(PT) Decision at the CNJ reaffirms the indispensability of advocacy on family law issues - RMS Advogados
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Decision at the CNJ reaffirms the indispensability of advocacy on family law issues


In Providence Request nº 0006263-14.2019.2.00.000, pending before the National Council of Justice, reported by Counselor Marcos Vinícius Jardim Rodrigues, regarding the disclosure of a consensual dissolution campaign for stable unions and divorce by a judicial body, in which the attorney’s need to be dismissed was decided by the need for the CNJ to rule on the mandatory nature of law in this pre-procedural phase, allowing, in theory, the revision of Resolution / CNJ No. 125/2010.

The specific case turns to the application of this normative act by a Court of Justice. Resolution / CNJ nº 125/2010 provides for the National Judicial Policy of adequate treatment of conflicts of interest in the Judiciary. It aims to disseminate the culture of social pacification and the most appropriate solution of conflicts using methods, such as mediation and conciliation. In addition, it provided for the installation of the Permanent Centers for Consensual Conflict Resolution Methods and the Judicial Centers for Conflict Resolution and Citizenship, among other initiatives.

In the factual situation, the requesting party informed that a judicial body released a consensual divorce and dissolution of stable union agreement, highlighting in the pamphlets that the presence of a lawyer is optional, despite the mandatory stipulation in the civil procedural law, notably the requirement that the deed of divorce, separation and / or extinction of a stable union is only drawn up if the interested parties are assisted by a lawyer or public defender (art. 733, § 2, CPC / 2015).

The Court clarified that the disclosure pamphlets were prepared “aiming at simplifying the ordinary citizen’s understanding of their content about one of the services provided by CEJUSC”, arguing “that the faculty of the presence of a lawyer and the non-appointment of a dative lawyer are provided for in Resolution / CNJ No. 125/2010 ”, as well as the question of the indispensability of the lawyer not being absolute, due to the“ hypotheses in which the jus postulandi can be exercised legitimately ”.

The rapporteur, Counselor Marcos Vinícius Jardim Rodrigues, explained that “the presence of a legal representative in matters of family law, more than enabling the necessary technical and scientific support, concretizes the constitutional rule of the attorney’s inescapability to the administration of justice, perfecting legal security. , due to legal, contradictory process and wide defense, including in the listed pre-procedural phase ”.

It was added about the exceptions of the jus postulandi, that such “should be treated in the exact understanding of its limits of particularity, of punctuality in face of the rule of the full performance of the law”, since the civil procedural norm is clear in demanding “the presence of the lawyer in the drawing up of consensual separation and divorce public deeds – that is, for the performance of an extrajudicial act and, therefore, there is no reason to exercise discretion in the typical CEJUSC deeds ”.

Finally, the request for measures was not known, due to the supervening loss of the object, since the task force had already been carried out, but it was determined to send the full copy of the records to the CNJ’s Permanent Commission for Adequate Conflict Resolution. The objective was to prepare an opinion on “the mandatory nature of advocacy in CEJUSC conciliation and mediation hearings”, in harmony with the rules of CPC / 2015, “aiming, in theory, at revising the norm from this House”.

By: Wilson Sales Belchior


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