PORTUGAL Law and Practice Contributed by: João Perry da Câmara, Teresa Silva Tavares, Sofia Vaz Pardal and Joana Salazar Gomes, Rogério Alves & Associados
1. Divorce 1.1 Grounds, Timeline, Service and Process In Portugal, a divorce can be decreed by mutual con ‑ sent or without the consent of one of the spouses. In the first situation, the parties do not have to disclose the reasons for the divorce. In the second situation, the grounds for divorce are established in Article 1781.º of the Portuguese Civil Code, as follows: • de facto separation for one consecutive year; • the alteration of the other spouse’s mental facul ‑ ties, when it has lasted for more than one year and, due to its seriousness, jeopardises the possibility of living together; • absence, without news of the absentee, for a period of not less than one year; or • any other facts which, regardless of the fault of the spouses, show the definitive breakdown of the marriage. The law does not establish different grounds for divorces between same-sex spouses. Portuguese law does not recognise civil partnerships, which is the reason why there are no grounds for ending this kind of relationship. If the divorce is by mutual consent, it can be requested in the Civil Registration Office and it will be decreed in two to three months, depending on whether there are minors. In a divorce without the consent of one of the spous ‑ es, the one that wants to divorce must file for that in court. One of the grounds for divorce is de facto separation for one consecutive year. When a spouse files in court against the other, that court will serve the other party. Catholic marriage has the same effect as a civil mar ‑ riage (Article 1587.º No 2 of the Portuguese Civil Code). All other religious marriages do not have a civil effect, which is the reason why, in these cases, a civil marriage is mandatory. Besides divorce, a marriage can be declared null and void by a decree issued by the court rendered in a
specific process and filed by any of the spouses or by someone who, according to Portuguese law, has the right to ask for it in the name of the spouse if they cannot do it by themselves. Depending on the grounds for the nullity of the mar ‑ riage, the application can be filed only within a cer ‑ tain period, namely, if the reason for the nullity is that one of the spouses is underage, until six months after reaching majority. If the ground for nullity is a lack of will or a vicious will, the deadline to file for the appli ‑ cation requesting nullity will be six months after the parties acknowledge the lack of will or the vicious will ceases. It is also possible to petition the court for judicial separation, but this does not end the marital bond; it only extinguishes the cohabitation duty. In relation to assets, the effects of judicial separation will be the same as divorce. It is important to emphasise that one year after the court decision rendering judicial separation final and binding, either of the spouses can judicially request that the separation be converted into divorce. 1.2 Choice of Jurisdiction in Divorce Proceedings As Portugal is a member state of the European Union, Regulation 2019/1111, dated 25 June 2019, must be applied to establish the international competence of a Portuguese court. Article 3 sets down the relevant connections for competent international jurisdiction, which mainly relate to the habitual residence and nationality of the spouses, even if they are a same- sex couple. According to the aforementioned Regulation, the con ‑ cept of residence is considered on a case-by-case basis. A person’s place of residence is where the cen ‑ tre of that person’s life is established, namely, where they work, live, have family, friends, etc. In a divorce, if one of the parties considers that the court that has been seized is not internationally com ‑ petent for the divorce, they can contest the jurisdic ‑ tion.
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