Brazilian laws – specifically article 852 of the Civil Code – do not accept the arbitration clause as means to solve conflicts when personal matters of family law which are not exclusively related to wealth are involved. However, this limitation itself can no longer completely exclude arbitration, which continues to expand in all areas of law, including family and successions.
Arbitration, in any area, shall deal with disposable assets and rights – meaning assets and rights than can be disposed by their owner, whether subjectively or objectively. In addition to these requisites, there is the need for the parties to express their will to submit their conflicts to arbitration. As a consequence, litigations involving, for instance, an heir incapable of exercising his/her responsibilities or provisions related to alimonies cannot be subjected to an arbitration procedure.
Even though it is necessary to pay attention to the matter discussed, one must acknowledge the broad range of situations encompassed by arbitrations. Among them there is the review of estate settlement in judicial separation, the judgment of estate settlement derived from dissolution of domestic partnership, discussions about the share of inheritance that is not bound by law and the agreement of donation of quotas. It also includes the use of arbitration to calculate the inventory of assets in a judicial action for partial dissolution of a company after the death of a partner.
The speed involved in solving the litigation and the confidentiality of the procedure are major advantages of using the arbitration procedure in litigations related to family and successions. That is because the discussions tend to be related to intimate matters, present on the involved ones’ daily situations, which causes severe emotional distress when divulged without actual need or when extended. It is also important to consider the possibility of property losses derived from the possible unavailability of the assets during the litigation in the Judiciary or from the depreciation of the value of the assets throughout time.
Another interesting aspect is the possibility of choosing arbitration when dealing with disposable rights in parallel to a judicial discussion about rights that cannot be disposed. The possibility of submitting to arbitral procedure matters involving disposable assets and rights of heirs capable of exercising their responsibilities, aside from the mandatorily judicial discussion about the share of inheritance that is bound by law or about the share owned by an heir incapable of exercising his/her responsibilities, when the judicial estate settlement is pending, seems profitable. This procedure can contribute to settle smaller litigations that demand urgency, whether due to personal interest of a party or due to the economic value involved.
Moreover, it is important to highlight the possibility that a living person can determine that after his/her death, the discussions involving his/her estate settlement shall be solved by means of arbitration. The jurists’ opinions are not unanimous as to the matter: some of them believe that it is mandatory to accept the person’s last will and others believe that the heirs may decide to submit the matter to the Judiciary or to arbitration.
The case law of our courts is still in full development as to the matters that can be subjected to arbitration, but tends to expand towards acceptance. Therefore, it is recommendable for the parties who intend to use arbitration in matters related to family and succession in future litigations to provide, since now, the arbitration clauses in property regimes, pre-nuptial agreements or even wills, already recording the so needed expression of will.