Family Law in Portugal
Family law in Portugal is governed by the Civil Code and other related laws, which regulate matters such as marriage, divorce, child custody, adoption, inheritance, and domestic violence. Portugal has a progressive legal framework that emphasizes equality, children's rights, and the protection of individuals, especially in areas of domestic violence and family protection.
Here is an overview of the key aspects of family law in Portugal:
1. Marriage
Legal Framework
Marriage in Portugal is regulated by the Civil Code, which recognizes both civil and religious marriages (if they are also legally registered). Both types of marriage are legally binding in Portugal, but only civil marriages have automatic legal recognition.
A marriage certificate is required for the legal recognition of a marriage, and it must be registered with the Civil Registry.
Minimum Age for Marriage
The minimum legal age for marriage is 16 years. However, those under 18 years need parental consent or court approval to marry.
Child marriage has become rare and is subject to scrutiny, with efforts to prevent early marriage through legal reforms.
Marriage Contracts
Couples can sign a prenuptial agreement to decide how their property will be divided in case of divorce. In Portugal, there are different property regimes, and couples can choose from:
Community of Property: All assets acquired during the marriage are jointly owned by both spouses.
Separation of Property: Each spouse maintains individual ownership of assets, with little to no shared ownership of property.
Partial Separation of Property: A hybrid of the previous two systems, where some assets are jointly owned, and others are separate.
2. Divorce
Grounds for Divorce
No-Fault Divorce: Portugal has a no-fault divorce system, meaning that neither spouse needs to prove fault (such as adultery or cruelty) to file for divorce. The grounds for divorce can include:
Irretrievable breakdown of the marriage.
Separation for a certain period (at least one year if both parties agree, or two years if one party initiates the divorce).
Divorce Procedure
Mutual Agreement: If both spouses agree to divorce and the terms (such as property division and child custody), the process can be straightforward and quick.
Contested Divorce: If the divorce is contested, it may involve lengthy court proceedings where the court will make decisions about asset division, child custody, and other matters.
Division of Property
The division of property is based on the marital property regime agreed upon by the spouses at the time of marriage. If no regime is agreed upon, the default system (community of property) applies.
In divorce, property acquired during the marriage is divided equitably. Each spouse has the right to a fair share of the marital assets, and the court will consider factors such as the contribution of each spouse to the family and the care of children.
3. Child Custody and Support
Custody
The best interests of the child are paramount in all decisions regarding child custody. Portugal generally favors joint custody, where both parents share responsibility for their child's upbringing and decision-making.
Sole custody can be awarded to one parent if joint custody is not in the best interests of the child, particularly in cases of abuse or neglect.
Parents can agree on the custody arrangement or have the court decide if there is a dispute.
Child Support
Both parents have a duty to provide financial support for their children. The amount of child support is typically determined by the court, based on the income of the parents and the needs of the child.
The court can issue an order for child support, and non-payment can be enforced through legal measures.
Support typically continues until the child reaches the age of 18, or longer if the child is still in education (up to age 25 in some cases).
4. Adoption
Eligibility for Adoption
Adoption in Portugal is governed by the Adoption Act and can be carried out by individuals or couples (heterosexual or same-sex).
Applicants must be at least 18 years old and at least 16 years older than the child they wish to adopt. There are also medical and psychological assessments to ensure the adoptive parents are fit to raise a child.
Types of Adoption
Full Adoption: The adopted child is fully integrated into the adoptive family and is legally treated as the child of the adoptive parents, with all associated rights and responsibilities.
Open Adoption: In some cases, an open adoption may be agreed upon, where the birth parents have some level of contact or knowledge about the child’s life.
Adoptive Parents' Rights
Once the adoption is finalized, the adoptive parents assume all parental rights and responsibilities over the child, and the child is entitled to inherit from them as a biological child.
5. Inheritance
Intestate Succession (Without a Will)
If a person dies without a will, intestate succession rules apply. In this case, the estate is divided among the deceased's spouse, children, and sometimes parents or siblings.
The surviving spouse and children typically inherit the estate, with the spouse receiving one-third of the estate and the children sharing the remainder equally.
Testamentary Succession (With a Will)
Wills are legally recognized in Portugal, and individuals can determine how their estate is divided upon death. However, certain family members (such as children and spouses) are entitled to a forced share under inheritance laws, meaning they cannot be completely disinherited unless specific legal grounds are met.
6. Domestic Violence and Protection Orders
Domestic Violence Law
Domestic violence is treated seriously under Portuguese law. The Law on Domestic Violence allows victims to seek protection orders, and the court can issue an order to prevent the abuser from contacting or approaching the victim.
Victims of domestic violence are entitled to legal protection, including shelter, medical care, and psychological support.
Support for Victims
Portugal has a comprehensive system of support services for victims of domestic violence, including hotlines, shelters, legal aid, and psychological counseling.
7. Same-Sex Unions
Same-Sex Marriage
Same-sex marriage has been legal in Portugal since 2010, following the passage of the Law on Same-Sex Marriage. Same-sex couples in Portugal have the same legal rights and responsibilities as heterosexual couples, including the right to adopt children and inherit property.
Registered Partnerships
Prior to the legalization of same-sex marriage, Portugal recognized registered partnerships for same-sex couples. These unions provided many of the same legal rights as marriage, but the introduction of same-sex marriage made registered partnerships obsolete for new couples.
8. Alimony (Spousal Support)
Spousal support (or alimony) can be awarded in cases where one spouse is financially dependent on the other after divorce. The amount and duration of support are determined based on factors such as:
The financial needs of the dependent spouse.
The ability of the paying spouse to provide support.
The length of the marriage and the standard of living during the marriage.
9. Surrogacy and Reproductive Rights
Surrogacy
Commercial surrogacy is prohibited in Portugal. However, altruistic surrogacy (where the surrogate is not paid beyond covering reasonable expenses) is allowed under strict conditions.
The intended parents must undergo a legal process to establish parentage and ensure the surrogacy arrangement is ethical.
Assisted Reproductive Technologies
IVF and other forms of assisted reproduction are available in Portugal. The country has progressive laws regulating assisted reproductive technologies, ensuring that individuals and couples can access fertility treatments.
Egg donation, embryo donation, and sperm donation are permitted, but there are specific legal requirements and ethical guidelines in place.
Conclusion
Family law in Portugal is characterized by a strong focus on equality, children's rights, and the protection of individuals, including provisions for domestic violence and family protection. The legal system is progressive, recognizing same-sex marriage, reproductive rights, and gender equality in family matters. Portugal offers a legal framework that balances modern family dynamics with strong protections for the vulnerable, including children and victims of domestic abuse.
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