Court Fee Waiver: Who Qualifies and How to Request It

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

The gratuidade da justiça (court fee waiver) allows people without sufficient financial means to access the courts without paying court costs, fees, and procedural expenses up front. The benefit is governed by Articles 98 to 102 of the Code of Civil Procedure (Código de Processo Civil) and covers both individuals and legal entities that can show they lack sufficient resources. Knowing who qualifies, how to prove need, what the benefit covers, and how to respond to a challenge keeps the cost of a lawsuit from becoming a barrier to defending a legitimate right.

Who Can Request the Fee Waiver

Article 98 of the Code of Civil Procedure provides that any individual or legal entity, Brazilian or foreign, that lacks sufficient resources to pay court costs, procedural expenses, and attorney’s fees is entitled to the fee waiver. The wording is broad. It does not limit the benefit to a specific income bracket. It requires only concrete proof that paying these costs would compromise the support of the applicant or the applicant’s family.

For individuals, the law works in your favor from the start. Article 99, paragraph 3, presumes that an individual’s claim of insufficient resources is true. As a rule, this means you do not have to file extensive documentation right away. Legal entities face a higher bar. The higher courts hold that a company or organization must actually prove that it cannot afford the costs of the case, and a simple statement is not enough.

Keep in mind that either party, plaintiff or defendant, can request the benefit at any stage of the case. Financial circumstances can change over time, and the law allows the waiver to be granted later or revoked when a party’s economic situation changes.

How to Prove Insufficient Resources

Although individuals benefit from a presumption of truthfulness, that presumption can be rebutted. If the record contains evidence of financial capacity, the judge may order the applicant to prove that the requirements are met. For that reason, gathering documents from the outset is a prudent step that lowers the risk of denial and strengthens the request.

The documents most commonly used include a statement of financial hardship, your latest income tax return or proof of exemption, pay stubs or other proof of income, recent bank statements, and receipts for fixed expenses such as rent, loan payments, tuition, and health care costs. Together, these documents show the applicant’s real balance between income and expenses.

If you are unemployed, your work booklet and proof of unemployment insurance or a welfare benefit support the request. When you have dependents, documents showing your family obligations also matter. What counts is that the documentation is consistent with the claim of insufficient resources and reflects your financial situation at the time of the request.

Article 99, paragraph 2, offers an important safeguard: the judge may not deny the request without first giving the party a chance to prove that the requirements are met. In other words, when the judge has doubts, the judge must set a deadline for submitting evidence rather than deny the waiver outright.

This safeguard keeps people who truly need the benefit from being caught off guard by a demand to pay costs they cannot afford, which would defeat the access to justice guaranteed by the Constitution.

The wording is broad. It does not limit the benefit to a specific income bracket. It requires only concrete proof that paying these costs would compromise the support of the applicant or the applicant’s family.

What the Fee Waiver Covers

Article 98, paragraph 1, of the Code of Civil Procedure spells out the scope of the benefit. The waiver covers court fees and costs, postage, publication expenses in the official press, compensation owed to witnesses, and expert fees. Expert fees are often decisive in cases that depend on technical evidence, such as health care claims, accidents, and engineering disputes.

The benefit also covers the attorney’s and expert’s fees owed because you lost the case, the cost of preparing a calculation statement when one is required to begin enforcement, the deposits the law requires in order to file an appeal, and the notary and registry fees for acts needed to carry out or preserve the rights at issue in the case.

One point often causes confusion and deserves extra attention. Receiving the fee waiver does not exempt you from paying the losing party’s costs and fees if you lose the case. Article 98, paragraph 3, provides that the obligations arising from a loss are subject to a suspensive condition on enforceability for five years.

During that period, the winning party may collect those amounts if it proves that your insufficient-resources situation has ended. If five years pass without that showing, the obligation is extinguished. The benefit therefore suspends enforceability, but it does not automatically erase your liability for the losing party’s costs and fees.

Article 98, paragraph 5, also allows a partial waiver, limited to a specific procedural act, or a percentage reduction of expenses. The judge may, for example, allow court costs to be paid in installments when the party’s finances call for a middle ground between full payment and a complete waiver.

The waiver does not relieve a party of procedural fines, such as those imposed for bad-faith litigation. The benefit protects access to justice for those who need it, but it is not a free pass for abusive conduct in the case.

The rule seeks a balance between two values: making sure a lack of money does not prevent anyone from exercising their rights, while also preventing opportunistic use of the benefit by those who could afford to pay for the case.

Understanding this balance is essential so that you know exactly what to expect when you request the waiver and are not caught off guard by future charges.

This framework explains why the way you request the benefit, and the way you defend it against a possible challenge, calls for technical care from your very first filing in the case.

How to Make the Request and What to Do If It Is Challenged

Under Article 99 of the Code of Civil Procedure, you must make the request in the initial complaint, in the answer, in the petition by which a third party enters the case, or in the appeal. You do not need to file a separate lawsuit. The request just has to appear clearly in the filing itself, accompanied, when advisable, by documents showing your financial situation.

If the need for the benefit arises during the case, the party may request it by simple petition, supported whenever possible by proof of the new insufficiency of resources. The waiver may be granted at any time, and the decision ruling on the request must state its reasons.

The opposing party may challenge the waiver. Article 100 provides that the challenge must be raised in the answer, in the reply, or in the appellee’s response brief, depending on when the benefit was granted. The challenger must present evidence that the requirements for the waiver do not exist or no longer exist.

If the waiver is challenged, the beneficiary should strengthen the proof of financial condition by filing updated documents and clarifying any inconsistencies the opposing party points out. As a rule, the burden of proving financial capacity falls on the challenger, but an active response from the beneficiary is decisive in preserving the benefit.

If the request is denied or the challenge is upheld, Article 101 allows an interlocutory appeal (agravo de instrumento) against the ruling. If the issue is resolved only in the final judgment, the proper route is an ordinary appeal. Knowing the correct appeal prevents you from missing the deadline and losing the right to contest the waiver decision.

If the benefit is revoked, the party must pay the expenses it did not advance. Where the waiver was obtained in bad faith, the law authorizes a fine, which underscores the need for honesty in the information you give the court from your first request.

Frequently Asked Questions

Does the fee waiver cover the fees of the attorney the party hires?

No. The waiver covers the expenses of the case, attorney’s fees awarded against the losing party, and the fees of experts and other professionals who assist the court. Contractual fees freely agreed between a client and their attorney remain governed by the contract between them and are not covered by the benefit, unless the parties specifically agree otherwise.

Can a legal entity also receive the benefit?

Yes, but it must meet a higher standard of proof. An individual benefits from a presumption that the claim of insufficient resources is true. A legal entity must prove concretely that it cannot afford the costs of the case, by submitting accounting and financial documents that show it is genuinely unable to pay at that time.

If I lose the case, do I have to pay the costs immediately?

Not immediately. The obligations arising from the loss are subject to a suspensive condition on enforceability for five years. The winning party can collect only if it proves that the beneficiary’s insufficient-resources situation has ended. If that period passes without such proof, the obligation is extinguished and can no longer be enforced.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.