Unfortunately these things happen here as well.
The legal procedures for termination of a marriage agreement by divorce can be relatively straight forward if both partners agree to divorce, are of the same nationality, were married in Portugal, and have nor children or financial commitments. However, for foreign residents living in Portugal this will rarely be the case.
This bulletin describes the basic procedures for divorce in Portugal, but in all cases both partners would be well advised to seek professional advice from their lawyer, financial advisor and consulate before the relationship breaks down or even before entering into marriage. The existence of a registered pre-marriage agreement or contract (convenção antenupcial) may facilitate the divorce proceedings.
Forms of divorce in Portugal
There are two principal divorce procedures in Portugal, the simplest is by mutual consent (mútuo consentimento). If only one partner is seeking divorce or if there is disagreement, divorce must be done through the courts (divórcio litigioso). The procedures for both are described below. First there are four key questions to consider.
Distribution of goods and property
In Portugal the marriage agreement determines how goods and property are owned. There are three options:
- each of the partners owns property and goods separately so there are no jointly owned items (bens separados);
- each partner retains individual ownership of items they owned prior to the marriage, but all items acquired during the marriage are jointly owned (bens adquiridos);
- all property and goods are jointly owned (bens em comum).
In the latter two types of marriage, the divorce settlement will have to include a mutual agreement or a court ruling on the division of the jointly owned goods and property.
The family home
The settlement will include a decision on which party may continue to live in the family home. If there is no mutual agreement on who will continue to live in the home, one or both parties may ask the court to decide. To reach this decision, the court will take into account the interests of any children as well as that of the two parents.
If the home is jointly owned, the court may allow the partner remaining in the home to rent it from the other. Equally if one party owns the home, the other may be allowed to continue to live there on a rental basis.
If the home is rented there are two alternative decisions. If the rental agreement is in the name of the partner permitted to remain in the home there needs to be no further action. If the rental agreement is in the name of the other partner the landlord will have to be notified to change the rental agreement.
Maintenance is intended to provide for sustenance such as for housing, food, and clothing. Ideally, there should be an agreement on maintenance (acordo de pensão de alimentos) before the divorce. In some circumstances, the maintenance agreement may be determined by the court after the divorce, as described later.
Parents are obliged to support their minor children (normally unmarried children under 18 years), providing for their food, housing, clothing and education. The court takes the decision on child maintenance, even if the parents have reached a mutual agreement this will need the approval of the court. The court will fix monthly maintenance on the basis of the child’s needs and the parents’ means.
The court will also determine parental rights, giving priority to the child’s best interest. Even a mutual agreement between the parents will require approval from the court. Normally the agreement should determine how the parents will take care of the child and take decisions on the child’s behalf. The agreement will normally include the rules for access.
Divorce by mutual consent
A married couple can request divorce by mutual consent at any time. It can be done through the Civil Registry (Conservatória) or through the local court (_Tribuna_l), and does not require the presence of a lawyer (although a lawyer’s services would be advisable for preparation of the necessary documents).
If there are minor children, divorce in the Civil Registry can only take place once a court has ruled on parental rights of access and responsibilities for care of the children. The divorce papers should be submitted to the Civil Registry in the place of residence of one of the couple or in one chosen by both parties to the marriage. The application includes a signed statement from both indicating their intention to divorce but does not require a motive. The application will also require:
- a certified copy of the marriage certificate (certidão do registo de casamento),
- an agreement on maintenance signed by both parties (acordo sobre a prestação de alimentos),
- an agreement on use of the family home signed by both parties (acordo sobre o destino da casa de morada de família),
- an itemised agreement on the division of jointly owned goods and property signed by both parties (relação especificada dos bens comuns),
- a certified copy of the pre-marriage agreement (certidão de convenção antenupcial), if there is one,
- if there are children, the certified decision from the court about parental rights and responsibilities (certidão da sentença do poder parental).
A divorce with mutual consent can be processed within 3 months unless custody is requested. This can only go through the court and may delay proceedings up to 6-9 months.
To apply for divorce through the court, the documents required are similar to those described above. The major difference is that couples with minor children only need to present their agreement on parental rights and responsibilities. The court will then rule on that as part of the divorce proceedings.
Divorce without mutual agreement
When there is not mutual agreement on divorce, one of the partners in a marriage may apply to the court for divorce. Both parties must have legal representation. The person requesting the divorce must first present the application laying out the causes leading to the request. If at any time the couple reach an agreement on the divorce, they may apply to the court to abandon the procedure and to apply for divorce by mutual agreement.
There are two major causes for divorce. These are:
- Grave or repeated violation of marital responsibilities (sees the bulletin on Marriage) which compromises married life.
- Breakdown of life in common.
Breakdown of life in common may apply when there has been:
- a separation for 3 consecutive years;
- a separation for one year only, if the divorce is uncontested;
- an alteration of the mental faculties of the spouse, lasting for at least 3 years;
- an absence of the spouse without news of them for at least 2 years.
The above causes of divorce are only valid for a certain period of time. For example, an isolated physical attack would not normally be considered as cause for divorce after two years. Similarly, unjustified abandonment of the marital home by a spouse who subsequently returns is only valid for a period of two years from the date of their return.
A divorce without mutual consent may take up to 5 years. If custody is requested then the process may take up to 5-7 years.
Request for maintenance
Once the divorce has been decided, one of the couple may apply for maintenance from the other through the court. The court may accept an application for maintenance in the following circumstances:
- The person applying for maintenance was not declared the guilty party.
- The court did not authorise the divorce because of alteration of the mental faculties of the person requesting maintenance.
- If the cause for divorce was shared equally by the two parties.
In exceptional cases the court may consider applications even if the above circumstances do not apply. It will take into account the length of the marriage and the claimant’s contribution to the economy of the marriage.
The maintenance agreement will cease once the person receiving maintenance remarries or becomes illegible for