Changes The Legal Status Of Divorce

Original Language Title: Altera o regime jurídico do divórcio

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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334271624455774f5331594c6d527659773d3d&fich=pjl509-X.doc&Inline=false

Draft law n° 509/ X µ s changes to the Jurà Regime dico 1 Div's draft law ° 509/X µ s changes to dico divan Jurà ³ Regime trade exhibition statement i. freedom of choice and equality of rights and duties between ´ code njuges, affectivity in the heart of the trust relationship, full of life Fellowship , cooperation and mutual support in the education of the children, when there is, here's the foundations of marriage in our societies. An extension of this logical ³ wool utterance of pious princà is the acceptance of the Ottoman trade ³ and management accountable and collectively taken of its aftermath. In fact, and being the princà pio of freedom, no one should stay married against your will or if it considers that there was breach of the affective ties. The code njuge ´ treated unequally, unfair or to watch out against your dignity should be able to terminate the marital relationship even without the will of the other. The invocation of the definitive break from life in common should be grounds enough for the Divan ³ trade can be enacted. Nevrà point is logical is also, however, that referred to the aftermath of the Ottoman trade ³ references especially when there are minor children. As for fundamental, in this plan, the rights of children and the duties of parents, and assuming the reality of differentiation between the conjugal and parental relationship, the exercà heat of parental responsibilities should be stipulated so that the child can keep relationship µ s deep affective with the father and with the mother as well as being the subject of care and protection on the part of both in order is safeguarding the higher your interest. The pious princà ago listed seem simple and universally acquired truths today. Not are not, however, want when we compared with other companies, either when we think of the history of ³ ria 20TH century. As it is known there are 2 many societies in which there is freedom of choice of and the status code njuge ´ of inferiority of women in marriage gives rise to serious rias µ s violation of human rights. As for the Portuguese case, in 1910, with the laws of Portugal, took over pioneer Family to be after Norway, in 1909, the second European to consecrate the paà s couch ³ trade by mutual consent, in the wider framework of the legislation which enshrined the separation of Church and State and civil marriage obligatory ³ River. But, as is known, years later there are setbacks in relation to princà whistles then applied. Between 1940 and 1975, and through the signature of the Concordat with the Santa series, spread is the canonical law civil law ³ and the indissolubility of the marriage situation which prevented the Ottoman trade ³ ³ Catholic catalog for weddings unsuccessful. But modernity is based on the idea of processing capacity of each indivà duo and in pursuit of conducting staff translated in terms of marriage, in the valorizaà of µ s emotional relationship to the detriment of imposià of µ s institutional and individual well-being as bet condition required for family welfare. This reunion of Portugal with modernity are ³ was could not, on the legislative plan, from 25 April 1974, with Decree-Law No 261/75 °, of May 27, consequent to the additional protocol is Concordat that made could not the Ottoman trade ³ ³ Catholic catalog for weddings and, later, with the revision of the Civil CODE ³ mean by Decree-Law No. 496/77 ° of November 25. In 1995, 1998 and 2001 were made some adjustments to adapt the legal architecture is the reality of social life and the profound transformation µ s that were checking are ³ in Portugal but across Europe and generic form, developed societies. But as in most paà ses of the European Union, who have known vast reforms in family law plan read, µ Empire and now change more widely also in Portugal. The draft law presented is intended to resume the kind, open and modern renewal Rite that there is almost 100 years marked the first Republic, adapting the law of trade ³ Divan to the 21ST century, the realities of modern societies. The draft, drawn from work for this purpose held by professors William and lia HTC Towers, seeks to converge with the legislation latest and with that force in most paà ses Europeans, as may be conferred on 3 publication Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses, a book that is a product of the activity of the CEFL , Commission on European Family Law in which Portugal also participates. It is assumed this change in three basic plans. Firstly, remove the support of fault couch ³ trade without the consent of the other, as occurs in most legislation µ s the European Union widen the fundamentals goals of marital breakdown. The abandonment of the plea of guilt is, actually, the point of convergà on European legislation as can be read in the work behind cited: â € œ the Elimination of any reference is fault is consistent with the evolution of law and practice in European legal systems analysed. In many of these systems it was abandoned. Even the few who, partially, keeps many times in practice evolution ram in the direction of the couch ³ trade without guilt. In any of the modes is easy difà assign blame just one of njugesâ €  code ´ (Boele-Woelki em et al. (2004), Principles of European Family Law Regarding Divorce and Maintenance Between Former Spouses, Commission on European Family Law, Antwerp-Oxford, Intersentia, p. 55). Secondly, it is assumed to form Express cites the concept of parental responsibilities as central reference, so clearly those of maladjusted â € today œ paternalâ €  power, while at the same time sets the change in the supplementary system of heat exercà of parental responsibilities whereas the your failure as a crime. Finally, and recognized the importance of the contributions to the marriage and family life of children and care of work spent in the home, for the first time enshrined in the law and in situation of dissoluà of marriage, which can be a credit of clearing in situation of inequality manifests of those contributions. In part II of this exhibition of motives are more technical changes µ s main. Look it now, a little more closely, for the µ s social transformation that underlie the proposals. 1. The realities of modern societies to which references are resulting from rapid changes quick and susceptà to produce amazement and mark µ s. In the Portuguese case reason plus there are for these questions. If in most European set of ses paà transform µ that directly affect the 4 way to look at and to live the marriage and the family read start from 60 years of the 20TH century, in Portugal these processes are ³ were gaining visibility more noticeable ³ laugh from the princà pio of 80. The Divan are trade ³ ³ started to increase more significantly in Portugal after 1975 by µ s reasons already referred to. After a moment of high numbers that matched is regularizaà of the situation earlier µ is law. The evolution is as follows: in 1970, 508; 1980, 5843; 1990, 9216; 2000, 19104; 2006, 23935 (INE, demographic statistics Estatà stay). It is then the process here of transformation later, shared with other paà ses of southern Europe, which does not leave however to steer in the direction of the more general trends. Indeed, when studying more closely these realities is concluded, perhaps unlike the µ s view of common sense, that the Portuguese approach too, in its practice and in its µ s representation, of other Europeans. We can identify these µ s position, in terms of conjugal life, as an integral part of three great movements that were occurring in the course of the 20TH century and, more particularly, in its last 40 years: sentimentalizaÃ, individualizaà and secularizaÃ. 1.1 to identify the sentimentalizaà process of simply analyzing diacronicamente the practice of marriage and family life in the last few decades to inevitably conclude that the affections are in the center of the marital relationship and the parents-children. Not excluding the existence of other important dimension µ s conjugality and family life, as the contractual dimension ³ mica and economic, which obviously is also necessary to take into consideration, is however inegà not be the affective dimension the founder and central core of married life. As for s µ s family relations between parents and children was becoming increasingly clear that the psycho-emotional wellbeing of recent went on to be in the foreground. Proof of what is stated and obvious sign of sentimentalizaà are the results of a survey showing Europeans that the family read in the first place, soon followed from friends and leisure, are its main priorities when responding to what is important in life. Interestingly, and perhaps unlike some expectations, there are significant differences between paà ses this


5 priorizaÃ, fact that translates, for sure, a true consensus value at European level. Is ‰ the fact that the affective dimension of life has become so crucial to the welfare of the indivà duos which gives is particularly conjugality. Which is decisive for the personal happiness, tolerate a bad marriage that became a persistent source of malaise. So, is the importance of marriage and not your desvalorizaà that stands out when it accepts the Ottoman trade ³. It follows also that matter to avoid the Ottoman trade ³, already you emotionally painful, by representing the break initial expectations, becomes a persistent and destructive gio lità with measurement of blame difà always easy but achieve level impossÃ. Is ‰ in this order that if µ and proposed the removal of the Foundation of blame for the Divan ³ trade without the consent of the other, abandoning the ³ pria those of couch ³ trade litigation. This even happened already in most legislation, µ s European as is expressly assumed â € œ (remove any reference is guilty) prevents undesirable vel research about the State of the marriage by the competent authority and respect better the integrity and autonomy of the code njugesâ €  ´ (Boele-Woelki, in k. et al, p. 55). Cannot mean this elisà that if unprotect µ s situation of injustice or inequality. In the aftermath of the couch ³ references are trade made for the repair of damage and the existence of credits of clearing when there is manifest unequal contributions of code ´ njuges for the burdens of family life. à ‰, indeed, observe rigour in the domestic domain of the aftermath, either with respect to children in situations of greater fragility and µ inequality between ´ code njuges. Profitability analysis of this need to eliminate the fault to avoid the desprotecà is, actually, the fact that this project devote much relatively is groundbreaking legislation above, that the violation of human rights, including domestic violence ", rem constituà grounds for claiming the Ottoman trade ³. Not in this situation, actually, must wait for odo perà a year of disruption to the request, to the extent that it is considered that this type of violation µ s persistent evidence of obvious ³ way break from life in common. Actually, keep the lità and prevent entrainment is used even more painful the situation ³ µ s couch trade is just what the Portuguese by your practice have been shown to do.

6 in fact, couch ³ rcios litigious have declined dramatically: from 38% in 1980 to 14% in 2000 and to some 6% waste in 2005. 1.2 the individualizaà means the freedom to take on for themselves, accepting also to the other, the choice of own ³ themselves to face and live the life style As trend values which States since the 19TH century, the gradual assertion of the rights of indivà duos in the family sphere appears already as a central element of what Durkheim is considered to be the family read modern marital. To strengthen this view I wrote the author, already in this turn of the 19TH century to the 20th in the family read it then if you get ava saying â € œ the indivà duos are more important than the coisasâ € : he valued so the wedding the individual and family welfare at the expense of wool ³ gicas assets. But the route of the individualizaà throughout the TWENTIETH century comes still introduce new elements. The assertion of the equality between men and women is another sign of the individualizaà that is reflected directly in the marriage and makes a link between equals. Greater freedom in private life, more leeway as to individual driving of marriage and family life, greater assertion of individual rights in a relationship between pairs centred fundamentally in wool ³ affective gicas, are acquired from modernity. Is ‰ clear that the new model brings also new problems. The highest occurrence of couch ³ trade is one of them, but also to speak of generic form of increased risk, of uncertainty, of µ s or reverse the conflicts of loyalty. Are the mind effects mitigate counterparts, especially when the parties to the conflict are in µ s situation of clear asymmetry. Several are the indicators revealing the transformation µ s referred to, namely the processes of sentimentalizaà and of individualizaÃ, occur also in Portuguese society. The acceptance of the Ottoman trade ³ is practically generalized. A survey not national level applied in 1999, 83% consider that when there are problems in the life of the couple is justified the Divan ³ trade or that this is the solution to a bad marriage and 14% ³ agreed with the idea of the indissolubility of marriage. Already in 2002 these µ s position appear reinforces adas in responses to other survey, where only 4% claim that â € œ is better to have a bad marriage than not being married/a €  and 79% agree with the idea that â € œ when a couple can not solve their problems the Ottoman trade ³ 7 is the best solution oâ € . But more significant still is that in the last survey referred to, which was applied in 15 European ses paà Portugal to be one in which both women as men assume this position more inequà you, ahead of paà ses as France, Germany, Britain or Sweden, among others. The trend increasingly sharp of the divorced couple is in any return of their forms, shows, for your part, that higher rates of couch ³ trade does not mean necessarily devalue marriage, but by otherwise, which considers this too important in the life of each to be badly lived. The numbers also here are eloquent. Results of the European Social Survey, already behind said, reveal that being divorced tends to be a transient situation ³, going on in most paà ses, for one year, more married people who had ever divorced, than divorced. For Portugal the demographic statistics Estatà stay of INE, Instituto Nacional de Estatà "show also the constant and progressive increase in the number of divorced people who turn to marry: they are just 13% of marriages that took place in 2000 (8428 in 63752) 20% (9842 in 47857) of which took place in 2006. Register actually is that while marriages of 2000 to 2006 descend, remarriages by otherwise rise. This is another telltale indicators of what has come to be defended: the Ottoman trade ³ not represented by right in these cases the descrà © said of the wedding itself, and much less of the importance of family, but before the signal of the failure of a marital relationship is especÃ. Put obstacles to the couch when he trade ³ is decision of mutual agreement, or at least a desire of those involved, is raising obstacles and prevent the lifetime achievement of the projects of legal life. 1.3 How is secularizaà also in Portugal its effects are felt. What is in question is not necessarily the abandonment of religious references, but rather a retracà of these for more ntimas ball and assuming µ s dimension less consequential damages in other aspects of life. In terms of practices are available view other secularizaà indicators. The descent of weddings Catholic ³ catalog is one of them. From 90.7 in 1960, were down to 86.6% in 1970, 74.6% in 1981% 72.0%, in 1991,


8 66.4% in 1999 and finally to 52% in 2006 according to the data of the Estatà demographic characteristics stay the INE for 2006. 2. The project presents proposed µ and the disappearance of those days, â € œ paternalâ €  power by replacing her systematic way by practice € œ parentaisâ € responsibilities ⠝. In those days, change of is obviously implà quotes a conceptual change that is considered relevant. When overriding a those by other moves the center of attention: he is not the one who holds the â œ  â € € € might “ the adult in this case â € “ but in those whose rights if they want to safeguard, namely children. This change seemed crucial for several reasons. First of all, to those of the previous model implà µ and a supposed quote that points to the sense of possession, manifestly inappropriate in a time in which increasingly recognizes the child as a subject of rights. ‰ is right that in family read the custodial parent has always been considered a power/duty, but this is a specification technique that disappears in everyday use, allowing that in common parlance if do am understandings and conotaà of µ s old and misfits. Secondly, it is vital that it is from the point of view of children and their interests, and therefore from the responsibility of adults, which define the aftermath divan trade ³ references. Also so if it highlights the separation between the conjugal and parental relationship, assuming that the order of the first cannot be a pretext for the rupture of the second. In other words, the Divan ³ parents ' trade is not the couch ³ trade of children and these must be spared the lità watches that hurt their interests, in particular, if they are unable to maintain the relation affective and µ s loyalties both with their mothers as their parents. It is worth stressing, finally, that those of the now proposal accompanies the legislation µ s most paà ses Europeans who already there is a lot to spend. Furthermore, this project introduces a new article providing for punishment for failure to comply with the exercà parental responsibilities that cio is regarded as a crime of desobediÃ. Again so if you want to emphasize that the State should, through the various means at your fingertips, ensure the defence of the rights of children, usually silent part in this type of disputes among adults, where they do not comply with to be stipulated.

9 the imposià of exercà heat set parental responsibilities for the decision of large relevà µ of the lives of their children stems from respect for pious princà in the best interests of the child. Also here if follows the experience of jurisprudà and the legislation in force in ses which in paà have more time confronted with the rise of the Ottoman trade ³ they changed the system of parental responsibilities of cio exercà guard only to joint custody. This happened because they have been verified the perverse effects of the guard only, namely by the trend of greater parental clearance men of the exercà heat of their parental responsibilities and fragilizaà correlative of the affective relationship with their children. 3. The legislative changes now proposed µ in are General and abstract that apply, as is known, the indivà duos in different contexts and realities. The equal rights match often different µ s condition of your exercÃ, and reserves for this, as always happens in terms of law, a relevant role understanding and adaptation of the law to their workers. 30 after the entry into force of the reform of the Civil CODE of 1977 ³ say is still evident today that is equality of rights between men and women in marriage, consecrated actions, does not correspond to de facto equality. Numerous numbers are the indicators that reveal this inequality, obviously not exclusive of the Portuguese situation. We here just highlight one of these indicators that highlights the contributions inequality between women and men to family life. According to the report, human development River ³ 2007/2008 of the Nations United Nations, Portugal µ is the paà ses, among the high human development, with greater asymmetry in disfavor of women in working hours in and out of the market: they spend, in fact, more than 1 hour and a half per day than men. These differentials of time already had been also detected in two surveys conducted in Portugal, which, performed by separate teams, came to the same conclusion µ: adding up the hours of paid work with family care, Portuguese women contribute directly with more working hours than men. Other data showed that 70% of women still in our paà s contribuà am financially decisively to the family budget. Finally, they are also Mothers ones more hours worked in Portugal for the 10 market throughout the European Union of the fifteen. Is away, the Portuguese reality as well, the Division of the model work that attaches to the exclusive role of provider man family and is wife to be caretaker of the home and children. But insist that the work done by women in the family context, accumulated with the work today who play abroad, is not valued in the context of marriage and remains further invisà vel when the Ottoman trade ³. However, the recognition of the crucial importance for the condition of life and white balance µ brio of family life of the contributions of so-called reproductive sphere, that is, the care of the children and home work, is an acquisition the civilisation that still lacks to be truly embedded in the everyday reality in perception of Poland and jurà tip. If many times in terms of pious princà if is ready to consider maternity and paternity as eminent social values (art. 68° of the Constitution) is needed to promote your full lifetime achievement. à ‰ for take into account this lack of recognition and the asymmetries that are implà them Scythians, the draft establishes in the aftermath of the Ottoman trade ³ references, the possibility of assigning of credits of clearing, if asymmetry between the njuges in ´ contributions to the burdens of family life. Indeed, it is known that women's careers are often penalized in your progression because women, to meet family commitments, waive sometimes develop other activities in the professional plan can put r concerned ´ these commitments. Now when such resignations there are, and gender inequalities are not generally expected or practiced with regard to men, they ultimately put women at a disadvantage financially. It is why in the case of the conjugal dissoluà be fair â € œ that the code ´ njuge more sacrificed on the (DIS) white balance brio of the resignations and the damage, had the right to be compensated financially for this sacrifà excessivoâ € cio  (in, Oduntan, (2004), â € œ Two carneâ €  ³ a sane, in Ex aequo, n. º 10.) In this plan, it is worth remembering that due to the fact that it is women that custody of the children in situation of Ottoman trade ³ is assign the with more frequency, the µ s situation of loss and desequilà financial panache reach also the condition of life of the children µ. These still may worsen in the event of non-compliance


11 of assunà of parental responsibilities, in particular when there is a refusal or delay in service performance of food. Look for ways to increase the involvement and the role of parents, men, on services of care and support to their children, also following the couch ³ trade, is of course to ensure the rights of children to maintain the relations of affection so µ with mothers as parents, in addition to ensuring also the most igualitÃ, sharing of tasks between the sexes with benefà heat of everyone involved. 4. The couch ³ trade increased in recent 40 years in our societies for several µ g, among which we can highlight three fundamental. Firstly, it is necessary to take into account the recomposià of social and economic ³ µ s micas that resulted, at first, on the desruralizaà of societies and the growth of the middle classes. For the vast majority, in different social sectors, the strictly patrimonial aspects began to play minor role the family and the marriage. ³ wool traditional logic in that the family read, around the figure of the Patriarch, decided the marriage of children € “ the family read â founded the marriage â € “ becomes the wedded read modern family model from which defines what is marriage that founded the family. Most societies organized around wages depend on less ³ nio family heritage to take µ s decision around the conjugality, have more freedom to decide. It was a change that was operating in the course of the 20TH century and that deepened, stating new contours, in their last 40 years. Secondly, changed the way of looking at itself ³ the marriage. Given the centrality of the pertaining to the welfare of the indivà duos, went on to consider that in case of persistent disagreement on marriage the indivà duos do not would be required to maintain any price the institution. It is assumed, actually, be difà easy build harmony familiar about the sacrifice and the uneasiness of some of its members. Accept the Ottoman trade ³ became sign, not of abetting, but valorizaà of a happy couple and achieved. Remarry or father is, moreover, the practice of most divorcees in our societies. Thirdly, began to depend on less of marriage as way of life. The progressive entry of women into the labour market, ³ meno phenomenon more vision in Portugal since the numerous heat of 80 years, allows less dependency of 12 marriage as way of life, for both the njuges and ´ greater autonomy to end situation µ s persistently undesirable. The increase of ³ part trade couch, as emphasised in numerous cio, of a wider movement of µ s social transformation that was being accompanied in societies developed for changes in the legislation. More freedom and less constraints on this plan, not the left, on the other hand, also to bring up new issues µ s voltage and that the legislature was seeking to prevent. Being the marital rupture, with great frequency, an emotionally painful process, the trend has been also, to the legislative level and in the European ses paà in will serve as reference, to remove the estigmatizadora load and a wool ³ punitive logic of ID of the fault are ³ can worsen. Emphasizes the mutual agreement on marital breakdown. Encourages the use of forms of settling the conflict through the familiar CELAM as solution of proximity and to prevent painful and stressful legal entrainment is used. Whenever the mutual agreement is impossà mode and not there is consent of one of the parties, the law seeks to rely on objective grounds the profitability analysis of the rupture of the common life and the desire to not continue. On the other hand always required, with or without agreement, accuracy and brio white balance in the management of the aftermath divan ³ references, especially when trade there are children involved or µ s situation of asymmetry and fragility of one of the parties. The rights of children will be the referent at the timing of the exercà heat of parental responsibilities. Seeks to protect not the worsening of situation µ s of inequality and asymmetry between ´ njuges code, protecting the weaker. These were the main generic criteria that led to the project being proposed and µ. Explain below in greater detail the proposed changes.

II. Highlight now briefly changes µ s most important with regard to the current regime: 1. the Celam Familiar encouraged the disclosure of CELAM services family is imposing an obligation of information to code ´ njuges by the conservatà ³ and the courts.

13 2. Couch ³ trade by mutual consent Eliminates the need to make an attempt to conciliaà in divan ³ processes trade by mutual consent; If there was reason to doubt the effectiveness of the legal requirement, these questions seem more consistent when the ´ njuges are of the dissoluà agreement of marriage. The code ´ njuges not have to reach agreements complementaresâ € œ € ⠝ as a requirement of the couch, as happens today trade ³; the dissoluà of marriage depends only on the mutual agreement on the own ³ ³ divan trade itself. But, lacking any of the â œ €  € complementaresâ agreements, the application of trade must be ³ divan presented in court so that, in addition to determine the dissoluà of based on mutual consent, the judge decides the issues µ s on which the code ´ njuges not really turned a corner, as if it were a couch ³ trade without consent of one of the njuges code ´.

3. Couch ³ trade without the consent of one of the njuges code ´ remove couch mode ³ trade by culpable violation of marital duties â € “ the classic form of trade ³ divan-Rufous â € “ that has been systematically abandoned in paà ses in European herself, source of aggravation of previous conflicts, with prejuà zo for the ex-cà njuges and sons ´; The Divan ³ trade should not be a Rufous. ´ code njuge you want a divorce and not be able to reach an agreement for the dissoluÃ, will have to follow the path of so-called â œ € ³ rupturaâ € trade  divan, € œ objectivasâ causes € ⠝, namely the separation of fact. And in this mode of couch ³ trade, unlike what happens today, the judge will determine and will seek never graduating from guilt, to apply the µ s pecuniary penalty; move away now also these Rufous of patrimonial ³ µ s accessories. The discussion on fault µ, and also about damage caused by ilà acts, are beyond the explicit process of couch ³ trade. Shorten to a year relevà of deadlines of the fundamentals of the Ottoman trade ³ without consent of one of the njuges code ´. If the system € œ â rupturaâ € trade  ³ divan intends to recognize cases where the various matrimonial for cigarettes will lost regardless of the cause of this failure, there is no reason not to admit the relevà of other reliable indicators of the bankruptcy of 14 wedding. So, add a general clause that assigns the other facts which clearly show the manifest breach of marriage, regardless of the fault of the code njuges and ´ during any period. The example have peak, jurà systems European physicians, is the domestic violence â € “ feature that can show immediately the inexistà of the Fellowship of life own ³ pria.

4. Property consequences In case of couch ³ sharing trade shall be the like the njuges had been married code ´ in Fellowship of acquired, even though the agreed regime had been the General commonality, or a mixed procedure next nearest ³ of Fellowship Overview than the Fellowship of purchased; the Division will continue to follow the agreed regime in the case of dissoluà by death. It follows, at this point, the German law, which prevents the Divan ³ trade becomes a means of acquiring goods, beyond the fair sharing than if purchased with the common effort on the master instance constà ³ nio, and resulting sharing according to the Fellowship of acquired. Abandons the current system that takes advantage of the opportunity to reward the innocent and punish the guilty. It is said the princà Pius that the code njuge which contributes ´ manifestly more than was due to the burden of family life acquires a credit clearing what must be satisfied at the time of sharing. This is just another case where applies the princà pio General movements of enrichment or impoverishment that occur, for reasons various, µ s during the marriage, should no longer be compensated when they hit the final accounts of ³ heritage domains. In case of any of the trade ³ divan code ´ njuges loses the benefà cios that received or was received in consideration of the married state, only because the reason of benefà cios was the constà instance of the marriage. Also here departs the intention to punish a guilty and innocent. Requests for repair of damage will, in any case, judged in general terms of liability, the action ³ µ s own own; This is a corolà of the withdrawal of the appreciation of à ¢ scope of action ³ µ s couch trade.


15 5. Parental responsibilities µ Empire in the exercà heat set parental responsibilities, except where the Court understand that this regime is contrary to the interests of the child. The exercà heat set, however, refers only to the â œ € acts of particular importance nciaâ € ; responsibility for the acts of life œ € â quotidianaâ €  lies entirely to the parent with whom the child is. Gives for that the exercà heat set parental responsibilities keeps both parents committed to the growth of the child; It is said that it is concerned a public interest that it is up to the State to promote, rather than leave it to the free agreement of the parents; reduce the scope of the exercà heat set to anonymous “ to matters of € â â € œ nciaâ €  's particular importance. Sleek looking is jurisprudà and is set this doctrine à ¢ scope; It is expected that, at least in the princà pio of the application of the scheme, the relevant issues µ s existential issue summarize serious and rare, which belong am to essential core of rights that are recognized to children. It is intended that the scheme is praticà not € “ â as is in several European € paà ⠓ and ses for this to happen it may be advantageous to not force frequent contacts between the parents. So if you can overcome the traditional argument that divorced parents can not exercise parental responsibilities jointly. On the determination of the residence of the child, knowing things is the availability expressed by each of the parents to promote relationship µ s regular child with the other parent. The failure of the scheme on the exercà heat of parental responsibilities â € “ approved by the competent authority on the basis of an agreement of the parents or determined by the Court â € “ passes a desobedià crime, under the criminal law. It is intended to decrease the ease with which they despise the µ s of the courts decision and change the habits and expectations of the children, in this matter.

6. Food between ´ njuges ex-cà Says the princà pio that every ex-cà should provide your ´ njuge is subsistÃ, and that the obligation of food has a temporary nature character, although it can be renewed periodically.

16 remove the appreciation of guilt as a factor relevant to the assignment of foods, because if you want to reduce the question to your core essential â € “ the assistance you need for who's got possibilities. But gauging the th-that, in special cases the judges easily identificarÃ, the right to food is denied to the ex-cà required for njuge ´ be shocking encumber the corresponding obligation. It is said the princà pio of the maintenance creditor does not have the right to maintain the pattern of life that came while he was married. The marriage did not last forever cannot guarantee a certain level of not living forever. The prevalence of any obligation of the debtor in respect of food children of food, respect is obligation arising from the Ottoman trade ³ in favor of ´ njuge ex-cÃ.

7. The Affinity affinity ceases with the dissoluà of the marriage by divorce ³ divan; the relevà of jurà and social permanà the tip of these go for cigarettes will, following the Ottoman trade ³, there is much that performed more than doubtful.

Thus, in accordance with legal and constitutional regulations applicable, the Members of the Socialist Party petitions the following Bill: µ s legislative changes Article 1. º change to the Civil CODE ³ say articles 1585. Â, ° 1676, 1773., 1774, 1775 Â. Â, ° 1776, 1778. Â, °-1778 .1779. Â, ° 1781, 1785, 1789 Â. ° , 1790, 1791 Â. Â, Â, 1792 1793., 1901., 1902., 1903., 1904., 1905., 1906., 1907., 1908. Â, ° 1910, 1911, 1912 Â. °, 2016. Â, redacà replaced by the following: «Article 17 1585. ° and cessaà Elements of the affinity affinity determines the same degrees and rows that define the relationship and does not cease by the dissoluà , by death, of marriage.

Article 1676.  [â € ¦] 1. [â € ...] 2. If the contribution of one of the code njuges for the costs of ´ family life exceeds the part that clearly belong in accordance with the previous number, this code njuge ´ becomes lender the other by there is contribuà of the beyond the part; but this credit are ³ is currently level requirements of the Division of property of the spouses, except that force the regime of separation. 3. [â € ...]

Article 1773. [â € ¦] 1. The Divan ³ trade can be by mutual consent or no consent of one of the njuges code ´. 2. The couch ³ trade by mutual consent may be requested by both code ´ njuges by common accord in conservatà ³ ria civil registrar, or the Court, in this case, the couple has not been able to agree on any of the matters referred to in paragraph 1 of article nº 1775 Â. Â. 3. The couch ³ trade without consent of one of the required code ´ njuges is in court by one of the njuges code ´ against each other, with any of the grounds referred to in article 1781Â.



Article 18 1774. ° (the Celam family) before the numerous heat process of couch conservatà ³ ³ the trade of civil registration or the Court shall inform the ´ njuges on the existence and objectives of the CELAM services of the familiar.

Article 1775. ° (application and statement of the process on conservatà ³ of civil registration) 1. The Divan ³ trade by mutual consent can be introduced at any time on conservatà ³ of civil registration, by petition signed by ´ njuges code or their attorneys, accompanied by the following documents: a) specified relationship of common goods, with indication of their values, or if the code ´ njuges choose proceed to share of those goods in accordance with article 272. º-the 272. C Decree-Law No 324/2007 ° , 28 September, agreement on sharing or application for drawing up of the same; b) Certidà of the sentence the Court has set the parental responsibilities or cio exercà agreement on the exercà heat of parental responsibilities when there are minor children and has not previously been timing of the lawsuit; c) agreement on the service performance of the code njuge which careà ´; d) agreement on the fate of the family address House lia; and) Certidà the deed to the Convention the contract, if it has been celebrated; 2. If something else does not work the documents submitted, it is understood that the agreements are intended both to perà odo of pendà of process as to perà odo later.



Article 19 1776. ° (procedure and decision on conservatà ³ of civil registration) 1. Received the application, the curator calls the code njuges for a ´ Conference in which checks fulfilment of the legal assumptions and appreciates the agreements referred to in the handle), c) neas and d) of paragraph 1 of the preceding article # Â, inviting the ´ njuges to change them if those agreements do not prevent the interests of any of them or their children, and may determine for that purpose the practice of acts and the production of evidence eventually required , and decrees, then the Ottoman trade, ³ to the corresponding registration, except as provided in articles 1777. º-the ... 2. à ‰ applicable articles 1420. Â, Â, 1422 n. º 2 and 1424.  º ³ say code of Civil procedure, with the necessary adaptation µ s. 3. The µ s decision delivered by the conservative civil registrar on the couch ³ trade by mutual consent produce the same effects of judicial sentences on identical as matter.

Article 1778. ° (referral to the Court) If the agreements presented does not act sufficiently the interests of one of the njuges, and even code ´ in the case referred to in paragraph 5 of article no. 1777 Â. °-, the homologaà should be rejected and the process of couch ³ trade is fully referred to the Court of the judicial district to which belong to the conservatà ³ ria , followed by the terms laid down in Article 1778.  º-A, with the necessary adaptation µ s.

Article 1778 ' (application, statement and decision of the Court) 1. The application of couch ³ trade is presented in court, if the code ´ njuges not follow some of the agreements referred to in paragraph 1 of article nº 1775 Â. Â.

20 2. Received the application, the judge enjoys the agreements that the njuges have presented ´, inviting the ´ njuges to change them if those agreements do not prevent the interests of any of them or their children. 3. The judge sets out the consequence of experiences on trade issues µ ³ divan es referred to in paragraph 1 of article number Â. 1775. ° about the code ´ njuges not have submitted deal, as if it were a couch ³ trade without consent of one of the njuges code ´. 4. For both the appreciation of referred to in paragraph 2 and to fix  the aftermath divan ³ references trade, the judge can determine the practice of acts and the production of evidence eventually needed. 5. The Ottoman trade ³ is enacted then proceeding to the corresponding record. 6. In the determination of the aftermath divan ³ references trade, the judge must always not ³ promote, but also take into account the agreement of ´ njuges code. 7. ‰ is applicable to the Divan in court trade ³ n ° article 4 1777. º-the.

Article 1779. ° (attempted conciliaÃ; ³ divan conversion without consent of one of the trade code njuges in ´ couch ³ trade by mutual consent)


1. In the process of trade ³ divan without consent of one of the code will always njuges ´ an attempt to conciliaà the code ´ njuges. 2. If the attempt to conciliaà does not work, the judge will seek to get the agreement of the code njuges for ³ divan ´ trade by mutual consent; with the agreement or with the njuges code ´ process at any time, opted for this modality of Ottoman trade ³, follow the terms of the Ottoman trade ³ process by mutual consent, with the necessary adaptation µ s.

Article 1781. ° (ruptured marriage) are the Foundation of the Ottoman trade ³ without consent of one of the 21 code njuges: ´) the separation of fact for a consecutive year; b) the change of the mental faculties of the other code ´ njuge, when last more than a year and, by your gravity, compromise the possibility of life in common; c) absence, without the absent there is news, not less than one year. d) Any other facts which, regardless of the fault of the dog, show njuges ´ definitive break from the wedding.

Article 1785.  [â € ¦] 1. The Divan ³ trade may be required by any of the code njuges on the ground of ´ in neas a) and (d)) of article 1781Â; with the fundamentals of addition neas b) and (c)) of the same article are ³ may be required by code ´ njuge which invokes the change of the mental faculties or the absence of the other. 2. When the code ´ njuge to ask the couch is prohibited trade ³, the action can be brought by your legal representative, with the authorization of the Board of family read; When the legal representative is the another code njuge, ´ action may be brought, in name of the holder of the right to act, by any relative in a straight line or to the third degree of the collateral line, if it is also authorized by the family Council. 3. The right to trade ³ divan is not transmitted by death, but the action can be continued by the author's heirs to property consequences, if the author died in pendà of the cause; to the same effect, can the action proceed against the heirs of rà © u.

Article 1789. Â [â € ¦] 1. [â € ...] 2. If the separation in fact between the njuges is found in ´ process, any of them may require the effects of trade retroajam ³ couch date, that the sentence fixarÃ, in which the separation has begun.

22 3. [â € ...]

Article 1790.  [â € ¦] In case of couch ³ trade, none of the njuges sharing code ´ can receive more than they would receive if the marriage had been celebrated in accordance with the scheme of the Fellowship of acquired. Article 1791.  [â € ¦] each cà njuge ´ loses all benefà cios received or received from another code njuge or ´ third, in view of the marriage or in consideration of the married state, wants the estipulaà is earlier than you want to later is the celebration of the marriage; the author of liberality might determine that the cio benefà revert to the children of the marriage.

Article 1792. ° (repairing the damage) 1. The code njuge ´ aggrieved has the right to demand the repair of the damage caused by another in general terms of liability and in common courts. 2. The code you requested couch njuge ´ ³ trade on the grounds of in nea b) of article 1781Â, must repair the damage not caused to other patrimonial ´ njuge code for dissoluà of the marriage; This request must be deducted in the pria ³ action of couch ³ trade.

Article 1793.  [â € ¦] 1. [â € ...] 2. [â € ¦] 23 3. The fixed regime, either by homologaà the agreement of the njuges code ´ or by decision of the Court, can be amended as set out in general terms of jurisdiction volunteer.

Article 1901. ° (parental Responsibilities on the master instance constà ³ nio) 1. On the master instance constà ³ nio, the exercà heat of parental responsibility belongs to both parents.

2. Parents exercising parental responsibilities jointly and, if this lack in µ s issues of particular importance, either of them may appeal to the Court, which will attempt to the conciliaÃ; If this is not possible, the Court could ouvirà the child, before deciding, unless compelling circumstances the desaconselhem.

Article 1902.  [â € ¦] 1. If one of the parents practice Act incorporating the exercà heat of parental responsibilities, it is assumed that acts according to the other, except where the law expressly requires the consent of both parents or the case of Act of particular importance; the disagreement is not oponà the third level of good faith. 2. The third party shall refuse to intervene in the Act practised by one of the parents when, in accordance with the previous number, do not assume the agreement from each other or when meet the opposition of this.

Article 1903. [â € ¦] When one of the parents can not exercise parental responsibilities for the absence, incapacity or other impediment, sleek looking is this exercà heat only to the other parent.

24 Article 1904. (death of a parent) For the death of a parent, the exercà heat of parental responsibility belongs to survive.

Article 1905. ° (food due to son in case of couch ³ trade, judicial separation of persons and property, the Declaration of nullity or annulment of marriage) in the case of couch ³ trade, judicial separation of persons and property, the Declaration of nullity or annulment of marriage, the food due to the son and the pay will be regulated by agreement of the parents subject to homologaÃ; the homologaà will be refused if the agreement does not correspond to the interests of the minor.

Article 1906. ° (Exercà cio parental responsibilities in case of couch ³ trade, judicial separation of persons and property, the Declaration of nullity or annulment of marriage) 1. Parental responsibilities relating to issues µ s of particular importance for the life of the son are exercised jointly by both parents, in terms that were in effect on the master instance constà ³ nio, except in cases of manifest string urgÃ, in that any parent can act alone, and should provide information µ s to each other as soon as they could. 2. When the exercà heat in common parental responsibilities relating to issues µ s of particular importance for her son's life is judged contrary to the interests of this, should the Court, through reasoned decision, determine what those responsibilities are exercised by one of the parents. 3. The exercà heat of parental responsibilities regarding acts of the current child life fit the parent with whom he habitually resides, or to the parent with whom he finds himself temporarily; However, this last, in exercising their responsibilities 25, should not contradict the guidance µ s most relevant educational, as they are defined by the parent with whom the child habitually resides. 4. The parent who is the exercà heat of parental responsibilities regarding acts of the current life can exercà th them by themselves or delegate your exercà heat. 5. the Court determinarà the residence of the child and visiting rights according to the interest of this, taking into attention all the relevant circumstances, in particular the agreement of the parents and the availability expressed by each of them to promote µ s usual relationship of the child with the other. 6. The parent that does not exerÃ, in whole or in part, parental responsibility has the right to be informed about your exercà mode, in particular on the education and the conditions of life of the son µ. 7. the Court decidirà is always in line with the interest of the minor, including maintaining a relationship of close proximity with both parents, promoting and accepting agreements or taking µ s decision to favoreà § am ample opportunities of contact with both and sharing of responsibilities between them.

Article 1907. ° (Exercà cio parental responsibilities when the child is entrusted to a third person) 1. By agreement or judicial decision, or when any of the circumstances provided for in article 1918Â, the child can be trusted is third-person guard. 2. When the child is entrusted to a third person, the powers and duties of the parents that are required for the appropriate performance of its µ s function. 3. The decidirà Court in what terms will be exercised parental responsibilities in part is not undermined by the provisions of the previous number.

Article 1908.  [â € ¦] when any of the circumstances provided for in article 1918Â, can the Court to regulate the exercà heat of parental responsibilities, deciding that if passed the 26 parent to whom the minor is delivered, does not pass to survive; the Court is designarà then the person provisionally, the minor will be trusted.

Article 1910.  [â € ¦] If the affiliation of a minor born out of wedlock to meet established only as a parent, this is owned by the exercà heat of parental responsibilities. Article 1911. ° (the Affiliation established as both parents living in µ s condition long HTC at the code ´ njuges) 1. When the affiliation is established for both parents and these live in µ s condition long HTC at the njuges, ´ code applies to the exercà heat of parental responsibilities articles 1901 to 1904 Â. Â. 2. In the case of cessaà of the convivà among the fathers, are applicable the wrapping µ s articles 1905.  º the 1908. Â.


Article 1912. ° (the Affiliation established as both parents who do not live in µ s condition long HTC at the code ´ njuges) 1. When the affiliation is established for both parents and they do not live in µ s condition long HTC at the njuges, ´ code applies to the exercà heat of parental responsibilities article 1904.  º the 1908. Â. 2. In the framework of the exercà ¢ cio in common parental responsibilities, the wrapping µ s articles 1901.  º and 1903. Â.



27 Article 2016.  [â € ¦] 1. Each code must provide your ´ njuge is subsistÃ, after the Ottoman trade ³. 2. Any of the code ´ njuges are entitled to food, regardless of the type of couch ³ trade. 3. For reasons of equity, µ s clear the right to food can be denied. 4. [â € ¦]» Article 2.  º ³ Civil CODE addition to tell are added to the Civil CODE ³ say 1777 Articles °-, 2016.  º-A, article B ' 2016, 2016. ° C, with the following redacÃ:  «Â 1777 (agreement on the exercà heat of parental responsibilities) 1. When it is presented on the exercà heat of parental responsibilities for minor children, the process is sent to the Ministry by the public court of 1. ª instance competent for reason of matter on the part of circunscrià ¢ to that belong to the conservatà ³, to rule on the agreement within 30 days. 2. If the Public Ministry considers that the agreement is not the duly cautions the interests of minors, can applicants change the agreement accordingly or present new agreement, in this last case given new view to the Public Ministry. 3. If the Public Ministry considers that the agreement preserves the interests of minors or having the njuges changed the agreement ´ in the terms indicated by the Public Ministry, it follows the provisions of sentence ° 1 of the preceding article. 4. The failure of the system fixed on the exercà heat of parental responsibilities constitute a crime of desobedià of criminal law.

28 5. In µ s situation in which applicants do not comply with the µ s changes indicated by the Ministry public and maintain the proposed ³ sito of divorcing, applies the provisions of Article 1778. Â.

Article 2016. º-the Amount of food 1. In fixing the amount of food must the Court take into account the duration of the marriage, the collaboration provided is the couple's savings, the age and State of health of the njuges, their code ´ MSC µ s professionals and employment opportunities, the time will have to dedicate, eventually, creation of common children , their income and earnings, a new marriage or de facto Union and, more generally, all the circumstances that influence the needs of njuge receiving ´ foods and possibilities than the pay. 2. The Court shall give the prevalence of any obligation of food for a child of the debtor on the njuge code ´ obligation arising from the couch ³ trade in favor of the ex-code ´ njuge. 3. The code njuge ´ creditor does not have the right to maintain the life pattern that benefited in the master instance constà ³ nio.

Article 2016. °-B duration the obligation of foods must be established for a limited period, although perà renewable, safe µ g/l s powerful.

Article 2016.  C separation for legal goods pursuant to previous numbers is applicable to the case being declared the judicial separation of persons and property. » 29 Article 3. º revogatà ³ Standard ria are 1780 articles repealed. Â, ° 1782, n. º 2, 1783 Â. °, 1786 and 1787 Â. à º ³ say Civil Code.

Article 4. º change to those of the expression â € œ paternalâ €  power must be replace the by € œ parentaisâ € ⠝ responsibilities in all legal acts and the reboot µ s officers.

5. Article  º begins the entire duration of the present law shall enter into force 30 days after ³ s to your publication.

MEPS 10.04.2008