In Portuguese law, the term “maintenance” covers everything which is essential for the sustenance, housing and clothing of a person. Maintenance also includes the education and training of the person maintained if this is a child under age.
The following are required to pay maintenance in the indicated order:
Parents must always maintain their children provided that the latter are not in a position to subsist by their own means.
Parents are not obliged to support children and to bear the costs of their safety, health and education where the latter are in a position to support these costs from the product of their own work or other income.
If, on reaching majority or ceasing to be subject to parental control, the child has not completed his or her vocational training, the maintenance obligation will remain if it is reasonable to require the parents to fulfil this obligation and for the time normally required for this training to be completed.
For further information, please see the “Parental Responsibility” page.
While the marriage partnership is in force, spouses are obliged to maintain each other.
This obligation may remain after divorce, legal separation or marriage annulment.
For further information, see the “Divorce - Portugal” theme on this website.
If one of the spouses dies, the widow or widower is entitled to be maintained from the estate of the deceased. In this case, the heirs or people to whom specific property has been left in proportion to the respective value, are obliged to pay maintenance. The right to maintenance ceases if the person maintained remarries or becomes unworthy of this benefit on account of their moral behaviour.
With regard to common law marriages, Portuguese law provides that anyone who had been living with an unmarried or legally separated person at the time of their death for more than two years under conditions similar to those of spouses is entitled to apply for maintenance from the estate of the deceased if this cannot be obtained through the rule successively obliging the spouse or former spouse, descendants, ascendants and brothers and sisters to pay maintenance. This right lapses if it is not exercised within two years of the date of death of the person to whom the succession relates.
Adoptees or their descendants are obliged to pay maintenance to the adoptive parent in the absence of a spouse, descendants or ascendants who are in a position to meet this obligation.
Maintenance obligations may also result from legal acts.
As a general rule, a child may benefit from maintenance until his or her majority, which is reached at 18 years of age. However, if, on reaching this age, the child has still not completed his or her vocational training, the maintenance obligation will remain if it is reasonable to require the parents to fulfil this obligation and for the time normally required for the training to be completed.
The obligation also ceases if the child, although under 18, is in a position to support himself or herself from the product of his or her own work or other income. A minor of 16 or over may legally carry out paid work or a profession.
As a rule, Portuguese law is applicable to nationals and residents in Portugal.
Family relationships are regulated by the law applicable to the respective individuals, i.e. according to their nationality.
Relationships between spouses are regulated by common national law. If the spouses are not of the same nationality, the law of their joint habitual residence is applicable or, failing that, the law of the country with which their family life is most closely associated.
Relationships between parents and children are regulated by the common national law of the parents or, failing that, by the law of their joint habitual residence. If the parents habitually live in different countries, the law applicable to the child is applicable. If filiation is established only with regard to one of the parents, the personal law of the latter applies. If one of the parents is deceased, the personal law of the surviving parent is applicable.
The answer given to the previous question is valid with regard to this question.
The reference made in the provisions on conflict of laws to any system of foreign law only allows, in the absence of provisions to the contrary, the application of the internal law of that system of law.
The jurisdiction granted to a system of law involves only those laws which, owing to their content and the function which they have in that system, form the rules for the institution in question.
If, however, the private international law of the system of foreign law referred to by the Portuguese provisions on conflict of laws refers to another system of law and this is regarded as having jurisdiction to regulate the case, it is the internal law of this system of law which must be applied. This will not be the case if the system of law referred to by the Portuguese provisions on conflict of laws is the law applicable to the person and the person concerned habitually lives in Portugal or in a country whose provisions on conflict of laws regard the internal law of the country of his or her nationality as having jurisdiction. In this respect, only cases involving property-related relationships between spouses, paternal authority, relationships between an adoptive parent and an adoptee, and succession due to death are subject to the said rule if the system of national law indicated by the provisions on conflict of laws refers to the system of law on the location of the immovable property and if this system of law is regarded as having jurisdiction.
If the private international law of the system of law designated by the provisions on conflict of laws refers to Portuguese internal law, it is the latter which is applicable.
However, when a personal status issue is involved, Portuguese law is applicable only if the person concerned has their habitual residence in Portugal or if the system of law of the country of residence regards Portuguese internal law as having equal jurisdiction.
Referral to the law of a third country or referral to Portuguese law ceases when its application results in the invalidity or inefficiency of a legal act which would be valid or efficient under the rule according to which the reference made by the provisions on conflict of laws to any system of foreign law only allows, in the absence of provisions to the contrary, the application of the internal law of that system of law or the illegitimacy of a state which would otherwise be legitimate. Referral to the law of a third country or referral to Portuguese law also ceases if the system of foreign law has been designated by the persons concerned in the cases in which such designation is permitted.
When, owing to the nationality of a particular person, the system of law of a country in which different local systems of law coexist has jurisdiction, it is the internal law of that country which determines in each case the applicable system.
In the absence of specific rules, the private international law of this same country will be used and, if this is not sufficient, the system of law of the person’s habitual residence will be regarded as the law applicable to them.
If the system of law which has jurisdiction constitutes a territorially unitary legal order but different systems of law for different categories of people apply there, the provisions of that system of law on the provisions on conflict of laws shall always be observed.
In applying the provisions on conflict of laws, any de facto or de jure situations created with the fraudulent intention of avoiding the applicability of the system of law which, under other circumstances, would have jurisdiction are irrelevant.
The provisions of the system of foreign law indicated by the provisions on conflict of laws are not applicable when such application violates the fundamental principles of the international public order of the Portuguese State. In this case, the most appropriate rules of the system of foreign law which has jurisdiction or, alternatively, the rules of Portuguese internal law are applicable.
The foreign law is interpreted within the system to which it belongs and in accordance with the rules of interpretation established there. If it is impossible to ascertain the content of the applicable foreign law, reference will be made to the law which in the alternative has jurisdiction. The same procedure must be adopted whenever it is impossible to determine the de facto or de jure elements on which the designation of the applicable law depends.
To obtain a maintenance allowance, the person concerned may use the courts, enforcing his or her rights in the competent court, or engage in negotiation and conclude a legal act.
With regard to maintenance obligations based on legal acts, the provisions of the maintenance obligation assessed by the courts are applicable with the necessary adaptations, provided that these are not contrary to the stated intent or to the special provisions of the law.
If the person required to pay maintenance does not voluntarily do so, the maintenance creditor, in order to enforce his or her right, will have to bring a legal action.
With regard to maintenance for children who have reached their majority or are no longer under parental control, the application may be submitted to the court or to the civil registry for the area in which the applicant is resident (in this case, the intervention of the registrar is limited to situations in which the respondent does not oppose the application and the parties can reach agreement).
If the maintenance is intended for a child under age, the public prosecution service has the capacity to bring the action before the competent court if the case is submitted to it. The need to assess or vary the maintenance may be notified to the public prosecutor by any person. The public prosecution service has offices in all the courts and its prosecutors can provide legal information to anyone asking for such information.
In addition to the public prosecution service, assessment of the maintenance due to a child under age or variation of the maintenance assessed previously may be requested by the child’s legal representative, their guardian or the director of the educational or care establishment to which they have been entrusted.
In Portugal the Family Proceedings Courts have jurisdiction to assess the maintenance due to children under age and to children who, having reached their majority or being no longer under parental control, have not completed their vocational training. They also have jurisdiction to enforce maintenance. In the geographical areas not covered by them, it is the district courts that have jurisdiction.
In territorial terms, the court competent for the place in which the minor is resident at the time the proceedings are started has jurisdiction to rule on these actions. If this residence is unknown, the court competent for the place of residence of the holders of paternal authority has jurisdiction. If the holders of paternal authority are resident in different places, the court competent for the place of residence of the person to whom custody of the minor has been entrusted or, in the case of joint custody, the person with whom the minor lives has jurisdiction. If any of the proceedings relate to two or more minors who are children of the same parents and resident in different districts, the court competent for the place of residence of the greatest number of such minors has jurisdiction. All other things being equal, the court in which the maintenance was requested in the first instance has jurisdiction. If, when the proceedings are started, the minor does not live in Portugal, the court competent for the place of residence of the applicant or respondent has jurisdiction. If the latter also lives abroad and the Portuguese court has jurisdiction internationally, the Lisbon court hears the case.
Actions to assess and enforce maintenance between spouses and former spouses are also heard in the Family Proceedings Courts and, in areas not covered by these, in the district courts.
With regard to other maintenance applications, the district courts have jurisdiction.
With regard to actions to assess the maintenance due to minors, the instruction of a lawyer is not necessary as the intervention of the court may be requested directly.
The applicant may submit, by his or her own means, an application which briefly sets out the facts resulting in the need to assess maintenance or vary the maintenance assessed previously and the elements to be taken into account in determining the amount of maintenance. This is a simple application which does not need to be set out in the form of pleadings, in which the parties are identified, the facts described and the evidence presented (particularly the list of witnesses).
The application must be accompanied by a certificate issued by the registry office which proves the degree of consanguinity between the applicant and the respondent.
In the case of an application for a change in the maintenance assessed previously, a certificate of the decision previously assessing the maintenance must also be attached.
If the applicant cannot submit these certificates owing to a lack of means, the court itself may request these from the competent bodies.
Once the application has been submitted to the court, the judge will arrange for a meeting to take place within fifteen days. The applicant and respondent and the person who has custody of the minor shall be present at the meeting.
If the applicant and respondent appear at the meeting and reach agreement, the judge will deliver a judgment approving the points of agreement that comply with established law.
If the meeting cannot be held (for example, owing to the absence of the respondent) or no agreement is reached, the judge will order that the respondent be informed that he must submit a written response (defence).
If the respondent submits a written response, a trial will follow at the end of which the judge will give a judgment.
If the respondent does not submit a written response, the judge will take the steps considered necessary to assess the means of the respondent and the needs of the applicant and will give judgment.
With regard to other actions, the need to instruct a lawyer depends on the amount involved in the case. If the amount exceeds € 3 740.98, a lawyer must be instructed. If it is less than this, there is no such requirement.
If the appointment of a lawyer is not compulsory, the applicant may submit an application to the court (referred to as an initial application) which will designate the court where the action is being brought, identify the parties, indicating their names, places of residence or offices and, where possible, occupations and places of work, set out the form of the proceedings, explain the facts and legal reasons forming the grounds for the action, make the request and declare the amount involved in the case. At the end of the application, the list of witnesses may then be indicated and other evidence requested. The document proving the prior payment of the initial court fee or the granting of legal aid, in the form of a total or partial exemption from this fee, must be attached to the initial application.
In this type of action the other party always has the right to make representations. During the action, the facts to be assessed in the trial are established and an investigation takes place in which the evidence to be produced is presented and also submitted to the opposing party. During these proceedings, a trial is held after which the final judgment is delivered.
To bring an action, it is necessary to pay an initial court fee which corresponds to an advance on the final costs.
At the end of the proceedings, a statement of the costs will be drawn up including the court fee and the procedural costs, which consist mainly of:
In order to determine the amount to be paid, it is necessary to know the amount involved in the action. It is on the basis of this amount that the amount of the initial payment and the court fee due at the end will be assessed according to a special table.
In this respect, it should be noted that actions for definitive maintenance have a value equal to five times the annuity requested in the application, i.e. the amount obtained by multiplying the requested monthly allowance by sixty.
Minors, represented by the public prosecution service, are exempt from costs.
If the applicant does not have the means to pay for the proceedings, legal aid may be obtained. The Portuguese legal aid scheme applies in all courts and to any form of proceedings, with the maintenance applicant benefiting from a presumption of financial insufficiency.
For further information, see the “Legal aid – Portugal” page.
Until the maintenance is assessed definitively, the court may, at the request of the person to whom maintenance is payable or on its own initiative if that person is a minor, grant provisional maintenance which will be determined at its careful discretion. This maintenance, which will never be refunded, will be received while the action is pending and until such time as the amount to be paid definitively is assessed.
As a rule, maintenance must be assessed as monthly payments, except where there is an agreement or legal provision to the contrary or where there are reasons to justify exceptional measures. If, however, the maintenance debtor shows that he or she cannot pay this as an allowance but only in the form of his or her house and company, this may be ordered.
Maintenance will be proportional to the means of the maintenance debtor and to the needs of the maintenance creditor. In assessing maintenance, the possibility of the latter supporting himself or herself will also be examined.
In determining the amount of the maintenance due to spouses, 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 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 maintenance debtor.
If, after the maintenance has been assessed by the court or through a court-approved agreement between the parties concerned, the circumstances determining this assessment change, the maintenance may be reduced or increased, as the case may be, or other persons may be obliged to pay it.
A change in the previously assessed level of maintenance may be requested by the maintenance debtor (if, for example, his or her financial means diminish) or by the maintenance creditor (if, for example, he or she has not received income that was taken into consideration when the maintenance was assessed, if his or her family circumstances have changed or if there has been any change in the cost of living).
The maintenance will be paid under the terms and to the person indicated in the court decision or in the court-approved agreement.
As stated above, maintenance must be assessed as monthly payments unless there is an agreement or legal provision to the contrary or unless there are reasons to justify exceptional measures.
If, however, the maintenance debtor shows that he or she cannot pay this as an allowance, but only in the form of his or her house and company, an order to this effect may be issued.
As a rule, if the beneficiary is an adult, not subject to an incapacity, the maintenance will be paid to him or her direct. If he or she is an adult subject to an incapacity, the maintenance will be paid to that party that is under the legal obligation to exercise their financial rights on their behalf (guardian, trustee or judicial property administrator); even an institution may receive the maintenance.
If the beneficiary is a minor, the allowance will be paid to the parent who has custody, to other ascendants, if applicable, or to the director of an institution to which the minor has been entrusted.
The law does not impose fixed methods of payment and the parties may agree on how payment is to be made.
If there is no agreement, the courts decide on the more practical and less costly method, for either the person paying or the person receiving the maintenance.
Normally, the monthly allowance must be paid at the beginning of the month to which it relates and may be paid by any means which the beneficiary suggests and which is legitimate. The most common method is by bank transfer or by deposit into an account opened at a bank but may involve the sending of a postal order or cheque or even the personal delivery of cash.
The right to maintenance is supported by a very strong and consistent system of legal protection.
The means available invariably involve bringing the case to court.
There is both criminal and civil protection of the right.
At criminal level, anyone who is legally obliged to pay maintenance and is able to do so but does not comply with this obligation, thereby possibly preventing the fundamental needs of the maintenance creditor from being met without help from third parties, is liable to a prison sentence or a fine. The criminal procedure requires the lodging of a complaint. If the obligation is then fulfilled, the court may waive or set aside in full or in part the period of the sentence not served.
At civil level, and in the case of maintenance due to minors, when the person under a legal obligation to pay maintenance does not pay the amounts due within ten days of the date when they became payable, the following occurs:
The amounts deducted will also include the maintenance which may be about to fall due and will be paid direct to the maintenance creditor.
In other situations, it is possible to bring special maintenance enforcement proceedings.
This enforcement involves the following in particular:
If the petitioner requests the adjudication of amounts or pensions, the court will order that the body responsible for paying these or for processing the respective payrolls be notified that it is to pay the adjudicated part direct to the petitioner. If the latter requests the pledge of income, he or she will indicate the property to which this must apply and the judge will order that the property considered sufficient to meet the maintenance due be pledged. The other party may be heard for this purpose.
If, once the pledge has been made, it transpires that the income pledged is insufficient, the petitioner may indicate other property.
If, on the other hand, it transpires that the income is excessive, the petitioner is obliged to pay the excess to the other party as and when the excess is received. The other party may also ask for the pledge to be limited to part of the property or to be transferred to other property. The above is also applicable, depending on the circumstances, if the amount of the maintenance allowance is changed during the enforcement proceedings.
When property has been sold to pay a maintenance debt, the return of the excess from the enforcement to the maintenance debtor shall not be ordered unless the payment of the maintenance due, up to such amount as the judge, in terms of equity, considers appropriate, is assured, except where a security or other suitable guarantee is provided.
If the maintenance debtor in the case of a minor cannot make the payment because of total financial incapacity (for example, on grounds of unemployment, illness, physical incapacity or drug addiction), payment of the maintenance may be ensured, until the debtor meets the conditions needed to assume his or her obligation, by the Fundo de Garantia dos Alimentos Devidos a Menores [Guarantee Fund for Maintenance due to Minors], which is managed through a special account by the Instituto de Gestão Financeira da Segurança Social [Social Security Financial Management Institute]. This Fund will pay maintenance, by order of the competent court, through the regional social security centres in the area where the minor resides.
For the recovery of maintenance abroad, it is possible to obtain help, under the relevant Convention, from the Direcção-Geral da Administração da Justiça (Justice Administration Department), which acts as the transmitting authority and intermediary institution.
The Convention is intended to help a maintenance creditor in the territory of one of the Contracting Parties to obtain the maintenance to which he or she is deemed to be entitled in relation to another person (debtor) under the jurisdiction of another Contracting Party.
Portugal has also concluded with France a Convention on Legal Cooperation in the Protection of Minors, for which the Instituto de Reinserção Social [Social Reintegration Institute] is the central authority in Portugal. This Convention aims to protect minors who are nationals of either of the two countries.
The Fundo de Garantia dos Alimentos Devidos a Menores [Guarantee Fund for Maintenance due to Minors] ensures the payment of maintenance awarded to minors resident in Portugal when the maintenance debtor cannot pay the amounts due or when it is not possible to enforce payment and the minor does not have a net income higher than the national minimum wage and does not receive in this respect any income from another person who has custody of him or her.
The other organisations indicated have an important role in the process of recovering maintenance but do not have the power to replace the debtor.
The answers given to the previous two questions are valid in this respect.
Under the Convention on the Recovery of Maintenance Abroad, the transmitting authority and intermediary institution in Portugal is:
Direcção-Geral da Administração da Justiça,
Av. 5 de Outubro, n.º 125,
P - 1069-044 Lisbon,
Telephone: +351 21 790 36 00,
Fax: + 351 21 790 36 98/9,
Under the Agreement concluded between the Portuguese Government and the French Government, the central authority is, as stated:
Instituto de Reinserção Social,
Av. Almirante Reis, n.º 101,
P - 1150-013 Lisbon,
Telephone: + 351 21 317 61 00,
Fax: + 351 21 317 61 71
When a maintenance creditor is located in the territory of a Contracting Party to the Convention on the Recovery of Maintenance Abroad and the maintenance debtor comes under the jurisdiction of another Contracting Party, the former may send a request to the transmitting authority of the country in which the debtor is located in order to obtain maintenance from the latter.
Therefore, if the maintenance creditor is located in one of the contracting countries and the maintenance debtor is in Portugal, the Justice Administration Department, as the intermediary institution, acting within the limits of the powers granted by the maintenance creditor, takes all the steps appropriate to ensure the recovery of the maintenance on behalf of the latter. It may negotiate and, if necessary, bring and continue a maintenance action and may also have any decision, order or other legal act enforced.
Under the Convention on Legal Cooperation in the Protection of Minors concluded between Portugal and France, the Instituto de Reinserção Social (as the Portuguese central authority) can ask the respective judicial authorities to intervene as quickly as possible, through the public prosecution service at the court having jurisdiction, and to declare that a decision on the maintenance obligation is enforceable.
In accordance with the provisions of their internal law, the central authorities transmit requests for the enforcement of decisions already declared to be enforceable and the respective competent authorities are asked to intervene for this purpose.
Yes. For the specified purposes, the petitioner does not need any intermediary.
See the answer to question No 16.
See the answer to question No 17.
Further information may be obtained from the following websites:
Last update: 30-08-2006