02/13/2024 – 16:50
The 3rd Family and Succession Court of Santos, on the coast of São Paulo, ordered a post-mortem divorce, with retroactive effects to the date the action was filed, due to the death of the spouse after being summoned in the process. In the sentence, judge Mariella Amorim Nunes Rivau Alvarez highlighted that jurisprudence has been admitting the possibility of a post-death divorce decree in cases of death of the spouse during the course of the action, when the will of either party to divorce has already been expressed.
Mariella highlighted that the change must necessarily be preceded by regulatory communication to the opposing party, by summons – as is the case in the case file. “The action containing the author's unequivocal expression of will aimed at decreeing the divorce was filed before the death of the defendant, who was regularly cited, fulfilling the necessary triangulation of the dispute”, decided the judge of the 3rd Family and Succession Court of Santos.
She wrote it down. “For this reason and because it is the plaintiff's potential right, whose expression of will is clearly expressed in the initial petition, the divorce must be decreed, with retroactive effects to the date the action was filed.”
As the couple did not acquire any assets during the period in which they lived together and the death certificate did not indicate the existence of assets left behind, judge Mariella Amorim Nunes Rivau Alvarez stated that there was no need for procedural succession, with 'the prompt decree of divorce being strictly speaking' post mortem'.
#Judge #grants #divorce #death #spouse
