execution, as the notary must verify the absence of prior impediments or notes.
  • Attempting the procedure with an active dispute: Any disagreement over values, real estate, or support voids the possibility of the notary route, causing nullity under Article 166 of the Código Civil (Brazilian Civil Code) Lei nº 10.406/2002 — Código Civil, art. 166.
  • Omitting the attorney's presence: The procedure cannot be carried out directly with the notary office without the participation, guidance, and signature of a qualified OAB attorney Lei nº 11.441/2007, art. 1º.
  • Forgetting to annotate the deed at the Civil Registry: Executing the public deed at the notary office does not complete the process. The document must be submitted to the Civil Registry of Natural Persons where the marriage was registered for proper annotation (averbação) in the margin of the record Lei nº 8.935/1994, art. 1º.
  • Failing to pay state tax on unequal division: Failure to settle ITCMD or ITBI taxes prior to execution in cases of non-equal property transfer prevents the execution of the notary deed.

Below are the federal normative bases governing the procedure:

  • Lei nº 11.441/2007 (Law No. 11,441/2007), art. 1º — Amends provisions of the Code of Civil Procedure to allow consensual estate settlement, asset division, separation, and divorce through extrajudicial means. Available at Portal da Legislação do Planalto Lei nº 11.441/2007, art. 1º.
  • Provimento CNJ nº 149/2023 (CNJ Provision No. 149/2023), Book II — Consolidates the National Code of Normas of the National Inspectorate of Justice for Extrajudicial Services. Available on the website of the Conselho Nacional de Justiça Provimento CNJ nº 149/2023, Livro II.
  • Lei nº 10.406/2002 (Código Civil - Brazilian Civil Code), art. 215 — Establishes the public deed as a document endowed with public faith and full proof of the acts contained therein. Available at Portal da Legislação do Planalto Lei nº 10.406/2002 — Código Civil, art. 215.
  • Lei nº 10.406/2002 (Código Civil - Brazilian Civil Code), art. 166 — Defines the general grounds for nullity of legal transactions. Available at Portal da Legislação do Planalto Lei nº 10.406/2002 — Código Civil, art. 166.
  • Lei nº 8.935/1994 (Law No. 8,935/1994), art. 1º — Regulates Article 236 of the Federal Constitution regarding notary and registration services. Available at Portal da Legislação do Planalto Lei nº 8.935/1994, art. 1º.

Frequently asked questions

Who is entitled to get an extrajudicial divorce at a notary office?

Any civilly married couple who agrees on the termination of the union and the terms of separation is entitled. The procedure requires consensus and the assistance of an attorney or public defender.

The main requirements are total consensus between the parties, the absence of minor or unemancipated legally incapacitated children (unless custody and support issues have already been resolved in court), and the assistance of a qualified attorney.

What documents are required for a divorce at a notary office?

Required documents include official photo IDs (RG and CPF), an updated marriage certificate (issued within the last 90 days), a prenuptial agreement (if applicable), proof of residence, and documents of the assets to be divided.

Is an attorney required for a divorce at a notary office?

Yes. The presence and signature of an attorney or public defender are mandatory legal requirements. The attorney may represent both parties jointly, or each spouse may have their own legal counsel.

How do asset division and alimony work in an extrajudicial divorce?

Asset division and spousal support are consensually set forth in the public deed itself. If there is an unequal transfer of property without financial compensation, state tax (ITCMD or ITBI) may apply and must be settled prior to execution.

Notarial Editorial Team of the 5th Notary Office of Recife

Date of last legal review: August 25, 2026

Protocol version: PEAN v1.0

Informational content; does not replace legal advice for concrete cases.

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