UNILATERAL DIVORCE: A PROPOSAL FOR A PROCEDURE IN SEARCH OF ENFORCEMENT OF THE FUNDAMENTAL RIGHT OF ACCESS TO JUSTICE

Abstract

Since the law no. 11.441/2007 came into force, it became possible to carry out an divorce outside Court. However, such dejudicialization is not complete, as it depends on consensus between the spouses and the absence of incapacitated individuals. It turns out that the doctrine classifies divorce as a potestative right, ensuring that, even without the consent of the other party, a spouse can divorce. Therefore, legislative progress is necessary to allow unilateral divorce to be carried out extrajudicially, which makes the constitutional precept of access to justice more effective. Along these lines, a state provision was issued in Pernambuco, estate in Brazil, which resulted in its repeal as recommended by the National Council of Justice (CNJ). A Bill on the subject is being processed, which proposes the inclusion of article 733-A in the Code of Civil Procedure. This project aims to allow that, in the absence of consent from one of the spouses, the other can request the registration of the divorce at the Civil Registry Office, if there is no unborn child or incapacitated children. The article seeks to answer whether this proposal for unilateral direct divorce can contribute to the effective management of family conflicts and, consequently, to the fundamental right of access to justice, from the perspective of dejudicialization. To this end, concepts of access to justice, potential rights associated with divorce and the adequacy of the legislative proposal to current legal institutes are analyzed, aiming to present a conclusive procedural proposal, concluding with a proposal to amend the CPC that is consistent with the duties that extrajudicial services exercise, given that the current wording of the bill in progress proves to be unconstitutional. The research uses bibliographic review as a method, followed by qualitative analysis to arrive at a normative proposition.