PORTUGAL Law and Practice Contributed by: João Perry da Câmara, Teresa Silva Tavares, Sofia Vaz Pardal and Joana Salazar Gomes, Rogério Alves & Associados
2.5 Prenuptial and Postnuptial Agreements
There is no concept of trusts in Portuguese leg - islation. Family courts encounter considerable difficulties when dealing with cases with inter - national connections involving trusts, even if the
In Portugal, only prenuptial agreements are rec - ognised. The courts fully apply prenuptial agree - ments. The only way to change the regime of assets after the marriage is through a judicial proceed - ing of separation of assets. 2.6 Cohabitation For unmarried couples, the only division of assets possible is 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 requesting the division of common property. After two years of cohabitation, in case of a relationship breakdown, the ex-cohabitants will acquire the right to use the marital home (wheth - er 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 If a party fails to comply with an order concern - ing alimony, the other party can ask for coercive fulfilment. For instance, the court can order that
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 main - tenance (Article 2016.º n.º 1 of the Portuguese Civil Code). Despite that, following the break - down of a marriage, either spouse has the right to request provisional maintenance from the other spouse, taking into consideration basic life needs. The party will have to prove the need or lack of capacity 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 with - out 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 cou - ple’s economy; • the age and state of health of the spouses; • their professional qualifications and employ - ment possibilities; • the time that they may have devoted to rais- ing children; and • their income and earnings, etc.
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