Portuguese family and succession laws recognise two models of couple's relationships:
MARRIAGE between persons of different or same sex
DE FACTO PARTNERSHIP between persons of the same or different sex
In the constitutional sphere, it is necessary to cite aArt. 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, allows for civil marriage between persons of the same sex, Portugal there is law on de facto couples at state level.
Portugal regulates marriage between persons of different or same sex, and civil union is recognised between persons of the same or opposite sex since 2001. In addition, by the Constitutional Court ruling of 192/2010 of 8 April equated same-sex marriage to civil marriage between people of different sex. Since 2016, the same sex couples (marriage and de facto partnership) can adopt. For this, there are no discriminatory rules.
Links to applicable regulations
MARRIAGE: Civil Code (Book IV, Arts. 1576-2023), Civil Registry Code, Arts. 201A-201R
DE FACTO PARTNERSHIP: Law 7/2001 of 11 May 2001, as amended by Law 23/2010, on the protection of domestic partnership (last amendement by Law 71/2018 of 31 December)
The first law that systematically regulated unregistered domestic partnership was Law 135/1999, of 28 August, repealed by the current Law 7/2001 of 31 May.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: the Law 9/2010, of May 31 allowing civil marriage between people of the same sex, amended Arts. 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 persons of opposite sex, except for the possibility of adoption, which was also forbidden to domestic same-sex partnerships; more recently, the 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).
SUCCESSION: Civil Code (Book V, Arts. 2024-2234)
There is the principle of freedom of choice of the matrimonial property regime before the celebration of the marriage, and the immutability of the same once it has been celebrated. In the absence of a prenuptial agreement or its invalidity, the supplementary legal regime is that of the community of acquired property (marital property). Divorce is not culpable and is decreed essentially to recognize the rupture of cohabitation, by mutual agreement or in a contentious manner.
The Portuguese Civil Code provides for three types of matrimonial property regimes. Communion of acquired assets is the supplementary legal regime. Its basic description indicates that after the date of the marriage the gains or benefits obtained indistinctly by either of them become common to the spouses, which will be attributed to them by half when the community is dissolved. In this way, the community's patrimony is made up of the product of the spouses' work and the assets acquired for valuable consideration in the marriage certificate, which are not exempt by law, while the assets of each of the spouses are considered to be those that each of them has at the time of the celebration of the marriage, those that they receive free of charge (donation or succession) and the assets acquired in the marriage certificate by virtue of their own right prior to the date of the same. General community of assets means that the common patrimony is constituted by all the present and future assets of both spouses, regardless of whether they are acquired for a fee or free of charge, before or after marriage. It should be noted that, in the event of divorce, neither spouse may receive in the distribution more than he or she would receive if the marriage had been celebrated under the communion of acquired regime. The general communion of property regime cannot be chosen for marriage when the bride and groom already have uncommon children. In separation of assets there is no communion of any property, whether acquired for valuable consideration or free of charge, before or after marriage. Each retains control of all his property, present or future. The law imposes the imperative regime of separation of property when the marriage has been celebrated without organization of the preliminary marriage process or when one or both of the clouds have already reached the age of 60. Likewise, in order to make use of the possibility introduced by Law 48/2018 of 14 August to establish reciprocal renunciation of the status of legitimate heir in the antenuptial convention, it is obligatory to agree on the separation of property. Finally, in addition to the three regimes described above, the freedom to establish antenuptial pacts allows the creation of agreement-based atypical property regimes, with the characteristics of the three models described above, provided that the imperative norms are respected, mainly with a view to not harming third parties and other interests protected by the legislator.
In the succession law Art. 13 of the Constitution 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.
There are some precepts with successive or interpretative transcendence. This is the case of pacts of succession regulated by family law (Arts. 1700 et seq. of the Civil Code), or donations due to death (Art. 946 of the Civil Code), 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 82-88 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.
DE FACTO PARTNERSHIP
The regulation of domestic partnership is contained in a special law on the recognition of some effects in case of cohabitation of two persons in a relationship analogous to the conjugal, without the need for registration.
The Law 7/2001 of 11 May 2001 recognises certain civil effects of de facto partnerships, but far from being equated with marriage. It defines partnership as the legal status of two persons who, regardless of their sex, have been living in conditions analogous to marriage for more than two years (Art. 1). When it is necessary to prove their legal status (for employment, tax purposes, rent, adoption, etc.), all means of proof admitted in law may be relied on, highlighting the possibility that cohabitants can make a sworn statement before a local administration, the "junta de freguesia" (Art. 2).
More recently, the 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 in this topic is now full.
* * *
The Law no. 6/2001, of 11 May 2001, provides for the measures for the protection of persons living in the "common economy" defined as the situation of persons who live in communion of table and room for more than two years and have established a common coexistence of mutual aid or pooling of resources (art. 2). It applies to households made up of two or more persons, provided that at least one of them is of legal age. As regards the scope of application, Art. 1 clarifies that this is a system of protection for people living in a common economy, but that it does not prejudice the application of other legal provisions dedicated to the protection of domestic partnership, nor does the application of the Law 6/2001 prevent the fact of cohabitation in a domestic partnership.