By Dr. Eduardo Serra Jorge [email protected]
In his column, Lawyer Eduardo Serra Jorge from lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., will be addressing legal issues affecting foreign residents in Portugal.
Recently in Portugal, Law n.º61/2008 of October 31 reviewed the legal regime of divorce ruled by the Portuguese Civil Code (PCC).
Key points are:
• No one should remain married against his/her will;
• Elimination of the legal concepts of guilt and of the divorce based on fault (divórcio-sanção);
• Regulation of compensation related to the enrichment or impoverishment flows during marriage;
• Payment of maintenance to the spouse in need by the one who has more financial resources
• Promotion of self-sufficiency after divorce;
In the case of foreign citizens living in Portugal, if the spouses have common nationality, the common national law will be applied in case of divorce.
However, if the spouses are of different nationalities, the law applicable to both will be the common habitual residence law. But if the spouses don’t have the latter in common, then the laws of the place in which the family life is most closely associated with will be applicable.
So, if Portuguese Law is applicable to rule the divorce, proceedings can be instituted by mutual consent or by a contested action.
Divorce by mutual consent
If both spouses agree to dissolve their marriage, the proceedings will take place in any Portuguese Civil Register Office (PCRO) or at a Balcão Divórcio, which is a simplified public service that allows people to carry out all the terms of a divorce by mutual consent.
In a divorce by mutual consent, the spouses will have to present the due official form provided by the PCRO, a detailed list of all common assets and debts (mentioning their values), the agreement or judicial decision on the parental responsibilities (if minor children exist), the agreement declaring the spouse who will remain at the family house and the prenuptial agreement if it exists and wasn’t made at a PCRO.
Once the application is submitted, the PCRO will analyse it and if no problems arise, the divorce decision will be made.
Both ex-spouses’ common assets will be divided as agreed and the Public Civil Registrar will provide for its registration on the due Land Register Office.
The divorce by mutual consent costs €250 if there are no common assets to be divided but can cost up to €550 if it is necessary to divide and register assets.
Divorce by a contested action
A contested divorce may be petitioned by one of the spouses if they are not able to achieve a mutual consensus.
Due to the revision of the Portuguese legal divorce regime in 2008, a culpable plea is no longer necessary to obtain a divorce judicial decision.
The only legal grounds for a contested divorce are the following:
1. De facto separation for one year (it means that there is no communal life between the spouses and one or both of them propose not to re-establish this);
2. Any change in the mental faculties of the other spouse when this has lasted for more than a year because of its seriousness, it compromises the possibility of life together;
3. Absence of one spouse without any news for a period of more than a year;
4. Any other facts that reveal a definitive breakdown of the marriage, for example, domestic violence.
Once a spouse asks for a judicial divorce decision, the Judge will appoint a date for a Reconciliation hearing.
If that is not successful, the Judge tries to persuade the spouses to agree on a mutual consent divorce.
If no consensus exists, the Judge will try to get an agreement about the maintenance payments, the parental responsibilities and also on the use of the family house during the process.
The other spouse is allowed to present his/her defence and both parties should indicate witnesses and present documents to the Judge in order to prove the facts they alleged to the success of both initial petition and defence and finally the Judge will give a decision.
To claim for a judicial divorce decision you can expect to spend more than €500 on courthouse fees.
Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987. He can be contacted at his Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C, on telephone +351 289 829 326, Fax. +351 289 829 327 or email: [email protected]. Alternatively, please visit www.esjmjgadvogados.com