Family Law 2024 Comparisons

In Portugal, a divorce can be decreed by mutual consent or without the consent of one of the spouses. In the first situation, the parties do not have to disclose the reasons for the divorce. In the second situation, the grounds for divorce are established in Article 1781.º of the Portuguese Civil Code, as follows:

• de facto separation for one consecutive year;
• the alteration of the other spouse’s mental faculties, when it has lasted for more than one year and, due to its seriousness, jeopardises the possibility of living together;
• absence, without news of the absentee, for a period of not less than one year; or
• any other facts which, regardless of the fault of the spouses, show the definitive breakdown of the marriage.

The law does not establish different grounds for divorces between same-sex spouses. Portuguese law does not recognise civil partnerships, which is the reason why there are no grounds for ending this kind of relationship.

If the divorce is by mutual consent, it can be requested in the Civil Registration Office and it will be decreed in two to three months, depending on whether there are minors.

In a divorce without the consent of one of the spouses, the one that wants to divorce must file for that in court. One of the grounds for divorce is the de facto separation for one consecutive year.

When a spouse files in court against the other, that court will serve the other party.

Catholic marriage has the same effect as a civil marriage (Article 1587.º nº 2 of the Portuguese Civil Code). All other religious marriages do not have civil effect, which is the reason why, in these cases, a civil marriage is mandatory.

Besides divorce, a marriage can be declared null and void by a decree issued by the court rendered in a specific process filed by any of the spouses or by someone who, according to Portuguese law, has the right to ask for it in the name of the spouse if they cannot do it by themself.

Depending on the grounds for the nullity of the marriage, the application can be filed only within a certain period, namely, if the reason for the nullity is that one of the spouses is underage, until six months after reaching majority. If the ground for nullity is lack of will or a vicious will, the deadline to file for the application requesting nullity will be six months after the moment that the parties acknowledged the lack of will or the vicious will ceased.

Is also possible to petition the court for judicial separation but it does not end the marital bond; it only extinguishes the cohabitation duty. In relation to assets, the effects of the judicial separation will be the same as divorce.

It is important to emphasise that, one year after the court decision rendering judicial separation final and binding, any of the spouses can judicially request that the separation be converted into divorce.

To establish the international competence of a Portuguese court, as Portugal is a member state of the European Union, Regulation 2019/1111, dated 25 June 2019, must be applied. Article 3 sets down the relevant connections for competent international jurisdiction, which mainly relate to the habitual residence and nationality of the spouses, even if they are a same-sex couple.

According to the aforementioned Regulation, the concept of residence is considered on a case-by-case basis, being that the place of residence of a person is where the centre of that person’s life is established, namely, where they work, live, have family, friends, etc.

In a divorce, if one of the parties considers that the court that has been seized is not internationally competent for the divorce, they can contest the jurisdiction.

According to Article 17 of the Regulation, the court is seised when the document instituting the proceedings is lodged with the court, or, if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service.

To stay proceedings, a party can invoke that they have already filed for divorce in another jurisdiction. In this situation, and according to Article 20 of the Regulation, the court where the process has been filed in second place will stay its proceedings until the jurisdiction of the court first seised is established.

While divorce proceedings are pending, and until the final decision, a party can ask for financial provisional measures: provisional alimony and provisional use of the marital home. In both cases, the party must allege the necessity of it, their weaker economic capacity and the economic capacity of the other spouse to grant alimony and also to find a new house for themself.

If there are children, alimony for the benefit of the children can be requested, with proof of the needs of the children and the economic capacity of the parent obliged to pay for it.

A party can contest the international competence of a jurisdiction, if there are grounds for that: namely, that the court of another country has exclusive jurisdiction to decide about a certain type of assets, eg, real estate.

In a lis pendens situation, the proceedings can be stayed until it is decided which court has jurisdiction.

However, if the questions to be decided are different, and according to international rules both states are internationally competent to decide on the issue presented to each one, the processes can run independently.

After a foreign divorce, and if the Portuguese court, at the time of the filing, has international jurisdiction, the court can hear financial claims. For instance, following a divorce decreed in Spain, if both or one of the spouses come to live in Portugal and, at some point, have the need for alimony, the Portuguese court can be internationally competent to decide on that.

Service in financial proceedings is always made by the court in which the process is filed. The process and the timeline for financial proceedings depend on the complexity of the situation and the need to translate documents, etc.

For example, the processes in provisional and final alimony are different, either as concerns the procedural rules or what kind of proof is required. The provisional process will take less time to be decided.

Another example is the process when one spouse seeks to end the maintenance obligation. This process will take longer, as it is necessary to prove that the situation justifying the maintenance obligation no longer exists: namely, the party obliged to pay alimony can no longer pay that amount or the party that receives alimony does not need it anymore.

On divorce, the assets will be divided according to the matrimonial regime. In Portugal, there are three main matrimonial regimes:

• separation of all assets;
• communion of all assets; and
• communion of assets acquired after the marriage.

Division will be necessary only in the communion regimes of assets. The rule is that the assets should be divided 50%–50% between the spouses.

In the communion of all assets there is a rule that, in divorce, none of the spouses can receive more assets on the division than they would receive if the marital regime was the communion of assets acquired after the marriage.

In Portugal, the assets can be divided only after the divorce. Division of the assets can be made by agreement or by judicial proceeding. In a judicial proceeding, the court considers all of the assets (assets and liabilities), and determines the amount each spouse will be entitled to.

The parties should inform the court of the assets and liabilities, but there is no disclosure process. However, if one party considers that the other is hiding assets, they can claim that. The party making the claim should provide proof of the existence of the hidden assets.

The court has limited powers in relation to disclosure. In relation to third parties, a rule states that everybody should co-operate with the court when asked to do so. The court can ask for bank secrecy to be lifted.

In Portuguese legislation, there is no concept of trusts. Family courts encounter considerable difficulties when dealing with cases with international connections involving trusts, even if the court has to apply a foreign law. 

In Portugal the rule is that, after the divorce, each spouse should provide for their own maintenance (Article 2016.º n.º 1 of the Portuguese Civil Code). Despite that, following the breakdown of a marriage, either of the spouses has the right to request provisional maintenance from the other spouse, taking into consideration basic life needs.

The party will have to prove the need, the lack of capacity to provide for their own needs and the capacity of the other spouse to provide maintenance. Provisional maintenance can be requested by the party or the court can make the determination.

A spouse can also ask for final maintenance, alleging that they have no means to survive without it. Under Article 2016.º-A of the Portuguese Civil Code, the court will take the following into consideration:

• the duration of the marriage;
• the contribution of that spouse to the couple’s economy;
• the age and state of health of the spouses;
• their professional qualifications and employment possibilities;
• the time that they may have devoted to raising children; and
• their income and earnings, etc. 

In Portugal, only prenuptial agreements are recognised. The courts fully apply prenuptial agreements.

The only way to change the regime of assets after the marriage is through a judicial proceeding of separation of assets.

For unmarried couples, the only division of assets possible is where the assets were acquired by both of them. In this case, there is a co-ownership and, with the breakdown of the relationship, each of the co-owners can make a specific application to the court requesting the division of common property.

After two years of cohabitation, in case of breakdown of the relationship, the ex-cohabitants will acquire the right to use the marital home, either if it is rented or if it belongs to the other or to both.

Also, after the death of one of the cohabitants, the other has the right to use the family home for a period of five years. After this period, they can still live in the family house as a tenant. If the house is to be sold, the cohabitant has a preferential right in the sale of the house under the same conditions as the buyer.

Cohabitants are not heirs of each other. If they have children, they must regulate the exercise of parental responsibilities in the same way married couples do.

If a party fails to comply with an order concerning alimony, the other party can ask for coercive fulfilment and, for instance, the court can order that the amount due be paid directly by the employer to the creditor.

The international enforcement of financial orders, namely, concerning alimony, is permitted in Portugal. Specifically, Portugal has to apply Regulation (EC) No 4/2009, dated 18 December 2008, in relation to alimony arising out of a family relationship, parentage, marriage or affinity. The Regulation provides measures to facilitate the payment of alimony in cross-border situations. It regulates the way the orders should be enforced, whether issued by member states that are also obliged by the Hague Protocol of 2007 or by states not obliged under that Protocol.

In Portugal, family judicial processes are confidential, so only the lawyers and the parties can gain access. Parties are free to speak about the processes in which they are involved, but where processes relate to minors, they have the duty not to expose details relating to the children.

Also, when one of the parties decides to disclose procedural information, they must take into consideration the personal data protection act, which limits the possibility of public disclosure of personal data concerning any individual.

In Portugal, mediation is available as an alternative dispute resolution. It is not mandatory and, for that reason, there are no penalties for non-compliance. If the parties decide to use mediation and they are able to reach an agreement, depending on the agreement concerned, there are different steps that need to be taken.

For instance, a divorce must always be decreed either by a judge or by a civil registry chief officer.

An agreement reached concerning parental responsibilities must always be supervised by the Public Prosecutor and approved by the court or by the civil registry chief officer.

An agreement in relation to division of assets involving real estate must be formalised in a public deed.

According to Portuguese law and the EU Regulations that Portugal must comply with, the rule is that the international competence of a court is determined by the habitual residence of the child.

In exceptional circumstances, the court of a member state with jurisdiction to decide on the merits of a case can, on its own motion or at the request of one of the parties, suspend the process if it considers that a court of another member state with which the child has a particular connection is better placed to evaluate the best interests of the child, determining a deadline for the process to be transferred to the other court.

The most important item for a court to decide about a child is the consideration of their best interests.

Each parent can ask the court to regulate the exercise of parental responsibilities, defining the following:

• with whom the child will live;
• whether the child will live with both parents (for instance, a week with each one);
• the regime of visits (if it is established that the child lives with one parent);
• the quantum of the alimony; and
• the holidays the child will spend with each parent, etc.

The court will always make decisions in the child’s best interests.

Parents can decide the regulation of parental responsibilities by mutual consent or, if they are not able to agree on that, they must apply to the court. In both situations, as there are minors involved, the Public Prosecutor must agree with the defined arrangement.

The only restriction that the court has is to respect the best interests of the child, the right that the child has to have both parents in their life, and the emotional stability of the child.

Child maintenance is defined in Article 2003.º of the Portuguese Civil Code as all that is indispensable for sustenance, housing, clothing, instruction and education.

Child maintenance is calculated taking into account the needs of the child and the economic capacity of both parents to provide for the child’s needs. If one parent earns less than the other, the court can establish that the one who has more economic capacity should pay more than the other.

By agreement, the parties can establish all regulation of parental responsibilities, including child maintenance. However, to be enforceable, the agreement will always have to be approved by the court or by the chief of the civil registry office after the agreement of the Public Prosecutor to the content of the regulation.

Child maintenance should be kept until the end of academic studies or, the limit, until reaching 25 years old (Article 1905.º n.º 2 of the Portuguese Civil Code).

The maintenance fixed in favour of the child during minority will be maintained until the child reaches the age of 25, unless the respective education or vocational training process is completed before that date, it has been freely interrupted or, in any case, the person obliged to pay maintenance proves that it is unreasonable to demand it.

When a minor reaches the age of majority (18 years old), they can personally ask for financial support. Until that age, it must be requested by the parent that lives with the child.

When parents are not able to reach an agreement in matters that are relevant in the life of the child, the court can decide on that issue following a request by one of the parents against the other. Such matters include:

• the school the child attends;
• specific medical treatments that can put the life of the child at risk;
• religion issues;
• having or not having psychological support;
• authorising the child to travel with one of the parents or alone or with third parties; and
• place of residence, etc.

Parental alienation is very difficult to prove and the Portuguese courts are not so used to this.

Decisions granted by the Portuguese courts usually do not mention it, but, if a parent prevents the other from being with the child and that behaviour is recurring, the court can take measures, such as transferring the residence of the child to the other parent.

In fact, Article 1906.º n.º 5 of the Portuguese Civil Code states that the court will determine the child’s residence and rights of access according to the child’s best interests, taking into account all relevant circumstances, in particular, any agreement between the parents and the willingness shown by each of them to promote the child’s habitual relations with the other.

Children are able to be heard by the court. It is mandatory for the court to hear children when they have reached 12 years of age, but the court can decide to hear younger children if they show capacity to understand the issues and maturity to answer.

Moreover, the court can decide to hear the children as witnesses. In some particular situations, when the court understands that the interests of the children conflict with the interests of the parents, the court should nominate a lawyer for the children.

Mediation is available but it is not mandatory. It can be used to assist the parties to resolve financial issues.

In a court process of regulation of parental responsibilities, the court decides whether the parties should go through a period of mediation, which the parties can refuse.

The parties cannot refuse to go through a phase of specialised technical evaluation in which the social security services will try to reach agreement between the parents and, finally, will provide a report to the court setting out their views and conclusions.

Any agreement about regulation of parental responsibilities reached via a non-court process should be approved by the court or by the chief of the civil registration office after the agreement of the Public Prosecutor. Thereafter, the agreement is enforceable.

Alternative dispute resolution is not mandatory, which is the reason it cannot be imposed.

Processes concerning the children are confidential and cannot be accessed without authorisation. The press can report cases without identifying the name and pictures of the children.

The protection of children is always granted and is mandatory. If members of the media reveal data relating to children that allows their identification, the parents can take judicial action against the press.