Divorce is a delicate and complex topic that affects many families. In Portugal, divorce has been legally recognized and regulated since 1910, by the Decree of November 3rd. This comprehensive guide provides a detailed overview of the existing divorce modalities, the rights and duties of spouses, and the legal procedures to follow.
Whether you are seeking information on divorce by mutual consent or without the consent of one of the spouses, this article will help you understand all the necessary steps, legal implications, and the jurisdiction of Portuguese courts, especially for foreign citizens.
Discover everything you need to know to navigate the process with confidence and knowledge.
What does divorce entail?
Divorce is a process that terminates the marriage, ending the legal duties of the spouses and their personal and property relations.
What types of divorce exist?
The law recognizes two types of divorce: with or without the consent of the other spouse.
1. Divorce by mutual consent
- Can be initiated at the civil registry office at any time.
- Requires an application signed by the spouses or their representatives, accompanied by:
- A specified list of common assets and their respective values.
- Agreement on the division of assets or a request for its preparation if the spouses wish to proceed with the division of those assets immediately.
- Agreement on parental responsibilities (if there are minor children) or a copy of the court judgment that regulated them, if applicable.
- Agreement on alimony for the spouse in need.
- Agreement on the fate of the family home.
- Certified copy of the prenuptial agreement, if applicable.
- Agreement on the fate of pets, if applicable.
After the requests have been received, the spouses are summoned to a conference to verify the fulfillment of legal requirements. During this conference, the list of common assets is reviewed, as well as, if applicable, the agreement on asset division, alimony for the spouse in need, and the fate of the family home.
If these agreements do not safeguard the interests of either spouse or the children, the registrar invites them to amend them. If necessary, acts may be determined, and evidence may be produced. Subsequently, the divorce is decreed, which will then be subject to registration.
If there are minor children of the couple, the agreement on parental responsibilities is sent to the Public Prosecutor of the competent judicial court in the territorial area where the civil registry office is located. The Public Prosecutor pronounces within 30 days.
If the Public Prosecutor believes that the superior interests of the children are not sufficiently safeguarded with the terms agreed upon by the parents, the applicants may amend the agreement accordingly or present a new agreement (in which case the process will have to be submitted again to the Public Prosecutor for a new pronouncement).
If the Public Prosecutor considers that the agreement safeguards the interests of the minors, or if the spouses have amended the agreement after the Public Prosecutor’s review, the divorce is decreed, and the respective registration proceeds.
If the divorce applicants do not agree with the changes indicated by the Public Prosecutor and still wish to proceed with the divorce, the civil registry office will officially refer the case to the territorially competent judicial court before which the process will proceed.
2. Divorce without the consent of one of the spouses
It is based on any of the following grounds:
- De facto separation for one consecutive year;
- Alteration of the mental faculties of the other spouse, lasting for more than one year and, due to its severity, compromising the possibility of cohabitation;
- Absence, without any news from the absent party, for a period not less than one year;
- Any other facts that, regardless of the fault of the spouses, demonstrate the definitive breakdown of the marriage.
In the divorce process without the consent of one of the spouses, there is an attempt at reconciliation. If reconciliation is not possible, the judge will try to convert the process into a divorce by mutual consent, if there is an agreement between both spouses regarding the exercise of parental responsibilities for minor children, alimony for the spouse in need, and the fate of the family home.
A specified list of common assets, if any, with their respective values, should also be attached.
At any time during the process, the spouses may reach an agreement regarding the conversion of the divorce into a divorce by mutual consent.
If the conversion of the divorce into mutual consent is not successful, the process follows the procedures to produce evidence in trial regarding the invoked ground(s).
Can I continue living in the same house after the divorce?
Yes, in some cases.
The law recognizes that one of the spouses may have a special need for housing, which is why it is allowed for either of them to ask the court to grant them the family home for rental, even if it is the separate property of the other spouse. The rental contract is subject to the normal rules of residential tenancy.
However, the court may define the contractual conditions involved. The regime established in the case can be reviewed and altered at any time if supervening circumstances warrant it.
In which cases are Portuguese courts internationally competent?
This question often arises among foreign citizens who, not being Portuguese nationals, have resided in Portugal for some time, even if the marriage was celebrated abroad.
Portuguese law determines that the territorially competent court to hear the divorce petition, in cases where it must be brought before the courts, is the court of the petitioner’s domicile. However, the question arises as to whether Portuguese courts are internationally competent to adjudicate divorce proceedings in similar cases.
According to Article 3 of Council Regulation (EU) 2019/1111 of 25 June 2019, concerning jurisdiction, recognition, and enforcement of decisions in matrimonial matters and matters of parental responsibility and international child abduction, the courts of the Member State are competent to decide on divorce, separation, or annulment of marriage issues if:
- In whose territory:
- The habitual residence of the spouses is located,
- The last habitual residence of the spouses, insofar as one of them still resides there,
- The habitual residence of the respondent,
- In case of a joint application, the habitual residence of any of the spouses,
- The habitual residence of the applicant, if the applicant has resided there for at least one year immediately before the date of the application, or
- The habitual residence of the applicant, if the applicant has resided there for at least six months immediately before the application and is a national of the Member State in question; or
- Of the nationality of both spouses.
In summary, the fulfillment of any of the above connecting factors is sufficient to result in the (international) competence of Portuguese courts for that divorce proceeding.
Since Portuguese courts have international jurisdiction, does that mean Portuguese law will be applied?
Not necessarily.
This is because the spouses can agree to designate the applicable law to the divorce, within certain limits, according to Council Regulation (EU) No 1259/2010 of 20 December 2010, which establishes enhanced cooperation in the area of the law applicable to divorce and legal separation.
This agreement can be made and altered at any time until the date the proceedings are initiated in court.
In the absence of a choice of applicable law, the divorce will be governed by the law of the State:
- Of the habitual residence of the spouses at the date of the initiation of the proceedings in court; or, failing that,
- Of the last habitual residence of the spouses, provided that the period of residence has not ended more than one year before the initiation of the proceedings in court, to the extent that one of the spouses still resides in that State at the time of the initiation of the proceedings in court; or, failing that,
- Of the nationality of both spouses at the date of the initiation of the proceedings in court; or, failing that,
- In which the court where the proceedings were initiated is located.
Understanding the modalities, rights, and procedures of divorce in Portugal is essential to ensure a fair and clear process. If you need specialized legal assistance for any stage of the divorce process, our team is available to help.
For more information, please contact us.
