Portugal
Sources of Law
The Constitution of the Portuguese Republic contains fundamental family law principles.
Family law is set out on codified rules laid down in Book IV of the ‘Codigo Civil’ ‘Civil Code’
Rules relating to practice and procedure are found in the ‘Codigo de Processo Civil’ (Civil Procedure Rules)
‘Organizacao Tutelar de Menores’ (procedural rules for children’s cases)
‘Codigo de Registo Civil’ (registration rules)
Jurisdiction
Brussels II applies.
Domicile and Habitual Residence
According to the Portugese Civil Code, ‘domicile’ is considered to be the place of habitual residence.
A person living in difference places can have a domicile in any of those places.
Conflict of Law/Applicable Law to be Applied
Common nationality
Common habitual residence
Closest connection
Pre-Nuptial Agreements
Enforceable. There are some limitations in relation to maintenance.
The parties can choose the legal regime governing their marriage.
Divorce
Mutual consent, fault, de facto separation- separation of 1 year if the parties agree. A separation of 5 years is required in the absence of agreement.
Finances/Capital/Property
Community of property regime.
Capital split 50/50 between the parties upon divorce.
Pre-marital assets and inherited wealth are excluded
Finances/Maintenance
Based on the needs of the receiving spouse. Factors taken into consideration include housing, clothing, health care, age qualifications, ability to work and time spent raising children.
There is not fixed term as to maintenance. Maintenance can be varied up or down by the Court.
In divorce the right to spousal maintenance depends on whether the divorce is fault based.
Child Maintenance
Both parents have a duty to maintain the child
Cohabitants
Since 1999 some personal and property rights have been established in order to protect persons who have cohabited for at least two years.
Community of Property does not apply to cohabitants. If cohabitation ceases during the life of the cohabitants, no rights are recognised; each party keeps his or her own assets.
Cohabitants can take advantage of the tax system established for married persons.
On the death of a cohabitant, the surviving cohabitant may enjoy some legal protection.
Civil Partnership/Gay Marriage
With thanks to John Camacho
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