FAMILY LAW IN PORTUGAL.
Sources of family law
CONSTITUTIONAL FAMILY LAW PRINCIPLES
The Constitution of the Portuguese Republic contains the following fundamental family law principles:
an equal right to constitute a family;
an equal right to contract a marriage;
the primary right of the family in educational matters;
equal capacity of husband and wife and equal capacity of both parents towards their children;
the protection of paternity and maternity; and
non-discrimination between marital and non-marital children.
Family law in Portugal is not based on case law but on codified rules laid down in Book IV of the ‘Codigo Civil’ (‘CC’) (civil code).
Rules relating to practice and procedure are found in ‘Codigo de Processo Civil’ (‘CPC’) (civil procedure rules); the ‘Organizacao Tutelar de Menores’ (DL 314/78) (‘OTM’) (‘procedural rules for children’s cases); and the ‘Codigo de Registo Civil’ (‘CRC’) (registration rules).
Court decisions are important, but are not binding on later courts.
There are special family courts (“Tribunal de Familia’, ‘Tribunal de Menores’ or ‘Tribunal de Familia e de Menores’) in the most important jurisdictional districts (‘comarcas’). Otherwise family cases are heard in the ordinary courts. Unlike the ordinary courts, family courts are specialized in family cases and have the assistance of social workers and family advisers.
Some family cases (e.g., divorce), go up to the higher courts. Appeals are made to the ‘Relacao’ courts situated in Lisbon, Porto, Coimbra, Evora, Faro and Guimaraes, and then to the Supreme Court of Justice of Lisbon.
In family cases, proceedings are heard in camera, including divorce and ancillary matters.
Lawyers (‘Advogados’) assist the family disputes, many cases are negotiated out of the court. A lawyer doesn’t represent parties in amicable divorces and children’s cases. Amicable divorces are settled in the registration offices (‘Conservatorias do Registo Civil’). Clients must be represented by the lawyers in case of the non-amicable cases. In Portugal, there is no association of the family lawyers.
Important functions (e.g., drafting premarital property agreements) are performed by notaries (civil servants), but the notaries cannot assist in family disputes, in court.
A party who has insufficient income may be entitled to legal aid in family disputes (e.g., divorce, applications for injunctions, orders relating to children and orders for maintenance or alimony), so that he or she will not have to pay the court fees (‘custas judicias’), and in some cases can be assisted by lawyers appointed by the court and paid by the state. An application for the legal aid is made to the court that is hearing or will be hearing the case. Gabinete de Consulta Juridica avails the information about free legal advice.
Depending on their means, foreigners who live in Portugal for more than one year can qualify for legal aid. Those foreigners who do not live in Portugal can also qualify for the legal aid, provided reciprocal arrangements for Portuguese citizens exist in the country of the foreigner. Portugal is a party to the European agreement on the Transmission of Applications for legal aid of 1977.
‘Domicile’ is considered to be the place of habitual residence, according to the Portuguese Civil Code. In respect of relations connected with a profession, it is also possible to have a professional domicile (i.e., place where a person works). In case of minors, domicile is generally that of the family or of the parents with whom they live. There is an existence of other rules for civil or military servants and diplomatic agents.
THE CREATION OF VALID MARRIAGE
According to civil and Roman Catholic formalities, marriage is ceased to be the only ones recognised by the state and able to produce legal effects, since 2001. Roman Catholic marriages are celebrated under a set of special rules, but today religious marriages are celebrated under recognised religious confession.
Capacity to marry
As laid down by the civil law, to contract a valid marriage (civil, Catholic or of another religion), the parties must have capacity to marry. There must be no impediment to the marriage, to have capacity to marriage. The registration office (‘Conservatoria do Registo Civil’) carries out the official investigation of capacity for civil and religious marriages. If there are no impediments to the marriage, a certificate is issued by the registration officer (‘conservador do registo civil’).
In order to contract a valid marriage, the parties must:
be over the age of 16. A marriage is void if either of the parties is under the age of 16. If a party (or both) is over 16 but under 18, he or she must obtain permission to marry from his or her parents and/or a person with parental responsibility. If consent is withheld, the minor can ask the court to dispense with consent. The marriage of a minor (i.e., over 16 but under 18) without parental consent or court dispensation is valid, but there are economic sanctions until majority.
not suffer from serious mental disease. Even when there are lucid periods, this impediment makes the marriage void.
not be already married. A previous marriage (civil, Catholic or of another religion), if not dissolved, is an impediment, even if celebrated abroad and even if unregistered. This impediment makes a marriage void and the parties liable to a criminal prosecution for bigamy.
not be within the prohibited degrees of relationship. Marriage between certain persons related by blood or other family ties is forbidden. A man cannot marry his mother, grandmother, daughter, granddaughter, sister, mother-in-law, stepmother or stepdaughter; the same rules apply to a woman in respect of her equivalent male relations. A marriage between such persons is void. Being within the prohibited degrees of relationship by virtue of a ‘full adoption’ is also an impediment to marriage in the same way as other blood relations.
not have been condemned for homicide against the previous spouse of the other party to the marriage. This impediment, which is influenced by the equivalent canonical impediment, renders the marriage void.
not marry again before a period of 300 days (for the woman) or 180 days (for the man) has passed after a previous dissolution of marriage. This impediment specifically aims to prevent a woman entering into a marriage when she may be pregnant by a previous husband. Failure to comply with this requirement does not render the marriage void but there are economic sanctions (e.g., losing property left in the will of the previous spouse).
not be related by ‘restricted’ adoption. ‘Restricted’ adoption, which has fewer legal effects than ‘full’ adoption, is an impediment to marriage between adoptive father/mother and adoptive daughter/son or between adoptive brothers and sisters. It does not render a marriage void, but there may be economic sanctions.
not be within the relationship of uncle/niece of aunt/nephew. This impediment does not make the marriage void but there may be economic sanctions, although a dispensation can be granted by the court where justifiable reason exists.
‘Non-existent’ marriages (‘casamento inexistence)
A marriage is considered not to exist if:
it is celebrated before a person without public authority to marry (with the exception of urgent marriages);
the declaration of consent of one or both spouses was absent; or
it is celebrated between two persons of the same sex.
Other grounds for void marriage
A marriage is void if:
either party was unable to understand the meaning of the marriage act (e.g., by being under the influence of alcohol or drugs);
either party was mistaken about the other spouse or his or her attributes (e.g., nationality, physical defects, previous convictions or other important circumstances);
consent to the marriage was obtained by physical or moral coercion; or
the marriage was a ‘sham’ (e.g., one entered into to acquire Portuguese nationality), although this is often difficult to prove.
Nullity of marriage
Canonical courts can declare the nullity of a Catholic marriage, whose decrees are fully accepted by the civil courts and produce civil effects. Most couples prefer to petition for divorce as they are faster and cheaper, civil nullity petitions are rare. Nullity petitions in respect of Catholic marriages are, however, more common as remarriage in the Catholic Church is only permitted if a previous marriage has been declared null and void by the canonical courts.
Formalities are compiled in the civil, Catholic or of another religion. Notice of the marriage must be given by the parties to the local registration office (‘Conservatoria do Registo Civil’) in the area where at least one of them has resided for the previous 30 days. A certificate of capacity is issued by the registration office, after public display of the notice and official investigation of the impediments.
In the presence of two witnesses, a civil marriage is usually solemnised. The marriage can take place at any place, even a private home, if the parties wish so. A religious marriage is solemnised in church according to the religious rites or any other place authorised by the Church. A marriage must be registered in order to produce civil effects.
Where a party is near death or the woman is about to give birth, the marriage can be celebrated before official investigation of the impediments has taken place. An urgent marriage can be celebrated without the presence of a priest or registration officer but in other cases, certain simple formalities must be observed. The officer investigation of the impediments must take place in order to register the marriage, after the marriage and the provisional registration.
Rights of foreigners to marry in Portugal
The preliminary formalities may differ but there are no residence requirements for foreigners to marry in Portugal.
The investigation of capacity is organised by the local registration office (‘Conservatoria do Registo Civil’).
The ceremony can take place in Portugal, if the parties have their residence abroad. But all necessary documents must be organized in the country of the foreigner’s own residence.
According to their own national law, two foreigners can marry in their own consulate, provided their countries of origin would allow Portuguese citizens to marry in the Portuguese consulate in those countries.
THE LEGAL CONSEQUENCES OF MARRIAGE
Marriage creates a civil status from which certain rights and duties flow.
Portuguese citizenship is acquired by:
a child born in Portugal, if his or her mother or father, although a foreigner, lives in Portugal for at least six years (with certain exceptions, e.g., for diplomats);
a child born in Portugal, if he or she is not entitled to another nationality;
a child of a Portuguese mother or father;
a child fully adopted (‘adopcao plena’) by a Portuguese citizen;
a person who marries a Portuguese citizen.
In cases (i) and (v), Portuguese nationality can only be acquired by an application, which must be made to the Portuguese consulate or, if the person interested already lives in Portugal, to the local registration service.
Personal rights and obligations
Obligations created by the marriage are those of respect, fidelity, living together, co-operation and assistance.
Property rights on marriage
Matrimonial property rights depend on whether or not the parties have made a premarital property agreement which must be made before a notary. Property rights are laid down by the law, if they have not. In certain circumstances there is a mandatory separation of property, though, the legal system of property ownership is essentially one of community of matrimonial property.
Property system cannot be changed, once the parties are married, even if both spouses agree to subject to a different system. To prevent the risk of undue influence and duress and the weaker spouse being placed in a disadvantageous position, this rule is made.
To establish which property system is to apply to the marriage, spouses may make a premarital property agreement. Spouses can choose to be subject to a system of community property, a system of separation of property or a system created by themselves within the limits of law.
If the parties marry without having made a valid premarital property agreement is declared null and void, then the system which governs property ownership is as follows:
assets owned by each spouse separately before marriage remain separately owned;
inheritances remain the property of the spouse inheriting them;
assets purchased during marriage by both spouses or one spouse are considered common property; and
income (from work or investment) is considered common property.
MANDATORY SEPARATION OF PROPERTY
Marriage is considered to be celebrated under a mandatory system of separate property when:
one or both spouses is aged sixty years or more at the time of the marriage;
the marriage has been celebrated without official investigation of the impediments, i.e., without a certificate of capacity issued by the public registration office.
Gifts between husband and wife are void, in case of mandatory separation of property.
Spouses cannot contract between themselves to buy or sell property, to prevent spouses obtaining by contract what they cannot achieve under the applicable property system (i.e., because changing the property system is forbidden by law). Gifts are in principle valid, but can be revoked at any time by the donor.
Administration of property
Both spouses are responsible for the administration of common property, but can be written or oral mandate give the power to administer common property to one of them alone.
Consent to sell property
With the consent of both spouses only, common property must be sold. To sell other spouse’s assets, one needs the consent of other spouse, unless a premarital agreement to own property separately is already there.
It’s the duty of both spouses to jointly responsible for household expenses and common needs of children and their upbringing. These provisions may be fulfilled either by providing income or through housework.
Financial provision during marriage
Other spouse can apply to the court for financial provisions for him or herself and/or the children, if either spouse fails to contribute financially. When a spouse deserts the matrimonial home, financial provisions are often sought.
Children: parental power (‘poder paternal’)
Married parents have joint ‘parental power’ for the upbringing of their children, which may continue after the children reaches majority (age 18) if the child attends university or another educational institution.
Author: Navin Kumar Jaggi