FAMILY LAW: Portugal regulates two models of couple's relationship:
- MARRIAGE between persons of different or same sex:
The current Portuguese Civil Code was adopted on 25 November 1966 and entered into force on 1 June 1967, repealing the well-known "Seabra Code" of 1867 (in force from 1868). This is the principal main source of family law rules is Book IV of the Civil Code devoted to "Family Law", articles 1576 to 2023.
The first in-depth reform of Portuguese family law as a whole took place in 1977, in the light of the constitutional principles contained in the Constitution of the Portuguese Republic, amending the Civil Code to establish full equality of rights and duties between spouses - in particular, eliminating limitations on the civil capacity of women and abolishing the dotal regime - enshrining non-discrimination against children born out of wedlock, recognizing adoption as a source of family legal relations, setting the age of majority at 18 and the public age at 16. Likewise, and for the first time, express reference is made to domestic partnership, in that case, in order to recognize, in succession, a right to maintenance for the surviving member of a domestic partnership. On this last aspect.
- CIVIL UNION between persons of the same or different sex:
Portugal there is law on de facto couples at state level.
The first law that systematically regulated unregistered domestic partnership was Law 135/1999, of 28 August, repealed by the current Law 7/2001 of 31 May.
Subsequently, more significant reforms were made to the Civil Code and special laws have been enacted with special impact on family law, of which we can highlight:
-Law 9/2010, of May 31 allowing civil marriage between people of the same sex, altered articles 1577, 1591 and 1690 of the Civil Code. It was considered constitutional by the Constitutional Court ruling of 192/2010 of 8 April. The original wording equated same-sex marriage to civil marriage between people of different sex, except for the possibility of adoption, which was also forbidden to domestic partnership of people of the same sex.
- More recently, Law 2/2016, of 29 February, eliminates discrimination in access to adoption, civil sponsorship and other family legal relations by altering Laws 7/2001, of 11 May, 9/2010, of 31 May, the Civil Registry Code and Decree-Law 121/2010, of 27 October, in such a way that the equalization of the effects of marriage is now full.
Consequently, the law currently in force is at present, the Law 7/2001 of 11 May 2001, as amended by Law 23/2010, on the protection of domestic partnership (last version given by Law 71/2018 of 31 December).
An important Portuguese doctrinal sector continues to attribute the condition of a parafamily relationship of domestic partnership. Sociologically, it seems that domestic partnership cannot continue to be denied the status of family situation, and from a legal point of view, the Constitutional Court, while maintaining that domestic partnership do not share the same nature of the family, does not prevent the ordinary legislator from providing effects to the conversion characterized by affection and the duties of respect and cooperation among its members.
This does not affect yours rights, because doctrine and jurisprudence agree that the rules of matrimonial property regimes cannot be applied analogously to economic relations between de facto cohabitants. In any case, it is worth mentioning the jurisprudential current that, in cases of rupture of de facto couples, in order to compensate the cohabiting member whose patrimonial capacity has been diminished by the time dedicated to the family during the cohabitation, applies the rules of enrichment without cause. This is the case of the Sentence of the Superior Court of Justice of October 24, 2017.
Law 7/2001 recognizes the effects of domestic partnership in the areas of adoption, asylum and immigration, taxation, social benefits, social security and the right to work.
Finally, Portuguese law does not contain any special provisions on property relations between unmarried couples. The general provisions of the Civil Code on obligations apply. And residual unregistered cohabiting partnerships still exist, even if not regulated.
In the constitutional sphere, it is necessary to cite article 13, which recognizes the principle of equality, insofar as it has allowed the elimination, in the 1977 reform of the Civil Code, of discrimination referring to the sex of spouses, as well as of non-marital filiation as opposed to matrimonial filiation. It has also made it possible to amend the Civil Code by Act No. 9/2010 of 31 May 2010, which allows for civil marriage between persons of the same sex.
The main source of Portuguese inheritance law is Book V of the Civil Code dedicated to Inheritance Law, articles 2024 to 2234. With the exception of some modifications introduced in the regime of undignified inheritance in 2013 (Law approving the legal regime of the inventory process), and the reform on the inheritance rights of widowed spouses by Law 48/2018, Portuguese inheritance law has remained unchanged since the 1977 reform.
It is necessary to cite, still within the Civil Code, but outside Book V, some precepts with successive or interpretative transcendence. This is the case of pacts of succession regulated by family law (articles 1700 et seq.), or donations due to death (article 946, and even the general rules of interpretation of legal transactions that can be applied, as appropriate, to wills.
In addition, the rules of the Code of Civil Procedure relating to inheritance lying for the benefit of the State must be taken into account.
The Notarial Code regulates in its articles 82 to 88 the public deed of habilitation of heirs, as well as the approval, deposit, restitution, and opening of closed wills and international wills, in addition to other rules relating to wills or affecting the renunciation of inheritances or legacies.
The Civil Registry Code, articles 201 A to 201 R that regulate the simplified procedures of hereditary succession.