Divórcio litigioso: sobre a possibilidade de julgamento antecipado do mérito ou concessão de tutela de evidência

Abstract

The divorce mechanism has become commonplace, often being the desire of one or both spouses to see themselves legally separated and in fact, in the quickest and least traumatic way possible. However, in many cases it is necessary to resolve patrimonial and children’s involving issues, which can delay the personal plans of the individuals involved and frustrate them. The purpose of this article is to question whether it would be possible to enact a litigious divorce without hearing the opposing party, based on the institutes of the preliminary injunction, considering the main doctrinal and jurisprudential currents on the subject, without losing sight of the procedural and material principles established in the Brazilian legal system, as well as also considering the institute of summary judgement. In addition, it seeks to clarify whether the right to divorce would be potestative, critically analyzing the institute of marriage and divorce according to constitutional, legislative, and factual changes in the history of Brazilian law. The methodology of this study will be based on a bibliographical review of doctrinal works and jurisprudential analysis. The problem lies in the doubt as to the possibility of judicial decree of divorce without hearing the defendant, at the beginning of the process, either by means of evidence guardianship or by partial early judgment of the merits. The hypothesis is that it is possible to carry out the divorce in this way by both institutes, given that we are facing a potestative right. It is concluded that although there is considerable jurisprudential divergence on the subject, it should be appropriate to decree the divorce outright, both for the evidence guardianship and for the partial early judgment of the merits, in view of the preference for other procedural and material principles in relation to legal certainty, which in the concrete case only aims to prevent the surprise of the other spouse of being divorced.