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Last update: 03-08-2007
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Divorce - Portugal

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the legal consequences of a divorce as regards: 3.
a) The personal relations between the spouses: a)
b) The division of property of the spouses: b)
c) The minor children of the spouses: c)
d) The obligation to pay maintenance to the other spouse d)
4. What does “legal separation” mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? Can it be converted into divorce? Is such separation a necessary precondition to obtain a divorce? 6.
7. What does the term “marriage annulment” mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non judicial means for solving issues relating to the divorce without going to court? 10.
11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment? 13.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Portugal? 14.
15. To which court should I turn to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised? [see Note 1] 15.
16. Which is the applicable law in a divorce proceeding between spouses who do not live in Portugal or who are of different nationalities? 16.

 

1. What are the conditions for obtaining a divorce?

In Portugal, a divorce can be obtained by mutual consent or by a contested action.

The first method involves the agreement of both spouses to the dissolution of the marriage and to the payment of maintenance to the spouse in need, the exercise of paternal authority with regard to minor children, the disposal of the marital home and the arrangements which will apply during the proceedings with regard to maintenance, exercise of paternal authority and use of the home.

A contested divorce is applied for in court by one of the spouses against the other and presupposes that a culpable violation of conjugal duties can be invoked in terms such that, given its seriousness or repeated occurrence, the possibility of life together is compromised. In assessing the seriousness of the alleged facts, the court must take account, in particular, of the blame which may be laid on the applicant and the level of education and moral sensibility of the couple.

2. What are the grounds for divorce?

In a divorce by mutual consent, the spouses do not have to give the reason for their application.

A contested divorce may be applied for by one of the spouses if the other violates, under the terms indicated in the previous answer, the conjugal duties of respect (through words or actions which damage the honour of the other spouse, their reputation, public image, self-respect, self-esteem, sensibility or personal susceptibility) , fidelity (by committing adultery, thereby failing to fulfil the duty of exclusive and sincere dedication to the other spouse) , cohabitation (deserting the marital home) , cooperation (failing to fulfil the duty to provide help and support and failing to assume the responsibilities inherent in family life) and assistance (not fulfilling the obligation to provide maintenance and to contribute to the costs inherent in everyday family life).

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However, a spouse may not obtain a divorce:

  1. If he or she has encouraged the other spouse to carry out the act invoked as a ground for the application or has intentionally created conditions favourable to this occurring;
  2. If it is revealed, through his or her subsequent behaviour, particularly by way of express or tacit forgiveness, that he or she does not regard the act carried out as preventing communal life.

The following are further grounds for a contested divorce:

  1. de facto separation for three consecutive years;
  2. de facto separation for one year if the divorce application by one of the spouses is unopposed by the other;
  3. a change in the mental faculties of the other spouse when this has lasted for more than three years and when, because of its seriousness, it compromises the possibility of communal life;
  4. absence, without any news from the absentee, for a period of not less than two years.

It is understood that de facto separation exists for these purposes when there is no communal life between the spouses and one or both of these propose not to re-establish this.

3. What are the legal consequences of a divorce as regards:

a) The personal relations between the spouses:

Divorce dissolves the marriage and has the same effects legally as dissolution on death, apart from the exceptions enshrined in law.

The duties referred to in the answer to the above question therefore cease.

Despite divorce, a spouse who has adopted the surname of the other spouse may retain it, provided that the latter consents or the court gives its authorisation, bearing in mind the reasons stated. The consent of the former spouse may be given through a notarial document, a document drawn up in court (a written record, in proceedings, of the declaration of intent of the party) or a declaration before an official from the registry office. The application for court authorisation to use the surname of the former spouse may be submitted within the divorce proceedings or in separate proceedings, even after the divorce has been decreed.

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b) The division of property of the spouses:

The spouse declared solely or mainly culpable and also the spouse who applies for divorce on the grounds of a change in the mental faculties of the other spouse must compensate for the moral prejudice caused to their spouse by the dissolution of the marriage; the application for compensation must be submitted as part of the divorce proceedings.

The effects of the divorce as regards the property-related relationships between the spouses are backdated to the date when the action was brought.

The property-related effects of the divorce may only be enforced against third parties as from the date when the decree is pronounced.

The spouse declared solely or mainly culpable may not, in the division of property, receive more than they would have received if the marriage had been entered into under the system of community of after-acquired property (system in which the following property is regarded as belonging to each spouse individually: that which each spouse had at the time of the marriage, that which they received after the marriage by way of a succession or gift; and that acquired during the marriage by virtue of a pre-existing individual right. The product of the work of the spouses and the property jointly acquired by them during the marriage are regarded as forming part of the community of property).

The spouse declared solely or mainly culpable loses all the benefits received or to be received from the other spouse or a third party with a view to the marriage or in consideration of the state of being married, whether this stipulation is prior to or after the celebration of the marriage. The innocent spouse or the spouse who is not mainly culpable retains all the benefits received or to be received from the other spouse or a third party even if these have been stipulated with a reciprocity clause. This spouse may waive these benefits through a unilateral declaration of intent but, if there are children from the marriage, this waiver is permitted only in favour of these children.

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The court may rent the marital home to either of the spouses, at their request, whether it is jointly owned or owned by the other spouse, taking into particular account the needs of each spouse and the interests of the children of the marriage.

This rental is subject to the rules on the renting-out of accommodation but the court may define the conditions of the agreement, having heard the spouses, and may terminate the rental, at the request of the landlord, when supervening circumstances justify this.

c) The minor children of the spouses:

In the case of divorce, legal separation, declaration of nullity or marriage annulment, the arrangements for the children, the maintenance due to the latter and the method of paying maintenance will be governed by an agreement between the parents, subject to approval by the court (or the Public Registrar in proceedings for separation and divorce by mutual consent).

In the absence of an agreement, the court will take a decision in accordance with the interests of the minor, including that of maintaining a close relationship with the non-resident parent. Custody of the minor may be given to either parent, a third person or a re-education or assistance establishment.

For further information, please see on this site: “Parental responsibility - Portugal”.

d) The obligation to pay maintenance to the other spouse

In the event of legal separation, the right to maintenance is retained.

Divorce also does not automatically extinguish this right.

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The following are entitled to maintenance in the event of divorce:

  1. the spouse not regarded as culpable or, when both are culpable, the spouse not regarded as mainly culpable in the divorce decree if the latter has been based on the culpable violation of the conjugal duties (in cases where the violation, on account of its seriousness or repetition, compromises the possibility of communal life) , in de facto separation for three consecutive years or in de facto separation for one year if the application for divorce by one spouse is unopposed by the other;
  2. the respondent spouse, if the divorce has been decreed on the basis of a serious change in the mental faculties of the other spouse in terms which compromise the possibility of communal life and lasting for more than three years;
  3. either of the spouses if the divorce has been decreed by mutual consent or if, in the case of a contested divorce, both are regarded as equally culpable.

Exceptionally and for reasons of fairness, the court may award maintenance to a spouse who would not be entitled to it, considering in particular the length of the marriage and the contribution made by this spouse towards the family finances.

In assessing the amount of maintenance, the court must take account of the age and state of health of the spouses, their professional qualifications and employment possibilities, the time which they will possibly have to spend on bringing up their joint children, their earnings and income and, in general, all circumstances affecting the needs of the spouse receiving the maintenance and the possibilities of the person paying the maintenance.

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These rules apply if a legal separation has been decreed.

When a marriage has been declared null or has been annulled, the spouse in good faith retains the right to maintenance after the decision becomes final (after which time the decision may not be appealed) or the respective decision is recorded (entry in the marriage register of the text indicating this fact).

The right to maintenance ceases if the maintenance creditor remarries or becomes unworthy of this benefit on account of their moral behaviour.

4. What does “legal separation” mean in practical terms?

Legal separation does not dissolve the marriage but extinguishes the duties of cohabitation and assistance, without prejudice to the right to maintenance.

With regard to property, separation produces the effects which the dissolution of the marriage would produce.

Legal separation ends with the reconciliation of the spouses or the dissolution of the marriage.

The spouses may, at any time, re-establish communal life and the full exercise of their conjugal rights and duties. The reconciliation may be recorded in a document as part of the separation proceedings (written text entered in the case-file by a court clerk, following a declaration of intent by the parties) or in a public document and is subject to court approval, with the decision having to be registered on the initiative of the court. When the legal separation is handled by the civil registry office, the reconciliation is recorded in a document as part of the separation proceedings and is subject to approval by the respective registrar, with the decision having to be registered on the initiative of the office. The effects of reconciliation apply with effect from the approval of this decision.

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Two years after the decree of legal separation, by contested action or by mutual consent, becomes final, without the spouses having been reconciled, either of them may apply for the separation to be converted into a divorce. If the conversion is applied for by both spouses, the period specified does not need to be observed. The conversion may be applied for by either spouse, regardless of that period, if the other commits adultery after the separation. The decision converting a separation into divorce cannot alter what has been decided about the culpability of the spouses in the separation proceedings.

The provisions on divorce are applicable to legal separation, with the necessary adaptations being made.

5. What are the conditions for legal separation?

The conditions for legal separation are the same as those for divorce by contested action.

6. What are the legal consequences of legal separation? Can it be converted into divorce? Is such separation a necessary precondition to obtain a divorce?

As indicated in the answer to the previous question, legal separation extinguishes the duties of cohabitation and assistance, without prejudice to the right to maintenance. With regard to property, it produces the effects which the dissolution of the marriage would produce. Each spouse may retain the surname of the other which they have adopted.

Legal separation may be converted into divorce, although this is not a precondition for divorce or a stage in divorce proceedings.

Legal separation ends with the reconciliation of the spouses or the dissolution of the marriage.

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7. What does the term “marriage annulment” mean in practice?

“Marriage annulment” means terminating the legal effects of the marriage by invoking a significant defect affecting the marriage.

8. What are the conditions for marriage annulment?

Marriages entered into in the following circumstances may be annulled:

  1. by a person below the age of sixteen;
  2. by persons known to be insane (even during their lucid periods) ;
  3. by a person who is prohibited or incompetent on account of a mental disorder;
  4. by a person bound by a previous undissolved marriage, even if the respective entry has not been made in the register of births, marriages and deaths;
  5. by persons connected by a degree of consanguinity in the direct line (situation which occurs when one of the relations descends from the other) ;
  6. by brothers and sisters with each other or by fathers-in-law (mothers-in-law) with sons-in-law (daughters-in-law).

Marriages celebrated in the following circumstances may also be annulled:

  1. by one betrothed party convicted of being the perpetrator of or accomplice in the attempt, even if not successful, to murder the spouse of the other betrothed party;
  2. where there is a lack of consent or consent invalidated by an error or by duress on the part of one or both of the betrothed parties;
  3. without the presence of witnesses, when required by law.

9. What are the legal consequences of marriage annulment?

When the marriage is annulled, the duties of cohabitation, faithfulness, respect, cooperation and assistance cease.

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The legal situation of those initially bound by marriage must be restored, as far as possible, to that existing before the invalidated act was carried out.

However, the annulment of the marriage may not be invoked for any judicial or non-judicial purpose when this is not recognised by a judgment in an action specially brought for this purpose.

10. Are there alternative non judicial means for solving issues relating to the divorce without going to court?

Yes. Divorce by mutual consent can be applied for at the civil registry office, except in situations arising from an agreement obtained within the proceedings for a contested divorce.

11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?

Separation and divorce by mutual consent are applied for at the civil registry office for the area in which either of the spouses is resident or at another office chosen and expressly designated by both spouses.

Other applications are submitted to the Family Proceedings Court or, if no such court exists, to the district court having territorial jurisdiction. This territorial jurisdiction is defined according to the domicile or residence of the applicant (the person bringing the action).

A contested divorce involves an application known as an initial application, which sets out the facts deemed to point to the need for the dissolution of the marriage. The evidence may be submitted immediately. The marriage certificate and the birth certificates of joint children must accompany this application.

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Representation by a barrister is compulsory.

Having received the initial application, the judge fixes a date for an attempted reconciliation of the spouses, at which the following may occur:

  1. reconciliation of the spouses (in this case the proceedings lapse) ;
  2. conversion of the contested divorce into a divorce by mutual consent (the relevant proceedings applying) , and
  3. lack of any reconciliation (the proceedings continue as before – even so, the judge will try to get the spouses to agree about maintenance, the exercise of paternal authority over the children and the use of the marital home during the proceedings).

If the divorce continues to be contested, the spouse against whom the proceedings have been brought has a period of thirty days in which to submit their written response.

These proceedings will involve a trial in which the evidence submitted will be brought together and which will end, at first instance, with the judge’s ruling.

Proceedings for divorce by mutual consent are brought by submitting to the civil registry office an application signed by the spouses or their representatives. The application is lodged, together with a certificate containing a full copy of the record of marriage, a detailed list of the communal property indicating the respective values, a certificate of the court judgment ruling on the exercise of paternal authority with regard to any minor children, an agreement on the payment of maintenance to the spouse in need of maintenance, a certificate of any prenuptial agreement, and an agreement on the disposal of the marital home. Unless otherwise specified in the documents submitted, it is understood that the agreements apply both to the period of the proceedings and to the subsequent period.

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These documents will be supplemented by an agreement on the exercise of paternal authority when there are minor children and when this has not been previously ruled on by the courts.

Having received the application, the registrar invites the spouses to a meeting at which he tries to bring about a reconciliation. If the spouses still intend to divorce, and having checked the respective prerequisites are met, the divorce is decreed and subsequently registered.

When an agreement is submitted on the exercise of paternal authority over minor children, the proceedings are referred to the public prosecution service at the court of first instance having jurisdiction in the matter within the judicial district in which the civil registry office is situated, before the date of the meeting is fixed, so that this service can given an opinion on the agreement within 30 days. If the public prosecution service considers that the agreement does not duly protect the interests of the minors, the applicants may alter this as required or submit a new agreement. In the latter case, this will be resubmitted to the public prosecution service. If the latter considers that the agreement duly protects the interests of the minors or if the spouses have altered the agreement as indicated by the public prosecution service, the divorce will be decreed. In cases in which the applicants do not agree with the alterations indicated by the public prosecution service and still intend to divorce, the proceedings are referred to the district court in which the civil registry office is situated.

In proceedings for marriage annulment, it is compulsory to instruct a barrister.

This action is brought through an application referred to as an initial application which, in the form of pleadings, identifies the parties, describes the relevant facts and concludes with a request.

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The persons legally entitled to bring such an action vary according to the grounds of the claim.

The spouses or any of their relations in the direct line or up to the fourth degree in the collateral line, the heirs and adoptive parents of the spouses and the public prosecution service have the legal right to bring an action for annulment based on the celebration of marriage by people under the age of sixteen, those known to be insane, those prohibited or incompetent because of a mental disorder, those with a prior undissolved marriage, blood relations in the direct line, blood relations up to the second degree in the collateral line, those related by marriage in the direct line or where one of the betrothed has previously been convicted. In addition, the guardian or trustee in the case of minority, prohibition or incompetence due to a mental disorder and the first spouse of the offender in the case of bigamy may also bring or continue an action.

Annulment due to misrepresentation may be applied for by the spouses themselves or by any persons prejudiced by the marriage. In other cases involving a lack of consent, annulment proceedings may be brought only by the spouse whose consent is lacking. However, the latter’s relations by marriage in the direct line and their heirs or adoptive parents may continue the action if the applicant dies during the proceedings.

Annulment proceedings based on defects in consent may be brought only by the spouse who was the victim of the error or duress but their relations by marriage in the direct line and their heirs or adoptive parents may continue the action if the applicant dies during the proceedings.

Annulment proceedings based on a lack of witnesses may be brought only by the public prosecution service.

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Annulment proceedings based on the celebration of marriage by people under the age of sixteen, those known to be insane, those prohibited or incompetent because of a mental disorder, those with a previous undissolved marriage, blood relations in the direct line, blood relations up to the second degree in the collateral line, those related by marriage in the direct line or where one of the betrothed has previously been convicted must be brought:

  1. in cases of minority, prohibition or incompetence due to a mental disorder or known insanity, when brought by the incompetent person, within six months of them having reached majority, their prohibition or incompetence having been removed or their insanity having ceased; when brought by another person within three years of the celebration of the marriage, but never after the attainment of majority, the removal of the incapacity or the cessation of the insanity;
  2. in the case of conviction for the murder of the spouse of one of the betrothed, within three years of the celebration of the marriage;
  3. in other cases, within six months of the dissolution of the marriage. Only the public prosecution service may bring the action before the marriage is dissolved. Annulment proceedings based on the existence of a previous undissolved marriage may not be brought or continued when proceedings are pending to declare the nullity or annulment of the first marriage of a bigamist.

Annulment proceedings based on a lack of consent of one or both the betrothed may be brought only within three years of the celebration of the marriage or, if the applicant was unaware of this, within six months of the moment when they become aware of this.

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Annulment proceedings based on defects in consent will lapse if not brought within six months of the cessation of the defect.

Annulment proceedings based on a lack of witnesses may be brought only within one year of the celebration of the marriage.

The marriage certificate and possibly (if age is the ground for the application) the birth certificate of the betrothed in question must accompany the initial application.

In such proceedings the opposing party always has the option to make representations. During this action, the facts to be assessed in the trial are established and an investigation stage takes place during which the evidence to be produced is presented, with this being served on the opposing party. During these proceedings, a trial is held after which the final judgment is delivered.

12. Can I obtain legal aid to cover the costs of the procedure?

Yes, the legal aid scheme applies in all courts, whatever the form of the proceedings.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

Yes. In these actions it is always possible to appeal up to the Supreme Court of Justice.

14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State country recognised in Portugal?

If the decision in question was delivered in a Member State of the European Union other than Denmark, it is recognised in the other Member States without the need for any proceedings. In particular, no proceedings are required in order to update the registers of births, marriages and deaths of a Member State following a divorce, legal separation or marriage annulment decision delivered in another Member State and against which there is no appeal under the law of that State. If the recognition of a decision is invoked incidentally before a court in a Member State, the latter will have jurisdiction to examine the matter.

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Any interested party may apply for recognition of the decision.

The party applying for a declaration that a decision is enforceable must submit: a) a copy of this decision which satisfies the necessary conditions of authenticity, and b) a certificate issued in accordance with the form specified in Regulation (EC) No 1347/2000 of 29 May 2000 (Annex IV).

If the decision was delivered in Denmark, the special process for review of a foreign judgment is applied.

In this process, the document containing the decision to be reviewed is submitted with the application, and the opposing party notified has 15 days in which to submit any response. The applicant may respond within 10 days of the notice of submission of that response. Once the parties have submitted all their pleadings and the steps have been taken that the "review judge" (relator) regards as essential, all the documents are provided to the parties and the public prosecution service, each for 15 days.

In order for the judgment to be confirmed:

  1. there must be no doubts as to the authenticity of the document recording the judgment or as to the intelligence of the decision;
  2. the judgment must have become final according to the law of the country in which it was delivered;
  3. the judgment must come from a foreign court whose jurisdiction has not been invoked in breach of the law and must not involve a matter falling within the exclusive jurisdiction of the Portuguese courts;
  4. it must not be possible to invoke the defence of lis pendens or res judicata based on a case in a Portuguese court, except where it was the foreign court which prevented the initiation of proceedings;
  5. the respondent must have been duly served in respect of the action, under the law of the country of the court of origin, and the principles of the right of defence and equal protection of the parties must have been observed in the process;
  6. it must not involve a decision whose recognition leads to a result which is manifestly incompatible with the principles of the public international order of Portugal.

15. To which court should I turn to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised? [see Note 1]

In the Member States of the European Union, except for Denmark, if the party concerned decides to apply for recognition of a decree of divorce, legal separation or marriage annulment, the application is submitted to the Family Proceedings Court or, in the areas not covered by it, to the district court.

The court having territorial jurisdiction is determined by the internal law of the Member State in which the application for recognition has been brought.

If the decree was pronounced in Denmark, the appeal court in the judicial district in which the person against whom it is intended to enforce the judgment is resident has jurisdiction for the review (Coimbra, Évora, Guimarães, Lisbon and Oporto).

16. Which is the applicable law in a divorce proceeding between spouses who do not live in Portugal or who are of different nationalities?

In divorce and legal separation, the common national law of the spouses is applicable. If they are not of the same nationality, the law of their joint habitual residence is applicable and, in the absence of this, the law of the country with which their family life is most closely associated is applicable.

If, however, during the marriage, there is a change in the applicable law, only a fact relevant at the time of its occurrence can provide grounds for the separation or divorce.

Further information

Further information may be obtained from the following websites:

Notes

[1] This appears to be identical to question 14 and appears to be the opposite of the intended meaning. The original English question is about opposition to recognition.

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Last update: 03-08-2007

 
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