PORTUGAL Law and Practice Contributed by: João Perry da Câmara, Teresa Silva Tavares, Sofia Vaz Pardal and Joana Salazar Gomes, Rogério Alves & Associados
In Portugal, assets can be divided only after the divorce. Division can be made by agreement or by judicial proceeding. In a judicial proceeding, the court considers all of the assets (assets and liabilities) and determines the amount each spouse will be entitled to. The parties should inform the court of their assets and liabilities, but there is no disclosure process. However, if one party considers the other to be hiding assets, they can claim that. The party making the claim should provide proof of the existence of the hidden assets. The court has limited powers regarding disclosure. In relation to third parties, a rule states that everybody should co-operate with the court when asked to do so. The court can ask for bank secrecy to be lifted. There is no concept of trusts in Portuguese legisla ‑ tion. Family courts encounter considerable difficulties when dealing with cases with international connec ‑ tions involving trusts, even if the court has to apply a foreign law. 2.4 Spousal Maintenance In Portugal, the rule is that, after the divorce, each spouse should provide for their own maintenance (Article 2016.º No 1 of the Portuguese Civil Code). Despite that, following the breakdown of a marriage, either spouse has the right to request provisional maintenance from the other spouse, taking into con ‑ sideration basic life needs. The party will have to prove the need or lack of capac ‑ ity to provide for their own needs and the capacity of the other spouse to provide maintenance. Provisional maintenance can be requested by the party, or the court can make the determination. A spouse can also ask for final maintenance, alleging that they have no means to survive without it. Under Article 2016.º-A of the Portuguese Civil Code, the court will take the following into consideration: • the duration of the marriage; • the contribution of that spouse to the couple’s economy; • the age and state of health of the spouses;
• their professional qualifications and employment possibilities; • the time that they may have devoted to raising children; and • their income and earnings, etc. 2.5 Prenuptial and Postnuptial Agreements In Portugal, only prenuptial agreements are recog ‑ nised, and are fully applied by the courts. The only way to change the asset regime after the marriage is through a judicial proceeding of separa ‑ tion of assets. 2.6 Cohabitation: Division of Assets Between Unmarried Couples For unmarried couples, division of assets is only pos ‑ sible where the assets were acquired by both of them. In this case, there is a co-ownership, and with the breakdown of the relationship, each of the co-owners can make a specific application to the court request ‑ ing the division of common property. After two years of cohabitation, in case of a relation ‑ ship breakdown, the ex-cohabitants will acquire the right to use the marital home (whether it is rented or belongs to the other or to both). Also, after the death of one of the cohabitants, the other has the right to use the family home for a period of five years. After this period, they can still live in the family house as a tenant. If the house is to be sold, the cohabitant has a preferential right in the sale of the house under the same conditions as the buyer. Cohabitants are not heirs of each other. If they have children, they must regulate the exercise of parental responsibilities in the same way married couples do. 2.7 Enforcement of Financial Orders If a party fails to comply with an order concerning ali ‑ mony, the other party can ask for coercive fulfilment. For instance, the court can order that the amount due should be paid directly by the employer to the creditor. The international enforcement of financial orders, namely concerning alimony, is permitted in Portugal. Specifically, Portugal has to apply Regulation (EC) No
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