Portugal: Back To The Future: The Brand New Inventory Scheme

Answering a large chorus of protests, led mostly by the Bar Association, the Probation Legal Regime, approved by Law No. 23/2013 of 5 March, which regulates the distribution of inheritance rights and matrimonial property since September 2013 — after several inoperative versions, found its premature end.

Expected to be effective on the first day of 2020, Law No. 117/2019, published on Friday, September 13, restored the principal probate jurisdiction to the Civil Courts, pushing Notaries to a corner marginal position, with little more application than consensual probation.

This huge change also reintroduces the special probation process back to the Civil Code, while maintaining a parallel — and again marginal — notarial probation regime in an autonomous statute, through a legislative technique of doubtful clarity and difficult access to the citizen.

Without any explanatory preamble or memorandum, the new probation regime will regulate the procedure for ending hereditary communion and sharing assets, listing inherited assets and serving as the basis for eventual liquidation of inheritance, where inheritance sharing is not necessary, sharing property as a result of the justification of absence and sharing common property of the couple after legal separation of property, persons and property or divorce.

The probation, in a strategy that has been reinforced by the IMF-European Bank-European Commission troika mandate to reduce Court delays, had moved entirely to the competence of private Notaries. It now goes back to the exclusive responsibility of the Civil Courts in cases where a minor or incompetent intervenes or if an absentee is involved and the Public Prosecutor sees the need for benefit of inventory; when the inventory is dependent on another court case (and therefore and immediately in all cases of contentious divorce) or whenever required by the Public Prosecutor.

Apart from these cases, the Law maintains an apparently optional jurisdiction between Courts and Notaries, but the latter depends at least on the tacit acceptance of all parties, who may however at any time request that the procedure is redistributed to a Judicial Court.

The process begins, as it already did, by the initiative of the head-of-family or any interested party and immediately leads to a first intervention by the Judge, which proceeds to a preliminary assessment of the request. Although this preliminary assessment is similar to what is foreseen in the present notary proceedings, it does in fact constitute a significant departure from the ordinary civil procedure, which since 1995 has relegated the Judge's intervention to a later stage, after some stabilization of positions — which , in terms of procedural speed, will be a possible cause for delay.

Only after this preliminary phase are the interested parties summoned. They then may, within a period that now rises from 20 to 30 days, challenge the inventory and the list of assets, as well as the legitimacy of the head-of-family. In turn, the time to reply to the opposition is raised from the current 10 (regarding list of assets) and 15 (opposition) days, to a more reasonable 30 days.

Following this argumentation phase, the Judge may now, at his discretion, convene a preliminary hearing aimed primarily at the full or partial composition of the dispute.

This is now followed by a new phase of procedural reorganization, absent from the notary inventory process that had been in place so far, apparently consistent with the new judicializing structure of the new regime. In fact, in the hands of the Notary, the process would immediately evolve into a preparatory conference, which already aimed at the very sharing of goods to be shared.

It is curious to note that, in the current regime, and given the limited decision-making power of the Notary, the material questions concerning the inclusion or exclusion of assets and debts from the scope of the inventory and which were based on the discussion of their common or individual property, was not subject to decision in the case itself, implying that the parties filed claims in a different court proceeding, which did not, as a rule, lead to the suspension of the probatory process.

If we consider that, usually, the discussion, especially on divorce-sharing, resulted from differences regarding the common or individual property, the continuation of partitioning only the unquestionably common property led to a "stillborn probate", and it could be conceived that the partition would end by sharing nothing, while the parties would be debating in the Courts over the common or individual property of the assets — a discussion that usually gives raise to the need of the probation procedure to begin with. Leading to the absurdity of, having closed the probatory procedure, reopening it, once a new asset is finally decided to be common.

It would be expected that transferring competences to the hands of the Courts would introduce some logic into this procedure and would not pursue a partial partition of the disputed assets. Surprisingly this is not the case, since the parties keep being redirected to a news separate property claim, while the probartory partition carries on with the common assets.

The new regime, however, brings major changes in procedural costs. In fact, the regime still in force made use of Ordinance No. 278/2013, of 26 August, which contained a table based on the values applied by the Regulation on Procedural Costs, but which did not contain some of the caveats of the latter. This system thus resulted in a significant increase in the value of the costs and, more seriously, the initial court fee, which entailed a great and often dissuasive financial effort to start the procedure.

The new Law has the consequence of simply applying the Regulation on Procedural Costs, in particular with the limitation of its Article 6 (7), which delays paying excess Court Taxes after the final decision, and then only burdening the losing party (or proportionately the losing party. The procedural initiative thus nos has a maximum ceiling of € 816.00.

The remaining discipline of the probatory procedure is in keeping with the current statute. However, doubt must be raised, knowing that judicial probatory processes have always been the longest (there are still pending probatory processes which started more than 20 years ago), if when drafting the new regime, care was really put on identifying and eliminating the delaying aspects. We find little concern in the establishment of specific Court jurisdiction, thus relegating the Probatory Processes to the Central Civil Courts of the District, without any adjustment, suggesting that little will change with respect to the lentor that preceded the revolution in the transfer of jurisdiction to the Notaries, the latter nonetheless more malleable and sensitive to direct contact with the Parties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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