THE POSSIBILITY OF EXTRAJUDICIAL DIVORCE IN A NOTARY OFFICE IN CASES INVOLVING MINOR OR INCAPACITATED CHILDREN: AN ANALYSIS OF THE TREND TOWARDS DEJUDICIALIZATION IN BRAZILIAN FAMILY LAW

Abstract

This article aims to analyze the feasibility and implications of performing an extrajudicial divorce, even in cases involving minor or legally incapacitated children, diverging from the traditional legal requirement that mandates judicial approval. It also examines the growing trend of dejudicialization within Brazilian Family Law regarding the institution of divorce, as a result of its historical and legislative evolution, through the promotion of consensual dispute resolution methods such as mediation and conciliation. Accordingly, the study demonstrates the possibility of conducting a consensual administrative divorce before a notary public, even when minor or incapacitated children are involved, provided that matters related to custody, visitation, and child support have been previously resolved and approved by the Public Prosecutor’s Office within the judicial sphere, in accordance with CNJ Resolution No. 571/2024.This research adopts a qualitative methodological approach, based on doctrinal, normative, and jurisprudential analysis. Its objective is to reaffirm the use of extrajudicial divorce as a mechanism for access to justice, the enhancement of responsible private autonomy, and the promotion of procedural efficiency and promptness, without compromising the full protection of the rights and interests of children and adolescents. It concludes that the acceptance of consensual extrajudicial divorce in cases involving minor or incapacitated children—following prior judicial resolution of parental and property issues—demonstrates the evolution of jurisprudential understandings and represents progress in aligning dejudicialization with the current configuration and needs of Brazilian Family Law.