It is important to note that in this article, we are discussing the dissolution of a marriage arranged in the territory of the Portuguese Republic and in accordance with the Portuguese legislation. Divorce in Portugal can be carried out by mutual agreement in the Civil Registry Offices (Instituto dos Registos e do Notariado, IRN), or without the agreement of one of the spouses in court. In this article, we will discuss how to properly and in accordance with the law process divorce in Portugal.
Divorce by mutual consent in Portugal
According to Portuguese legislation, specifically Article 1773 of the Civil Code of Portugal, divorce can be of two types: amicable and contentious. Divorce by mutual consent occurs when both parties agree to the divorce and the division of their common property. The process is initiated at the request of both parties and is resolved fairly easily and quickly. However, if the spouses agree to the divorce by mutual consent but disagree on the division of their common property, the divorce will also be classified as by mutual consent and there will be no grounds for going to court. This type of divorce can be carried out both in the Civil Registry Offices and in court.
Let's start with divorce in the Civil Registry Offices. Spouses have the right to formalize their divorce in the Civil Registry Offices provided that they have previously agreed on the conditions for fulfilling their parental obligations towards their minor children (i.e. if the spouses have common children born in this marriage), their pets, as well as on the division of their common property acquired during this marriage. To initiate a divorce by mutual consent, spouses or their lawyers representing their interests must submit an application to the Civil Registry Offices along with a list of documents (all updates regarding the required documents for divorce can be checked on the official website of the Civil Registry Offices), such as:
- A request for the division of property by mutual consent (Um requerimento de separação de bens por mútuo consentimento);
- A list of all the couple's assets and their value (Uma lista de todos os bens do casal e dos seus valores). It is worth noting that this document is submitted to ensure that the Civil Registry Offices are confident that none of the spouses will be disadvantaged when the marriage is dissolved and assets are divided;
- A certificate of the court decision or a document certifying the agreement between the spouses on how parental rights will be exercised towards their minor children (Uma certidão da sentença judicial ou um documento que comprove que o casal está de acordo sobre a maneira como vai ser feito o poder parental sobre os filhos menores de idade). However, if the spouses do not have any common minor children, such confirmation is not required;
- A document establishing the mutually agreed amount of alimony both for minor children and for one of the spouses (Um documento que estabeleça o valor acordado entre o casal para a pensão alimentícia);
- A document specifying what will happen to the family home (Um documento que informe o que acontecerá com casa onde a família mora);
- A certificate of the marriage agreement between the spouses, if this document was not established and registered in the presence of a Civil Registry Offices employee (Uma certidão do acordo pré-nupcial feita pelo casal, caso o acordo não seja estabelecido na presença de um funcionário do registro civil).
In the case of divorce by mutual consent, spouses can carry out the entire process of dissolving their marriage on their own (i.e., without the involvement of lawyers) through the Civil Registry Offices. To help our readers prepare the necessary documents for divorce by mutual consent, we have compiled examples of statements that will need to be submitted to the Civil Registry Offices to perform this civil act:
- A statement of divorce by mutual consent;
- An agreement on the division of common immovable property where the spouses lived;
- An agreement between spouses on fulfilling their parental obligations towards their minor children;
- An agreement between spouses on alimony.
As mentioned earlier, the process of divorce by mutual consent in the Civil Registry Offices is quite straightforward. A representative of the Civil Registry Offices calls the spouses to a meeting where they check compliance with Portuguese law and assess the agreements reached regarding the common home, parental obligations, alimony, and other jointly acquired movable and immovable property. If the representative of the Civil Registry Offices understands that all the interests of the spouses are protected, they make a decision to grant the divorce. However, if one of the spouses or their official representative disagrees with something, then the decision of the Civil Registry Offices representative can be appealed. In this case, the case will be submitted for consideration and final decision to the Court of Appeal (Tribunal da Relação) of the region where the spouses are registered. If one of the spouses is outside of Portugal when they are called to the meeting, the Civil Registry Offices must be notified in advance. In such cases, the meeting on the divorce by mutual consent will be postponed for a period not exceeding 30 days. However, if one of the spouses fails to appear at the meeting with the representative of the Civil Registry Offices and does not notify them in advance, the divorce process will be suspended until a new date is chosen. If the spouse fails to appear again, the process of divorce by mutual consent will be canceled by the representative of the Civil Registry Offices.
Both marriage registration, divorce, and the division and new registration of property require certain financial costs. The cost of the divorce service, the division of common property, and its new registration will cost former spouses €625. It should be noted that this amount may increase depending on the amount of property that needs to be divided and registered. In addition, the amount of this service provided by the Civil Registry Offices does not include the state tax.
It is worth noting that in case the spouses part ways by mutual agreement, but without dividing their property, simply because they have nothing to divide, then the cost of divorce in the civil registration services will be €280, excluding the state tax. If the spouses are considered economically vulnerable and do not have any common property that needs to be divided, then they can register their divorce in the civil registration services for free. To do this, they will need to prove their inability to pay. In other words, when divorcing by mutual agreement, the civil registration services employee should provide a document issued by a competent administrative body, such as the district administration, or a certificate from the Social Security Institute (Instituto da Segurança Social), indicating that the spouses are economically vulnerable.
In addition to the fact that divorce by mutual consent can be carried out through the civil registration authorities, this type of termination of marriage is also possible through the intervention of a state authority such as a court. Divorce by mutual consent is formalized through the court if the spouses agree to divorce but have not reached a consensus on one or more of the following issues: regulation of parental responsibilities, regulation of obligations towards shared pets, division of shared immovable property in which the spouses lived, determination of alimony, division of shared property acquired during the years of marriage. Such divorce by mutual consent will be considered by the judge as a divorce without consent.
Divorce without the consent of one of the spouses in Portugal
In the absence of agreement between the spouses regarding the decision to live separately and the violation of marital rights and obligations, one of the parties may need to initiate a contested divorce process in court. Portuguese legislation assumes that no one should remain in a marriage against their will and/or in the event of a breakdown in emotional ties. Thus, according to Article 1781 of the Portuguese Civil Code, if one of the spouses believes that their marriage does not meet the conditions of affectivity and emotional balance, as well as violates physical and/or mental equability, they may demand the dissolution of the marital relationship even against the will of the other, if it is possible to prove one of the following reasons:
- actual separation of the spouses for a period of not less than one year (This implies the absence of joint living between the spouses and at the same time the desire not to restore it on the part of both or one of the spouses. Such a lifestyle between spouses must be observed systematically for at least one year);
- the change of mental abilities of the other spouse, which lasts more than a year and, due to its seriousness, threatens the possibility of joint healthy living of the spouses;
- absence of the other spouse, without any known information, for at least one year;
- any other facts indicating the final dissolution of the marriage.
This type of divorce falls within the jurisdiction of the Family and Minors Court (Tribunal de Família e Menores) at the residence of the applicant. Unlike divorce by mutual consent, which even in court does not require hiring a lawyer, in a divorce process without consent, it is a mandatory requirement without which divorce through the court will be impossible. If you find yourself in such a situation, we advise you to seek the help of lawyers and attorneys who will help you deal with difficult situations. If one of the members of the couple is unable to pay for these services, they may seek legal assistance from the Social Security Institute (Instituto da Segurança Social). After the initial petition has been filed (a document containing the facts on which the divorce application is based) and if the lawsuit has been accepted for consideration, the judge sets a date for a mandatory reconciliation attempt. The judge organizes this meeting only if one of the spouses is not accused of practicing domestic violence against the other spouse. If the respondent agrees to the divorce, the judge tries to obtain the spouses' consent to divorce by mutual consent. If they cannot come to an agreement, the decision to dissolve the marriage is made by the judge.
In a situation where the spouses have common children and divorce occurs without mutual consent, the conclusion of an agreement regulating the performance of parental responsibilities towards minor children is an essential element without which the end of the divorce process is impossible. If such an agreement cannot be reached by mutual consent, then the court unilaterally decides how each of the spouses should fulfill their parental responsibilities.
In turn, in the case of divorce without mutual consent, the division of property can be carried out by agreement between the spouses, if any, or through the intervention of a court bailiff. The same applies to family real estate in which the spouses lived. The division of the common living space may occur by mutual agreement between the spouses. If this does not happen, then the court unilaterally resolves this dispute taking into account the interests of the children, the economic situation of the spouses, their health, age, professional capacity, among other aspects. It should be noted that these factors are not applied hierarchically, but the interests of minor children (if any in the family) and the economic opportunities of the former spouses undoubtedly prevail. But what happens when the property in which the spouses lived belongs to one of the spouses? Then the property is rented out, and the amount of rent and other terms of the contract, such as the term, will be determined by the court unilaterally.
In conclusion of this section, we would like to discuss the topic of alimony for one of the spouses in the event of divorce. The spouse who requests alimony from the other must prove their financial needs and show that the other spouse is able to pay them. There is no mathematical criterion for determining the amount of possible alimony. The court, when appointing alimony, will take into account the duration of the marriage, the contribution of the spouse who is requesting alimony to the economic component of the family, age and health status, profession, work experience, etc. If the judge appoints the payment of alimony from one spouse to another, they can be terminated if the spouse who receives alimony enters into a new marriage or finds a job and is able to provide for themselves. In addition, alimony payments are terminated due to unworthy behavior, including moral behavior.
In a joint ownership regime, payment obligations always fall on both spouses. However, not all debts in a divorce can be considered common, even if they appeared in the common property regime, namely:
- the acquisition of expensive jewelry by one of the spouses without the consent of the other;
- debts incurred as a result of certain offenses;
- compensation, legal costs, and fines due for acts committed by one of the spouses.
For such debts, the spouse who caused them is responsible. For their repayment, the property of this spouse, as well as half of the property acquired in the joint ownership regime, will be used.
When spouses terminate their marriage, they have the right not to divide the jointly acquired property in the regime of joint ownership, but to sell it. If one of the former spouses wants to keep this property, they buy out the share from the other spouse. Profit from the sale of a house will not be taxed if this amount is reinvested in another permanent residence. If one of the spouses who received a profit from the sale of their share of the property does not reinvest the capital gain, they will have to pay a tax on the profit. If you would like to learn more about this topic, we recommend that you contact an accounting specialist. If the spouses have a mortgage loan that was arranged in the regime of joint ownership, banks are prohibited from raising the interest rate on the mortgage loan when the divorce process is being arranged. In this case, the borrower of this type of loan will only need to prove that their income has significantly decreased due to the termination of the marriage.
Compensation and damages in the event of a divorce
The sacrifice of personal life by one spouse for the benefit of the marriage may entitle them to compensation in case of divorce. For example, when one spouse leaves their job to take care of the home and children during the marriage. Portuguese law provides for compensation in case of divorce. The compensation amount is determined by the court and should cover the losses that the spouse potentially suffered when leaving their job to take care of the home and children, in order to allow them to maintain a decent standard of living for the first period of time until they can find a job and support themselves. It should be noted that such compensation cannot be claimed from the other spouse during the marriage.
And in the conclusion of this informative article, we would like to wish our readers good luck!
Translated from Ukrainian by Rodion Shkurko