Key Benefits:
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Draft Law No 509 /X
Amendments to the Legal Regime of Divorce
Exhibition of reasons
I. Freedom of choice and equality of rights and duties between spouses,
affectivity at the centre of the relationship, full communion of life, cooperation and mutual support
in the education of the children, when there are, here are the fundamentals of marriage in our
societies.
A logical extension of this enunciation of principles is the acceptance of the
divorce and the management held accountable and collectively taken from its consequences.
In effect, and by deriving from the principle of freedom, no one should remain married
against your will or if you consider that there was breaking of the affective bond. The spouse
treated unevenly, unjust or that attest against their dignity must be able
end the marital relationship even without the will of the other. The invocation of the rupture
definitive of life in common must be sufficient grounds for divorce to be
be enacted.
Nevralic point is also, however, the one that refers to the consequences
of the divorce above all when there are minor children. Having as a fundamental one,
in this plan, the rights of children and the duties of parents, and assuming the reality of the
clear differentiation between marital relationship and parental relationship, the exercise of the
parental responsibilities must be stipulated in such a way that the child can maintain
deep affective relationships with the father and with the mother, as well as being the target of care and
protection on the part of both in order to safeguard their superior interest.
The principles behind enunciated seem today both simple and universally truthful
acquired. They are not, however, either when we compare ourselves with other societies,
want when we think of the Portuguese history of the twentieth century. How it is known exist
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still many societies in which there is no freedom of choice of the spouse and the status of
inferiority of women in marriage gives way to serious violations of rights
humans.
As for the Portuguese case, in 1910, with the Laws of the Family, Portugal took over
pioneering the being after Norway in 1909, the second European country to be consecrating the
divorce by mutual consent, in the widest scope of the legislation that enshrined the
separation of the Church and the state and compulsory civil marriage. But, as is known,
years later check back on the principles then applied. Between
1940 and 1975, and through the signing of the Concordata with the Holy See, extended to the law
civil the canonical right and the indissolubility of the marriage situation that prevented the
divorce for the unsuccessful Catholic marriages.
But modernity rests on the transformative idea of the capacity of each
individual and in the search for the translated personal achievement, in the plan of the marriage, in the
enhancement of affective relations at the expense of institutional impositions and in the
bet on individual well-being as a necessary condition for family welfare.
Such a reappointment of Portugal with modernity was only possible, in the legislative plan, the
departure from the April 25, 1974, with the Decree-Law No. 261/75 of May 27,
consequent to the Additional Protocol to the Concordata that made divorce possible for
the Catholic marriages and, later, with the revision of the Civil Code by the Decree-Law
n. 496/77 of November 25. In 1995, 1998 and in 2001 were held some
adjustments to suit the legal architecture to the reality of social life and deep
transformations that were going to occur not only in Portugal but all over Europe and, of
generic form, in developed societies. But just as in most countries in the
European Union, which has known vast reforms in the family law plan,
imposes now wider change as well in Portugal.
The bill that presents itself intends to resume the renewing spirit, open
and modern that it marked almost a hundred years ago to I Republic, adept at the law of Divorce
to the twenty-first century, to the realities of modern societies.
The project, drawn up from work to the effect carried out by the
Professors Guilherme de Oliveira and Anaul Torres, seeks to converge with legislation
more recent and with the one that beams in most European countries, as it may be
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conferred in the publication Principles of European Family Law Divorce and
Maintenance Between Former Spouses, book that is a product of the activity of the CEFL,
Comission on European Family Law in which Portugal also participates . Takes over
this change in three fundamental plans. In the first place, it eliminates the guilt as
foundation of the divorce without the consent of the other, as it occurs in most of the
laws of the European Union and broaden the objective grounds of the rupture
conjugal. The abandonment of the foundation of guilt is, incidentally, point of convergence in the
european legislation as one can read in the piece behind it cited: " The elimination to any
reference to guilt is consistent with the evolution of law and practice in legal systems
analyzed Europeans. In many of these systems the blame has been abandoned. Even the
few that in a partial way keeps it often in practice have evolved in the direction
of the divorce without guilt. From any of the modes it is difficult to assign blame only to one of the
spouses " (in Boele-Woelki et al. (2004), Principles of European Family Law
Regarding Divorce and Maintenance Between Spouses , Commission on
European Family Law, Antwerp-Oxford, Intersentia, p.55).
Second, it explicitly takes the concept of responsibilities.
parenting as a central reference, thus clearly sidelining the designation today
unadjusted from "parental power", at the same time as it defines the change in the system
supplement to the exercise of parental responsibilities by still considering their
default as a crime. Finally, and recognized the importance of input
for marital and family life of care for children and work expended in the
home, devotes itself for the first time in the law and in situation of marital dissolution, which
there may be a place to a compensation credit in a situation of manifest inequality
of these contributions.
In Part II of this statement of reasons enunciates more technically the
major changes. Looking at it now, a little bit more closely, for the transformations
social media that substantiate the proposals submitted.
1. The realities of modern societies to which reference is made are resulting
of rapid changes and so are even likely to produce perplexity and
interrogations. In the Portuguese case increased reason there are for those doubts. If in the largest
part of the European countries the set of transformations that directly affect the
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how to face and to live marriage and family get started from the 60 of the
twentieth century, in Portugal such processes were only gaining visibility more
notorious from the principle of the 80. Divorce has only started to increase more
significant in Portugal after 1975 for the reasons already mentioned. After a
moment of high numbers that corresponded to the regularization of situations
previous to the law. The evolution is as follows: in 1970, 508; 1980, 5843; 1990, 9216; 2000,
19104; 2006, 23935 (INE, Demographics Statistics).
It is then here about more late transformation processes, shared with
other countries in Southern Europe, which do not leave however to orient themselves in the direction of
more general trends. With effect, when you study more closely these realities
concluded, perhaps contrary to the visions of common sense, that the Portuguese if
approximate much, in their practices and in their representations, of the other Europeans.
We can identify these positions, in the plan of marital life, as an integral part of
three major movements that were occurring in the course of the twentieth century and, more
particularly, in its last forty years: sentimentalization, individualisation and
secularization.
1.1 To identify the process of the sentimentalization suffice to analyze
diacronically the practices of marital and family life in the last decades to
inevitably conclude that the affections are at the heart of the marital relationship and the relationship
parents-children. Not excluding the existence of other important dimensions of the
conjugality and family life, such as the contractual dimension, the economic and the
heritage, which obviously is also necessary to take into consideration, is however
undeniable to be the affective dimension the founding and central core of marital life. How much
to family relationships between parents and children was becoming increasingly clear that welfare
psycho-emotional of the latter went on to be in the foreground.
Proof of what is stated and evident signal of sentimentalization are the results
of a Survey of Europeans showing that the family, first of all, soon followed
of friends and leisure, are their main priorities when they respond to what is
important in the life of each. Curiously, and also perhaps unlike some
expectations, there are no significant differences between countries as to this
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prioritization, which translates, for certain, a true valuative consensus in the plan
European.
It is the fact that the affective dimension of life has become so decisive for the good-
be of the individuals that confers on the particular embossed conjugality. Being this decisive
for individual happiness, fools poorly the marriage that has become persistent source
of malawe. So, it is the importance of marriage and not its devaluation that if
highlights when you accept a divorce. It also follows that it also matters to avoid that the
divorce process, already of itself emotionally painful, by what it represents from breaking
of the initial expectations, turn into a persistent and destructive litigation with measurement
of culpas always difficult but impossible to efect.
It is in this aim that the removal of the plea of guilt is proposed for the
divorce without the consent of the other abandoning, of the rest, the very designation of
litigious divorce. This even happened already in most European legislations seen
that, as is expressly assumed " (eliminate any reference to guilt) evita
undesirable investigation as to the state of marriage by the competent authority and
better respects the integrity and autonomy of the spouses " (in Boele-Woelki, K. et al, p.
55).
It cannot mean this elision that disprotecs situations of injustice or
inequality. In the consequences of divorce is due to repair of damage well
how the existence of compensation credits when there is manifest inequality
of contributions from the spouses to the burdens of family life. It is decisive, in effect,
observe thoroughness in the field of consequences, whether in relation to the children, or in the
situations of greater fragility and inequality between spouses. Demonstration of this
need to remove the blame avoiding the disprotection is, incidentally, the fact that this project
consecrate, in a very innovative way with respect to the previous legislation, that the violation
of human rights, specifically domestic violence, constitute grounds
to apply for divorce. It is not in this situation, incidentally, necessary to wait for the period of
a year of de facto rupture, to apply for it, to the extent that it is deemed to be
type of persistent violations evidences in an obvious way the breakdown of life in common.
Incidentally, ward off the litigation and prevent even more painful flats from the situations
of divorce is justly what the Portuguese for their practice have shown to do.
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In fact, litigious divorces have been drastically decreasing: from 38% in
1980, for 14% in 2000 and for residual ones 6% in 2005.
1.2 Individualization means the freedom to take on for you, accepting
also for others, the choice of own modes of facing and living the private life
As a valorative trend that has been claimed since the nineteenth century, the gradual assertion of the
rights of individuals in the family sphere appear already as central element of what
Durkheim considers it to be the modern conjugal family. To strengthen this point of view
wrote the author, already at that turn of the nineteenth century for the twentieth, that in the kind of family that
so if it was beginning to assert "individuals are more important than things": he
value thus in marriage the individual and family well-being at the expense of the
heritage logics. But the pathway of individualization processes over the course of
twentieth century it comes still to introduce new elements. The affirmation of equality between
men and women is another sign of the individualisation that is reflected in direct form in the
marriage and turns it into a link between equals.
Greater freedom in private life, more individual leeway as to the
conduction of marital and family life, greater affirmation of individual rights in a
relationship between pairs centered fundamentally on affective logics, are acquired from the
modernity. Of course, the new model brings in new problems as well. The largest
occurrence of divorce is one of them, but one can also speak in a generic way of
increased risk, uncertainty, tensions or conflicts of loyalty. Are the
Counterparts whose effects matter to attenuate, not least when the parties to conflict
are in situations of clear asymmetry.
Several are the indicators revealing that the transformations referred to,
particularly the processes of sentimentalization and individualization, occur
also in Portuguese society. The acceptance of divorce is practically widespread.
In a nationwide survey, applied in 1999, 83% consider that when there is
problems in the life of the couple if it is justified for divorce or that this is the solution to a bad
marriage and only 14% percent agreed with the idea of the indissolubility of marriage. Already in
2002 these positions appear reinforced in responses to another survey, in which only
4% claim that "it is better to have a bad marriage than to not be married / to" and 79%
agree with the idea according to which " when a couple is unable to solve their
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problems divorce is the best solution ". But more significant is still the fact that in the
last survey referred to, which was applied in 15 European countries, Portugal being
the one in which both women and men assume this position more
unequivocal, ahead of countries such as France, Germany, Great Britain or Sweden,
among others.
The increasingly sharp tendency of divorcees to return to
conjugality, under any of its forms, shows, by its shift, that higher rates
of divorce do not necessarily mean devaluing marriage, but rather, by the
contrary, which considers itself to be this too important in the life of each to be
poorly lived. The numbers too here are eloquent.
Results of the European Social Survey, already mentioned above, reveal, in effect,
that being divorced tends to be a transient situation, and there is in most countries,
for a same year, more married people who had ever been divorced, from the
that divorcees. For Portugal the Demographic Statistics of the INE, National Institute
of Statistic show also the constant and progressive increase in the number of
divorcees who turn out to marry: they go from 13% of marriages that se
performed in 2000 (8428 in 63752) to 20% (9842 in 47857) of those held in
2006. It is also regrowed that while marriages from 2000 to 2006 descend, the
recasements on the contrary rise. This is another one of the revealing indicators of what it has
coming to be defended: divorce did not represent for certain in these cases the discrediting of the
marriage in itself, and much less of the importance of the family, but rather the sign of the
failure of a specific marital relationship. Putting obstacles to divorce when he
constitutes a decision of mutual agreement, or at the least expressed will of one of the
involved, is to raise obstacles and prevent the legal realization of other projects of
life.
1.3 As for the secularization also in Portugal its effects make themselves felt.
What is in question is not necessarily the abandonment of religious references, but
before a retraction of these for more intimate spheres and taking on dimensions less
consequential in other aspects of life. In the plan of the practices are visible others
indicators of secularization. The descent into Catholic marriages is one of them. From 90.7
in 1960, were down to 86.6% in 1970, 74.6% in 1981%, 72.0% in 1991,
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66.4% in 1999 and finally to 52% in 2006 according to the data of the
Population Statistics from INE to 2006.
2. The project that presents itself proposes the disappearance of the designation " power
paternal "replacing it in a systematic way by the concept of" responsibilities
parental ". In the change of assignment is obviously implicit a change
conceptual that considers itself to be relevant. When replacing one assignment with another change-if
the centre of attention: it passes on to be not in that which holds the "power"-the adult, in this
case-but in those whose rights they want to safeguard, i.e., children.
This change seemed essential for several reasons. In the first place, the
previous assignment supposes an implicit model that points to the sense of possession,
manifestly unsuitable in a time when the child is increasingly recognized
as the subject of rights. It is certain that in family law paternal power has always been
considered a power / duty, but this is a technical specification that disappears in the
everyday use, allowing themselves as soon as in the common language to make understandings
and old and unsettling connotations.
Second, it is vital that it is from the point of view of children and their
interests, and therefore from the responsibility of the adults, who define themselves
consequences of divorce. Also thus evidences the separation between relationship
marital and parental relationship, assuming that the end of the first cannot be a pretext
for the break of the second. In other words, the divorce of the parents is not the divorce of the
children and these should be spared disputes that boil down to their interests,
notably, if they are prevented from maintaining affective relations and loyalties so much
with your mothers as with your parents.
It is worth emphasizing, lastly, that the designation now proposed accompanies
the legislations of the majority of European countries that already have a lot to be enshrined.
Add to this still that in this project introduces a new article predicting punishment
for non-compliance with the exercise of the parental responsibilities that it becomes of
considered a crime of disobedience. Again it is intended to underline that the
State shall, through the various means within its scope, ensure the defence of the rights of the
children, part habitually silent in this kind of disputes between adults, always
that these do not comply with what stays stipulated.
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The imposition of the joint exercise of parental responsibilities for the
decisions of great relevance of the life of the children stems yet from respect for the principle
of the child's interest. Here too it accompanies the experience of the jurisprudence and the
current legislation in countries that, because they have had more time faced with the
increased divorce, changed the exercise regime from parental responsibilities of the
single guard for the joint guard. This happened because they were checked the
perverse effects of the single guard, notably by the trend of greater estrangement
of the male parents of the exercise of their parental and correlative responsibilities
fragilization of the affective relationship with their children.
3. The legislative changes that are now proposed constitute general rules and
abstracts that apply, as is known, to individuals in different contexts and
realities. Equal rights often correspond with different social conditions of the
its exercise, reserving itself for it, as it always happens in terms of law, a
very relevant role of understanding and adapting the law to their applicators.
Thirty us after the entry into force of the Civil Code Reform of 1977 is
today still evident that to equal rights between men and women in marriage,
there consecrated, does not correspond to equality of fact. Numerous are the indicators that
they reveal us this inequality, obviously not exclusive to the Portuguese situation.
We limit ourselves here only to underlining one of these indicators that evidences the
inequality of contributions between men and women for family life. Of agreement
with the Human Development Report 2007/2008 of the United Nations, Portugal
is from the countries, among those of high human development, with greater asymmetry in
disavits of women in hours of work in and out of the market: they plummet,
with effect, more than an hour and a half a day than men.
These time differentials had already been detected in two surveys as well.
held in Portugal, which, carried out by separate teams, arrived at the same
conclusions: adding to the hours of work paid with those of the care with the family, the
Portuguese women contribute directly with more hours of work than the
men. Other data further revealed that 70% of women in our country
contributed financially in a decisive way to the family budget. Lastly,
are also the Portuguese mothers those who more hours worked for the market
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of work across the European Union at fifteen. It is far, from the Portuguese reality
thus, the model of division of the family work that assigns to the man exclusive role
of provider of the family and the woman who of being only caregiver of the home and the children. But
insist that the work performed by women in the family context, today
accumulated with the work they perform abroad, is not valued in the context
of the marriage and remains even more invisible when the divorce arises.
Ora, the recognition of the decisive importance for living conditions and
balance of the family life of the contributions of the so-called reproductive sphere, i.e. of the
care for children and housework, is a recent civilizational acquisition
which it lacks yet to be truly emboded, either in everyday reality or
in political and legal perception. If often in the plan of the principles if it is ready to
consider motherhood and parenthood as eminent social values (art. 68º of the
Constitution) it is necessary to promote its full realization.
It is by taking into consideration this lack of recognition and the asymmetries that
are implicit, which the submitted project establishes, in the consequences of the divorce,
the possibility of the allocation of compensation credits, whenever it is checked
asymmetry between the spouses in the contributions to the burdens of family life.
In effect, it is known that female professional careers are often
penalized in their progression because women, to meet the commitments
family members, renounces sometimes to develop other activities in the professional plan
that can call into question those commitments. Ora when such resignations exist, and by
gender inequalities are not generally expected nor practiced in respect of
to men, they end up, on deadline, for putting women at a disadvantage in the plan
financial. It is acknowledged for this that in the case of marital dissolution it would be fair " that the
the most sacrificed spouse in the (des) balance of the resignations and the damage, had the right
of being compensated financially for this excessive sacrifice " (in, William
Oliveira, (2004), "Two in one flesh", in Ex aequo , No 10.)
Still in this plan, it is worth remembering that due to the fact that it is up to women
that the custody of the children in the divorce situation is attributed with much more
frequency, the situations of loss and financial imbalance achieve also the
conditions of life of the children. These can still escalate in the event of default
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of the assumption of parental responsibilities, particularly when there is refusal or delay
in the provision of food. Search for ways to increase engagement and
protagonism of parents, men, in the provision of care and support for their children,
similarly in the wake of the divorce, it is for certain to better ensure the rights of the
children to maintain the relationships of affection both with mothers and with parents, in addition to
also ensure the more equal sharing of the tasks between the sexes with the benefit of
all involved.
4 . The divorce has increased in the last forty years in our societies by
several reasons, among which we can highlight three fundamental ones. In the first place, it is
necessary to take into account the social and economic recompositions that have translated, in a
first moment, in the deruralization of societies and in the growth of classes
averages. For the vast majority, in the different social sectors, the aspects strictly
heritage went on to play minor relief role in the family and marriage.
The traditional logic in which the family, around the figure of the patriarch, decided the
marriage of the sons-the family founded the marriage-transforms into the model of
modern conjugal family from which it is defined that it is marriage that merges the
family. More organised societies around salaried depend less on the
family heritage to make decisions around conjugality, have more freedom
to decide. It was a change that was to be operating in the course of the twentieth century and that if
has deepened, affirming new contours, in its last 40 years.
Second, it has changed the very way of facing marriage. Given the
centrality of affections for the well-being of individuals, went on to consider that in
case of persistent disagreement in marriage the individuals would not be required to
keep at any price the institution. It is assumed, incidentally, to be difficult to build harmony
familiar about the sacrificial and the malawe of some of its members. Accepting the divorce
has gone on to be a sign, not of facilitism, but of valorisation of a happy conjugality and
achieved. Getting back into marriage or conjugality is, incidally, the practice of most of the
divorcees in our societies.
Third, it went on to depend less on marriage as a mode of
life. The progressive entry of women into the labour market, phenomenon more
visible in Portugal since the beginning of the 80, allows for less dependence on the
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marriage as way of life, for both spouses, and greater autonomy to end
with persistently undesirable situations.
The increase in divorce is part of, as emphasized at the beginning, of a
wider movement of social transformations that was being accompanied in the
societies developed by changes in the legislative plan. Greater freedom and less
constraints in this plan of private life, they have not left, in return, either
of causing new problems and tensions that the legislature was seeking to accral.
Being the conjugal rupture, very often, an emotionally
painful, the trend has also been, at the legislative level, and in the European countries that
will be going to us to serve as a reference, to remove the stigmatizing and punitive charge that a
logic of identification of guilt can only aggravate. Privilege-if mutual agreement in the
conjugal rupture. It also encourages the use of ways to drive the conflict through the
family mediation as a proximity solution and in the sense of avoiding flats
painful and disgassing judicial. Whenever the modality of the mutuo agreement is
impossible and there is no consent from one of the parties, the law seeks to settle on causes
objective the demonstration of the breakdown of life in common and the willingness to not continue.
It requires in return always, with agreement or without it, rigor and balance in the
management of the consequences of divorce, not least when there are children involved or
situations of asymmetry and fragility of one of the parties. The rights of children will be the
concerning in the regulation of the exercise of parental responsibilities. Search-if
acautelate the non-aggravation of situations of inequality and asymmetry between spouses,
protecting the most frailty.
These were the main generic criteria that were on the basis of the project
which now proposes itself. They explain then in a more detailed manner the
proposed changes.
II. Let us now highlight, briefly, the most important changes
relatively to the current regime:
1 . Family Mediation
It stimulates the dissemination of family mediation services by imposing a
reporting obligation to the spouses, on the part of the conservatives and the courts.
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2. Divorce by mutual consent
It eliminates the need to make an attempt at conciliation in the processes of
divorce by mutual consent; if there were grounds for doubting the effectiveness of the
legal requirement, these doubts seem more consistent when the spouses are from
agreement of the dissolution of the marriage.
The spouses will not have to reach "supplementary agreements" as a requirement of the
divorce, as it happens today; the dissolution of marriage depends only on mutual
agreement on the divorce itself. But, missing some of the "supplementary agreements", the
application for divorce has to be filed in court so that, in addition to determining the
dissolution on the basis of mutual consent, the judge decides the questions on which the
spouses were unable to understand themselves, as if they were a divorce without
consent of one of the spouses.
3. Divorce without the consent of one of the spouses
Eliminates the modality of divorce for culposess violation of marital duties
-the classic form of divorce-sanction-which has been systematically abandoned in the
European countries for being, in and of itself, source of aggravation of previous conflicts,
with injury to the ex-spouses and to the children; the divorce should not be a sanction.
The spouse who wants to divorce and is unable to reach an agreement for the dissolution,
will have to follow the path of the so-called "breakaway divorce", by "objective causes",
specifically the separation of fact. And in this modality of divorce, as opposed to
that today happens, the judge will never seek to determine and graduate the guilt, to apply
heritage sanctions; move away now also these ancillary heritage sanctions.
The discussions about guilt, and also about damage caused by illicit acts, are
alheys to the divorce process.
Shorten up to one year the deadlines for the relevance of the fundamentals of divorce
without consent from one of the spouses.
Whether the system of the "breakaway divorce" intends to recognize the cases in which the
matrimonial links have lost independently of the cause of this failure, there is no
reason for not admitting the relevance of other reliable indicators of the bankruptcy of the
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marriage. It is therefore added to a general clause that assigns relief to other facts
that clearly show the manifest rupture of marriage, regardless of guilt
of the spouses and of the course of any period. The typical example, in the legal systems
european, it is that of domestic violence-that can immediately show the inexistence
of the life communion of a marriage.
4. Patrimonial effects
In the event of a divorce, sharing will far be as if the spouses had been
married in acquired communion, even though the convent regime had been the
general communion, or a other mixed regime closer to the general communion than of the
communion of procured; sharing will continue to follow the convent regime in the case
of dissolution by death. It follows, at this point, the German right, which avoids that the
divorce becomes a means of acquiring goods, in addition to fair sharing than if
acquired with the common effort in the constancy of matrimony, and which results from sharing
second to the communion of acquired. It abandons the current regime that takes advantage of the
ensejo to award an innocent and chastise a culprit.
It is affirmed the principle that the spouse who clearly contributes more than
that it was due for the burdens of family life acquires a compensation credit
which should be satisfied at the time of sharing. This is just another case where if
applies the general principle that enrichment movements or
impoverishment that occur, for diverse reasons, during marriage, should not
cease to be compensated at the time when the final accounts of the
heritage.
In the event of a divorce, any of the spouses lose the benefits it has received or
there was to be paid in consideration of the married state, only because the reason for the
benefits was the constancy of marriage. Also here stand out the intention to chastise
a culprit and benefit an innocent.
Claims for damage repair will be, in any case, judged on the terms
general of civil liability, in the own actions; this is a corollary of the withdrawal from the
consideration of the fault of the scope of the divorce actions.
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5. Parental responsibilities
The joint exercise of parental responsibilities is imposed, save when the
court to understand that this regime is contrary to the interests of the son. The exercise
set, however, refers only to the "acts of particular importance"; the
responsibility for the "acts of daily life" lies solely with the progenitor
with whom the son meets. It is based that the joint exercise of the
parental responsibilities keeps the two progenitors committed to the
child growth; it is asserted that it is in question a public interest that is up to the
State to promote, instead of leaving it to the free agreement of the parents; it reduces the scope of the
joint exercise to the minimum-to the subjects of "particular importance". It will fit
jurisprudence and the doctrine to define this scope; it is expected that, at least in the principle of
Application of the regime, relevant subjects are summarized to serious existential questions and
rare, which belong to the essential core of rights that are recognized to children.
It is intended that the scheme is practicable-as it is in several European countries-and to
that this happens may be advantageous not to force frequent contacts between the
progenitors. So if you can overcome the traditional argument that parents
divorcees are unable to exercise jointly the parental responsibilities.
In the determination of the child's residence, the availability is valued
manifested by each of the progenitors to promote customary child relationships
with the other progenitor.
The non-compliance of the scheme on the exercise of parental responsibilities-
approved by the competent authority on the basis of a parents ' or determined agreement
by the court-goes on to constitute a crime of disobedience, under the criminal law.
It is intended to diminish the lightness with which they flout the decisions of the courts and whether
they change the habits and expectations of the children, in this matter.
6. Food between ex-spouses
It is affirmed the principle that each ex-spouse must provide for their livelihood, and
that the obligation of food has a temporary character, although it may be
renewed periodically.
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It eliminates the appreciation of guilt as a relevant factor of the allocation of
food, because it wants to reduce the issue to its essential core-the assistance of
who needs who has possibilities. But it is expected that, in special cases that the
adjudicators will easily identify, the right of food is denied to the former spouse
in need, because it is shocking to burden the other with the corresponding obligation.
It is affirmed the principle that the food creditor does not have the right to keep the
standard of living that it enjoyed while being married. The marriage that doesn't last for
always can't guarantee a certain level of life forever.
The prevalence of any food obligation is established in respect of
children of the food debtor, relative to the emerging obligation of divorce in
favor of the ex-spouse.
7. Affinity
The affinity cesses with the dissolution of marriage by divorce; the relevance
social and legal of the permanence of these links, in the wake of divorce, there is much that
presented itself more than doubtful.
So, in the applicable constitutional, legal and regimental terms, the Deputies of the
Undersigned Socialist Party present the following draft law:
Legislative amendments
Article 1.
Amendment to the Civil Code
Articles 1585, 1676, 1773, 1775, 1778, 1778, 1778, 1779, 1779, 1779.
1781, 1785, 1789, 1791, 1792, 1901, 1902, 1904, 1904, 1904, 1904, 1904, 1904.
1905, 1906, 1907, 1908, 1911, 1912, 2016, 2016, go on to have the following
wording:
17
" Article 1585.
Elements and cessation of affinity
The affinity determines itself by the same degrees and lines that define kinship
and not cesses by the dissolution, by death, of the marriage.
Article 1676.
[...]
1. [...]
2. If the contribution of one of the spouses to the burdens of family life exceeds
manifestly the part that belonged to him in the terms of the previous number, that spouse
becomes creditor of the other for that there is contributed beyond what it was competing for; but this
credit is only required at the time of the sharing of the couple's assets, unless they vigore the
regime of separation.
3. [...]
Article 1773.
[...]
1. The divorce may be by mutual consent or without consent from one of the
spouses.
2. The divorce by mutual consent may be required by both spouses, of
common agreement, in the conservatory of the civil registry, or in the court if, in this case, the couple
has failed to agree on any of the subjects referred to in paragraph 1 of the article
1775.
3. The divorce without consent of one of the spouses is required in court by a
of the spouses against the other, with some of the grounds provided for in Article 1781º.
18
Article 1774.
(Family Mediation)
Prior to the initiation of the divorce proceedings, the conservatory of the civil registry or the
court must inform the spouses about the existence and objectives of the services of
family mediation.
Article 1775.
(Application and instruction of the case in the conservatory of the civil registry)
1. The divorce by mutual consent may be instituted at all time in the
conservatory of the civil registry, upon application signed by the spouses or their
attorneys, accompanied by the following documents:
a) specified Relation of the common goods, with indication of the respective
values, or should the spouses choose to carry out the sharing of those goods in the
terms of the Articles 272 to 272.-C of the Decree-Law No. 324/2007, 28 of
September, agreement on the sharing or request to draw up the same;
b) Certify of the judicial sentence that has regulated the exercise of the
parental responsibilities or agreement on the exercise of responsibilities
parenting when there are minor children and have not previously
judicial regulation;
(c) Agreement on the provision of food to the spouse who is lacking;
d) Agreement on the fate of the home of family home;
e) Certify of the scripture of the antenptial convention, if it was
celebrated;
2. Should another thing not result from the submitted papers, it is understood that the agreements
are intended for both the period of the pendency of the process and the subsequent period.
19
Article 1776.
(Procedure and decision in the conservatory of the civil registry)
1. Received the application, the conservative convenes the spouses for a conference
where verifies the fulfillment of the legal assumptions and appreciates the agreements referred to
in points (a), (c) and (d) of paragraph 1 of the preceding Article, inviting the spouses to amend them if
such agreements do not accrate the interests of any of them or the children, and may
determine to that effect the practice of acts and the production of the evidence eventually
necessary, and enact, then, the divorce, by proceeding to the corresponding record,
save the provisions of articles 1777.
2. The provisions of Articles 1420, 1422 (2) and 1424 of the Code of Procedure shall apply.
Civil procedure, with the necessary adaptations.
3. The decisions handed down by the conservative of the civil registry in the divorce by mutual
consent produces the same effects of judicial sentences on identical
matter.
Article 1778.
(Shipment to the court)
If the submitted agreements do not sufficiently accrate the interests of a
of the spouses, and still in the case provided for in Article 1777 (5), the type-approval shall
be refused and the divorce proceedings are fully remitted to the court of the comarch a
which belongs to the conservatory, following the terms set out in Article 1778, with
the necessary adaptations.
Article 1778-The
(Application, instruction and decision of the case in court)
1. The divorce application is filed in court, if the spouses do not
follow up with some of the agreements provided for in Article 1775 (1).
20
2. Received the application, the judge appreciates the agreements that the spouses have
presented, inviting the spouses to amend them if these agreements do not accrunt the
interests of some of them or the children.
3. The judge fixes the consequences of divorce on the issues referred to in paragraph 1 of the article.
1775. on which the spouses did not submit agreement, as if they were of a
divorce without consent from one of the spouses.
4. Both for the assessment referred to in paragraph 2 and for fixing the consequences of the
divorce, the judge can determine the practice of acts and the production of the evidence eventually
necessary.
5. The divorce is decreed thereafter by proceeding to the corresponding record.
6. In the determination of the consequences of divorce, the judge must always not only
promote, but also take into account, the agreement of the spouses.
7. It shall apply to divorce in court Rule 1777 (4).
Article 1779.
(Attempt to conciliation; conversion of divorce without consent of one of the
spouses in divorce by mutual consent)
1. In the process of divorce without consent of one of the spouses there will always be a
attempt at conciliation of the spouses.
2. If the attempt at conciliation does not result, the judge will seek to obtain the agreement of the
spouses for the divorce by mutual consent; obtained the agreement or having the
spouses, at any time in the process, opted for this modality of divorce,
follow the terms of the divorce procedure by mutual consent, with the
necessary adaptations.
Article 1781.
(Rupture of the marriage)
They are grounds for divorce without the consent of one of the spouses:
21
a) The de facto separation for a consecutive year;
b) The alteration of the mental faculties of the other spouse, when it lases more than a year ago
and, by its gravity, compromises the possibility of life in common;
c) The absence, without which of the absent there is news, for not less than one year.
d) Any other facts that, regardless of the guilt of the spouses, show the
permanent rupture of the marriage.
Article 1785.
[...]
1. The divorce may be required by any of the spouses on the grounds of
article 1781º; (a) and (d) with the fundamentals of points (b) and (c) of the same article,
may only be required by the spouse who invokes the amendment of the mental faculties or the
absence of the other.
2. When the spouse who can ask for a divorce is said to be interdict, the action may be
intended by its legal representative, with permission from the family council; when
the legal representative is the other spouse, the action may be intentioned, on behalf of the
holder of the right to act, by any relative of this in the straight line or up to the third degree
of the collateral line, if it is equally authorized by the family council.
3. The right to divorce shall not be transmitted by death, but the action may be continued
by the author's heirs for patrimonial effects, if the author falls asleep pending the
cause; for the same effects, may the action proceed against the inheritors of the defendant.
Article 1789.
[...]
1. [...]
2. If the de facto separation between the spouses is proven in the process, any of them
may require that the effects of the divorce retroact to the date, which the sentence will fix, in which
separation has started.
22
3. [...]
Article 1790.
[...]
In the event of a divorce, none of the spouses can in the sharing receive more than
would receive if the marriage had been celebrated under the regime of the communion of
acquired.
Article 1791.
[...]
Each spouse loses all benefits received or that there is to be received from the
another spouse or third party, in view of the marriage or in consideration of the state of
married, whether the stipulation is prior wants subsequent to the celebration of marriage; the
author of the liberality can determine that the benefit reverts to the children of the
marriage.
Article 1792.
(Repair of damage)
1. The aggrieved spouse has the right to ask for the repair of the damage caused by the other
in the general terms of civil liability and common courts.
2. The spouse who filed for divorce on the grounds of Article 1781º (b), shall
repair the non-patrimonial damage caused to the other spouse by the dissolution of the
marriage; this application must be deducted in the divorce action itself.
Article 1793.
[...]
1. [...]
2. [...]
23
3. The scheme fixed, either by type-approval of the agreement of the spouses or by decision of the
court, it can be amended in the general terms of voluntary jurisdiction.
Article 1901.
(Parental responsibilities in the constancy of matrimony)
1. In the constancy of matrimony, the exercise of parental responsibilities belongs to
both parents.
2. Parents exercise the parental responsibilities of mutual agreement and, if this is lacking in
issues of particular importance, any of them can appeal to the court, which will try
the conciliation; if this is not possible, the court will hear the son, before he decides, save
when ponderous circumstances disadvise you.
Article 1902.
[...]
1. If one of the parents practising act which integres the exercise of parental responsibilities,
it is presumed to act according to the other, save when the law expressly requires the
consent from both parents or deals with an act of particular importance; the
lack of agreement is not enforceable to third in good faith.
2. The third party shall refuse to intervene in the act practiced by one of the progenitors
when, in the terms of the preceding paragraph, no agreement of the other or when
meet the opposition of this one.
Article 1903.
[...]
When one of the parents is unable to exercise parental responsibilities by
absence, incapacity or other impediment, shall fit that exercise solely to the
another progenitor.
24
Article 1904.
(Death of one of the progenitors)
On the death of one of the parent, the exercise of parental responsibilities
belongs to the over-living.
Article 1905.
(Food due to the child in the event of divorce, judicial separation of persons and goods,
declaration of nullity or annulment of marriage)
In the cases of divorce, judicial separation of persons and property, statement of
nullity or annulment of the marriage, the food owed to the child and how to provide them
shall be governed by agreement of the parents, subject to type-approval; homologation shall be
refused if the agreement does not correspond to the interest of the minor.
Article 1906.
(Exercise of parental responsibilities in the event of a divorce, judicial separation of
persons and goods, declaration of nullity or annulment of marriage)
1. Parental responsibilities concerning issues of particular importance to the
life of the child are exercised in common by both progenitors, in the terms that
vigorously in the constancy of matrimony, save in cases of manifest urgency, in which
any of the parent may act alone, owing information to the other soon
That possible.
2. When the joint exercise of parental responsibilities relating to the issues
of particular importance for the life of the son is judged contrary to the interests of this,
must the court, through reasoned decision, determine that such
responsibilities are exercised by one of the parent.
3. The exercise of parental responsibilities relating to the acts of the current life of the
son fit the progenitor with whom he resides habitually, or to the parent with
who he finds himself temporarily; however, the latter, when exercising his
25
responsibilities, it should not counteract the most relevant educational guidelines, such
how they are defined by the progenitor with whom the child habitually resides.
4. The parent to whom the exercise of parental responsibilities relating to the
acts of the current life may exercise them by themselves or delegate their exercise.
5. The court will determine the residence of the child and the rights to visit in accordance with the
interest of this, taking into attention all the relevant circumstances, specifically the
possible agreement of the parents and the availability manifested by each of them for
promote habitual relations of the child with the other.
6. To the parent who does not exercise, in whole or in part, parental responsibilities
assists the right to be informed about the mode of their exercise, specifically on
the education and the living conditions of the child.
7. The court will always decide in harmony with the interest of the minor, including the de
maintain a close relationship with the two progenitors, promoting and
accepting agreements or making decisions that favor ample opportunities from
contact with both and of sharing responsibilities between them.
Article 1907.
(Exercise of parental responsibilities when the child is entrusted with the third person)
1. By agreement or court decision, or when you check any of the circumstances
provided for in Article 1918º, the child may be entrusted to the third person guard.
2. When the son is entrusted to the third person, fit to the latter the powers and duties of the
parents who are required by the appropriate performance of their duties.
3. The court will decide in what terms the parental responsibilities will be exercised in the
part not impaired by the provisions of the preceding paragraph.
Article 1908.
[...]
When you check any of the circumstances provided for in Article 1918º, you may
court, by regulating the exercise of parental responsibilities, to decide that, if the deceased the
26
progenitor to whom the minor is delivered, the guard does not pass over to the surcharge; the court
it will then assign the person to whom, provisionally, the minor will be entrusted.
Article 1910.
[...]
If the membership of a minor born out of wedlock finds itself established
only as for one of the parent, the latter belongs to the exercise of responsibilities
parental.
Article 1911.
(Filiation established as to both the
progenitors who live in conditions analogous to those of the spouses)
1. When the membership is established in respect of both parents and
these live in conditions analogous to those of the spouses, applies to the exercise of the
parental responsibilities the provisions of articles 1901 to 1904.
2. In the case of cessation of the coexistence between the parents, the
provisions of Articles 1905 to 1908.
Article 1912.
(Filiation established as to both the
progenitors who do not live in conditions analogous to those of the spouses)
1. When the membership is established in respect of both parents and
these do not live in conditions analogous to those of the spouses, applies to the exercise of the
parental responsibilities the provisions of articles 1904 to 1908.
2. Within the framework of the joint exercise of parental responsibilities, the
provisions of Articles 1901 and 1903.
27
Article 2016.
[...]
1. Each spouse must provide for their livelihood, after the divorce.
2. Any of the spouses are entitled to food, regardless of the type of
divorce.
3. For manifold reasons of equity, the right to food can be denied.
4. [...] "
Article 2.
Addition to the Civil Code
They are deferred to the Civil Code Articles 1777-A, 2016.-A, 2016.-B, 2016-C,
with the following:
" Article 1777.
(Agreement on the exercise of parental responsibilities)
1. When agreement is made on the exercise of parental responsibilities
relating to minor children, the case is sent to the Public Prosecutor's Office with the court
judicial of 1 th competent instance on grounds of matter in the framework of the circumscription to
that it belongs to the conservatory, so that this one will pronounce on the agreement within 30
days.
2. Should the Public Prosecutor's Office consider that the agreement does not properly acaucn the
interests of minors, may the applicants amend the agreement in accordance or
present new agreement, being in the latter case given new view to the Public Prosecutor's Office.
3. If the Public Prosecutor's Office considers that the agreement duly acauctes the interests
of the minors or having the spouses amended the agreement in the terms indicated by the
Prosecutor's Office, follows the provisions of the final part of paragraph 1 of the previous article.
4. Failure to comply with the scheme fixed on the exercise of parental responsibilities
constitutes a crime of disobedience under the criminal law.
28
5. In situations where the applicants do not conform to the changes indicated
by the Public Prosecutor's Office and maintain the purpose of divorcing, the provisions of
in Article 1778.
Article 2016-A
Amount of food
1. In the setting of the amount of food shall the court take into account the duration of the
marriage, the collaboration provided to the couple's economy, the age and state of health of the
spouses, their professional qualifications and possibilities of employment, the time that
will have to devote, eventually, to the creation of common children, their incomes and
provings, a new marriage or de facto union and, generally, all the
circumstances that influence on the needs of the spouse receiving the food and
the possibilities of what provides them.
2. The court shall give prevalence to any food obligation in respect of
a spouse of the spouse debtor about the emerging obligation of divorce in favor of the ex-
spouse.
3. The creditor spouse does not have the right to maintain the standard of living of which he has benefited in the
constancy of matrimony.
Article 2016-B
Duration
The food obligation is to be established for a limited period, although
renewable, save for ponderous reasons.
Article 2016-C
Judicial separation of persons and goods
The provisions of the preceding paragraphs shall apply to the case that it has been enacted to
judicial separation of persons and property. "
29
Article 3.
Abrogation standard
Articles 1780, 1782 (2), 1783, 1786 and 1787 of the Code are repealed.
Civil.
Article 4.
Change of assignment
The expression "paternal power" should be replaced by " responsibilities
parental " in all legal diplomas and official repartitions.
Article 5.
Beginning of effective
This diploma comes into force 30 days after its publication.
THE DEPUTIES
10.04.2008