A Guide to Portuguese Family Law and Divorce
Portuguese family and child law legal procedures differ significantly from those found elsewhere in the EU or abroad.
In this feature, Nuno Cardoso-Ribeiro, a highly experienced Portuguese lawyer and a major voice in the legal representation of families and children, outlines some of the law’s unique facets, drawing on 20 years of experience in family law. What distinguishes divorce and family law in Portugal, and how is legislation in this area evolving today? In this feature, Nuno Cardoso-Ribeiro, a highly experienced Portuguese lawyer and a major voice in the legal representation of families and children, outlines some of the law’s unique facets, drawing on 20 years of experience in family law. What distinguishes divorce and family law in Portugal, and how is legislation in this area evolving today?
How does the divorce procedure usually work in Portugal?
The majority of divorce cases in Portugal are settled amicably, and the same is true for parental responsibilities laws. Both processes can be completed outside of the courts, in Civil Registry Offices, making them faster and less expensive. In such cases, the lawyer’s role is to act as a mediator, either alone or in collaboration with a colleague, to ensure an agreement that meets both parties’ demands and needs.
In a divorce, how are joint finances and property typically divided? How can a lawyer assist in ensuring a fair outcome?
Joint finances and property are typically divided 50/50, according to the so-called “rule of the half.” The most difficult challenge is ensuring that all joint assets are correctly identified and qualified in accordance with the applicable property regime.
As the saying goes, “the
time of the children is not the
time of the court”; they do not
follow one another.
It is also critical to confirm which debts were paid, which estate was responsible for their payment (one of the spouses’ own estate or the joint estate), and which estate effectively ensured the payment, as this may give rise to an entitlement to compensation between estates or between spouses. The same is true for other cases of compensation between spouses.
Nonetheless, the Portuguese legal system produces outcomes that are less favorable to the nonworking spouse (or the spouse with a lower income) than in other countries, because state pensions received after divorce cannot be shared, regardless of the property regime. Similarly, the conditions for recognizing ex-spouse spousal maintenance rights are quite stringent.
In Portugal, as in the vast majority of Western countries, parental international child abduction is primarily defined by the 1980 Hague Convention on the Civil Aspects of International Child Abduction – in short, an international child abduction occurs when a child is taken or retained across an international border, away from their habitual residence, without the consent of the parent(s) with custody. This definition is also referenced in the Brussels II Regulation, which adds important rules regarding the international competence of Member-State Courts.
In other words, even if the child usually lives with one of the parents, both parents must agree on where their child will live. Simply put, if we translated the Portuguese solution into the legal language used elsewhere, both parents would have a shared right of custody as a rule. Of course, this solution has a significant impact on parental international child abduction cases, as it makes almost any unilateral relocation or retention of the child outside their country of residence illegal, allowing the Hague remedies to be invoked.
Because state pensions received after divorce
cannot be shared, regardless of the property
regime, the Portuguese legal system produces
outcomes that are less favorable to the
non-working spouse
(or the spouse with a lower income)
than other countries.
Personally, I believe that the Portuguese legal solution has numerous advantages. The choice of a child’s country of residence should not be made lightly. After all, moving to a new country will have a significant impact on the child’s upbringing and development. It should never be used to keep one of the parents away from the child under any circumstances.
The delegation of decision-making power to both parents allows for greater control over the decision – and if the parents cannot agree on the intended change of residence, the decision will be made by a judge, better ensuring its adequacy to the best interests of the child.
It may also be difficult to manage expectations effectively. Sometimes clients expect results based on previous experiences in other jurisdictions that are simply impossible to replicate under Portuguese law. Indeed, many Portuguese legal solutions differ markedly from those prescribed by other European Union member states, let alone the United States or the United Kingdom – the different approach to the definition of parental responsibilities and spousal maintenance, to name a few examples.
In our office, over half our clients
are foreign or are involved in an
international affair.
Each year, how many parental international child abduction cases do you handle?
Despite the fact that Portugal is a small country, the Central Authorities register approximately 80 cases of international child abduction each year (divided into 40 children illegally retained in Portugal, and 40 children illegally taken abroad). Because of our extensive experience in the field, we handle a significant portion of these cases.
The best interests of the children are always prioritized at Divórcio & Famlia. We try to take a pedagogical approach to parents as much as possible, encouraging them to make compromises and collaborate with one another in order to protect their child’s interests. After all, while their relationship as a couple has ended, their relationship as parents and educators continues.
In order to raise awareness among other family lawyers about the importance of promoting children’s rights and harmonious development, as well as to provide the necessary skills and knowledge, I co-founded the Family and Children Lawyers Association (AAFC) on June 26, 2020.
As difficult as it is, it is extremely rewarding
to assist and advise people when they
are in need, while also ensuring
a fair outcome for the
children involved.
What is your opinion of the role of the child lawyer?
In addition to the ethical obligation of lawyers who participate in family and children court cases to represent children’s best interests, some of us are called upon to act as the child’s lawyer. This prerogative stems from the European Convention on the Exercise of Children’s Rights, which recognizes the child’s right to be represented by a lawyer in cases where the parents cannot represent the child due to a conflict of interests.
Our magistrates receive specific training to successfully lead the child’s hearing and work with the assistance and support of other specialized professionals, such as psychologists, doctors, and social workers, to minimize the triggering of feelings of anxiety and guilt in the children during the audit, namely the aggravation of loyalty conflicts between parents. As previously stated, we at the AFFC hope to provide our associates with equivalent training so that the children can be accompanied by their own lawyers at their hearing.
Nuno Cardoso-Ribeiro, Attorney
Av. Dom João II 35 5E, 1990-083 Lisboa, Portugal
Tel: +351 218 952 028 | +351 924 030 919
Nuno Cardoso-Ribeiro has worked as a divorce and family lawyer since 2000, and he is the co-founder and president of the Portuguese Association of Family Lawyers. He is also a member of the International Association of Family Lawyers (IAFL) and the Union International des Avocats (UIA) (UIA). Nuno is a frequent speaker on family and labor law at a variety of conferences and events, in addition to authoring numerous articles on divorce and family law that are regularly published in Portuguese national and regional newspapers. His practice is primarily focused on divorce and child custody matters.
Nuno Cardoso-Ribeiro manages the family and divorce law firm Divórcio & Famlia. Its team offers specialized legal assistance in divorce, asset division, child and custody arrangements, spousal maintenance, family home and inheritance issues, as well as a variety of other globally accessible family and divorce law services.
