PORTUGAL Law and Practice Contributed by: João Perry da Câmara, Teresa Silva Tavares, Sofia Vaz Pardal and Joana Salazar Gomes, Rogério Alves & Associados
According to Article 17 of the Regulation, the court is seized when the document instituting the proceedings is lodged with the court or, if the document has to be served before being lodged with the court, when it is received by the authority responsible for service. To stay proceedings, a party can invoke that they have already filed for divorce in another jurisdiction. In this situation, and according to Article 20 of the Regula ‑ tion, the court where the process has been filed in second place will stay its proceedings until the juris ‑ diction of the court first seized is established. While divorce proceedings are pending and until the final decision, a party can ask for financial provisional measures: provisional alimony and provisional use of the marital home. In both cases, the party must allege the necessity of it, their weaker economic capacity, and the economic capacity of the other spouse to grant alimony and also to find a new house for them ‑ selves. If there are children, alimony for the benefit of the chil ‑ dren can be requested, with proof of the children’s needs and the economic capacity of the parent obliged to pay for it. 2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings A party can contest the international competence of a jurisdiction, if there are grounds for that: namely, that the court of another country has exclusive juris ‑ diction to decide about a certain type of assets – eg, real estate. In a lis pendens situation, the proceedings can be stayed until it is decided which court has jurisdiction. However, if the questions to be decided are differ ‑ ent and according to international rules, both states are internationally competent to decide on the issue presented to each one, the processes can run inde ‑ pendently.
After a foreign divorce, if the Portuguese court has international jurisdiction at the time of the filing, it can hear financial claims. For instance, following a divorce decreed in Spain, if both or one of the spouses comes to live in Portugal and, at some point, needs alimony, the Portuguese court can be internationally compe ‑ tent to decide on that. 2.2 Service and Process in Financial Proceedings Service in financial proceedings is always made by the court in which the process is filed. The process and the timeline for financial proceedings depend on the complexity of the situation and the need to translate documents, etc. For example, the processes in provisional and final ali ‑ mony are different, either in terms of procedural rules or the kind of proof required. The provisional process will take less time to decide. Another example is the process when one spouse seeks to end the maintenance obligation. This process will take longer, as it is necessary to prove that the sit ‑ uation justifying the maintenance obligation no longer exists: namely, the party obliged to pay alimony can no longer pay that amount or the party that receives alimony does not need it anymore. 2.3 Division of Assets On divorce, the assets will be divided according to the matrimonial regime. In Portugal, there are three main matrimonial regimes: • separation of all assets; • communion of all assets; and • communion of assets acquired after the marriage. Division will be necessary only in the communion regimes of assets. The rule is that the assets should be divided 50%–50% between the spouses. In the communion of all assets, there is a rule that, in divorce, none of the spouses can receive more assets in the division than they would receive if the marital regime was the communion of assets acquired after the marriage.
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