Portugal has a progressive attitude to divorce and was one of the first European countries to permit divorce when the First Republic was created in 1910. However, in 1940 this right was rescinded when the Vatican prohibited divorce for Catholics. The right was restored in 1975 following the Carnation revolution.
Portugal permits a couple to divorce at any time following their marriage under a no fault concept. The person applying for divorce does not need the consent of the other party, although the process will undoubtedly be quicker and trouble free if there is agreement.
Marco Lobato, a Partner based in the Porto office, comments "there are three types of divorce in Portugal. The least challenging is divorce by mutual consent where both parties are in agreement that they wish to divorce and have also agreed on all the arrangements that surround divorce. The Court's involvement is simply to clarify the conditions such as the financial arrangements. If one party of the couple wishes to be divorced and the other party does not wish to, the Court will decide all aspects of the divorce if the couple cannot find a way to agree." Marco further commented "Where there are children of the marriage the Portuguese authorities take the arrangements made very seriously and strive to ensure that the children are placed in the best possible position under the circumstances."
Divorce in Portugal can either be conducted in a Registry Office which requires the marriage to be transcribed, or alternatively in a Court. The main criteria permitting the parties to divorce in Portugal is residence, one of the parties must have this connection to Portugal. Council Regulation (EU) 2019/1111 of 25 June binds the Court in this respect. Portuguese nationality of one of the parties also enables divorce in Portugal. The required documents for the divorce must be translated and apostilled, if the marriage took place abroad. Proceedings through the Court are far quicker and smoother, even if the marriage took place overseas, providing one party lives in Portugal.
Grounds for Divorce
The grounds for divorce in Portugal are as follows:
- The marriage must have irretrievably broken down for any reason
- The mental health of one spouse has deteriorated to such a degree that it has become impossible for the other spouse to live with them.
- One spouse deserts the other for a year or more
- The couple have separated for at least one year
Divorce Documentation and Procedure
There are a number of documents that must be provided in order to divorce, including a list of the assets held in the marriage and the way the assets are held, signed by the parties. Pets that are owned by the couple should also be included.
- A written statement confirming that the couple wish to divorce
- The marriage certificate (certidão do registo de casamento) must be provided to establish the validity of the marriage.
- Community of property (Comunhão geral). All property brought to the marriage and acquired during the course of the marriage is communal. If either party has existing children this marital regime cannot be chosen.
- Community of property and other assets that have been acquired during the course of the marriage (Comunhão de adquiridos)
- Out of community of property (Separação geral de bens) when one or both of the couple are aged sixty or more this marital regime applies.
With regard to the various marital regimes, couples have a choice and can choose their own marital regime, or combine certain characteristics.
Should the couple have chosen to commission a pre-nuptial agreement (certidão da convenção antenupcial) this should also be submitted if this varies the way that the communal property is held. With regard to spousal maintenance if the couple have come to an agreement a written copy of the arrangement, signed by both parties, should be presented.
Child Arrangements
In Portugal child maintenance (alimentosis) paid by the parent without custody to the child's custodial parent until the child is 18 years unless the child is in higher education in which case it is paid until the child is 25 years. Failure to maintain the payments can lead to criminal charges of enforcement orders. There is an expectation that both parents share the responsibilities for children equally. The issues that are considered are as follows:
- Place of residence and with whom
- Visitation rights of the absent parent
- The religion the child should be brought up in (if at all)
- Education, the type of school, private, public, boarding or religious (convent)
- Medical care
- Types of sport activities the child should be permitted to undertake
- Visitation rights of the extended family
- Whether the child should be permitted to travel abroad with the non-custodial parent
- Financial arrangements
Custody
Joint custody, (Guarda Partilhada), is preferred and is the favoured position, which supports the Portuguese law that both parents should share responsibilities on an equal basis. Sole custody (Guarda única), is granted if the family situation is such that this is the only possibility. The child's domicile, education and day-to-day care must be satisfactorily arranged and approved by the Court. Children of the marriage and their well-being is the priority.
A contested divorce is inevitably a costly and prolonged enterprise and Giambrone and Partners' family lawyers always attempt mediation and make every effort to ensure that matter is brought to a close as speedily as possible with minimal distress for all parties.
When the couple are foreign nationals of different countries, the question of domicile and access can be complicated. It is vital for parents to establish fair living arrangements with the minimal disruption and distress to the children of the marriage and to agree on such things as arrangements to visit the home country of a parent who is not living in Portugal. Cross-border divorce can create contentious issues, not the least is the potential for parental child abduction abroad. Our family lawyers have a wealth of experience in navigating the many difficulties faced by divorcing couples and can guide and advise in all circumstances to create the best possible options.
Marco Lobato has extensive experience and proficiency in a wide range of commercial disputes and civil litigation matters including debt recovery where he assists the parties with negotiating settlements and provides structured payment plans. He also mediates in breach of contract matters, partnership disputes and employment law disputes to avoid lengthy court procedures and is able to establish the full range of intellectual property rights for clients. He is well regarded by his clients who recognise that his thorough understanding of their business objectives results in solution-based strategies that are effective in achieving sought-after outcomes.
Marco has advised in a number of high-profile criminal cases and as a multi-lingual criminal defence lawyer holds particular expertise in assisting clients of various nationalities with criminal allegations in a wide range of criminal proceedings, providing judicial representation but also negotiating where possible with the relevant authorities to avoid having to appear in court.
Marco's expertise further extends to assisting individuals with family law, including divorce, financial and child arrangements, prenuptial agreements, personal injury, inheritance, wills and probate, as well as assisting in the distribution of assets under the laws of succession related to intestate succession. Cross-border real estate purchases, as well as real estate disputes relating to landownership, property boundaries, easements and zoning regulations also fall under Marco's expertise in addition to advising in associated immigration issues
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.