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Proposal for Law No. 7/XI/1.

Exhibition of Motives

I. The Programme of the XVIII Constitutional Government, with the democratic legitimacy that

stems from the popular mandate and the whole fidelity to an electoral commitment

explicitly assumed, proposes to " remove the legal barriers to the realization of the

civil marriage between people of the same sex ". That is exactly the purpose of the present

Proposal for Law, which the Government presents to the Assembly of the Republic.

This legislative initiative intends, above all, to put an end to old discrimination, long

and comprehensively debated in Portuguese society. A discrimination, without a doubt,

causative cause of exclusion and suffering for many people-and that the evolution of consciousness

social makes today not only unnecessary but truly unacceptable.

II. On the understanding recently perfiled by the Constitutional Court (Judgment

n ° 359/2009 of July 9), the Portuguese Constitution, in the whole of its principles and

relevant provisions, provides an open constitutional-constitutional framework as to the

freedom of conformation of the legislator in relation to marriage between people of the same

sex. In fact, it can be read in the said Judgment: " In the handling of the question of whether the right

of contrair marriage provided for in the constitution should be extended to marriage between homosexual people

should therefore be excluded want the understanding according to which this extension would not involve a redefinition

judicial of marriage, wants the understanding according to which the marriage object of constitutional guardian

involves a petrification of marriage such as this is today defined in civil law " . Thus, in the understanding of the

Constitutional court, if it is right that the Constitution, as much as it is up to the judiciary

affer, does not impose on the legislator who necessarily consents to the possibility of marriage

between people of the same sex, it is also certain that it does not prevent the legislator from consecrating him

in the name of an alleged "petrification" of the legal definition of marriage

constitutionally tuteled-which is not to admit.

Incidentally, to better explain and frame the position of the legislator, the same Judgment of the

Constitutional court summons, in deeply significant way, jurisprudence

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per se previously fixed by the purpose of the constitutional principle of the " dignity of the person

human " (Judgment No 105/90). In the terms of that case law, " if the content of the idea of

dignity of the human person is something that necessarily has to realize historical-culturally, already if

sees that in the modern state-and beyond the projections of that idea that they find soon translation at the level

constitutional on specific principles of the fundamental law (...)-there is-to fit primacy to the legislator

that realization: especially vocationally, in the framework of the different organs of sovereignty, for the

"creation" and the "dynamisation" of the legal order, and democratically legitimised for so much, is to the lawmaker

that is, therefore, entrusted, in the first line, the task or the burden of, in every historical moment, "read",

translate and verter in the corresponding planning what at that time are the elapses, implications

or demands of the "open" principles of the Constitution (such as, justly, the principle of the " dignity of the

human person ") (...). In that situation above all-in which there is to be recognized and admitting itself as legitimate,

in the legal community, a mundividential "pluralism" or conceptions-no doubt will fulfill the

legislator (to the democratic legislator) opt in and decide " .

In good rigour, this understanding is not limited to confirming and substantiating the freedom of

conformation of the ordinary legislator to "opt in and decide" as to the marriage between

people of the same sex. It does more than this: it acknowledges and confers on the lawmaker-

democratic legislator-the task of, in this historic moment, having present the evolution

social, "read, translate and verter" in legal planning as " elapses, implications, or

requirements of the open principles of the Constitution ". And, truly, this is what this is all about.

The legislative movement that is proposed here, even if it does not consider itself imposed by the

judicial reading of the Constitution, has clearly root in the constitutional principles of the

dignity of the human person and equality; takes into account the prohibition

constitutional of any discrimination on the grounds of sexual orientation (expressly

enshrined in Article 13 of the Constitution, in the follow-up to the VI Constitutional Review, of

2004); it has present the fact that the Constitution guarantees everyone the right to constitute family

and of contracting marriage under conditions of full equality (vd. n Article 32 (1) of the

Constitution) and assumes, in the use of the said "freedom of conformation", the answer

legislative that appears more consentful with these structuring values and with the

evolution of social reality.

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III. The institute of marriage, will be told to underline it, has suffered over the times mutations

significant. Today, as a project of full communion of life, formally celebrated

and socially and legally recognized, it is not understood that it is vetted to those who, in

reason for your free sexual orientation, want to realize it with another person of the same

sex. Such exclusion appears, in itself, objectively discriminatory, in addition to

implicate, at least in the current legal framework, totally unfair restrictions on the equality of

access to certain rights. In addition, and perhaps more serious than anything, the legal prohibition

of same-sex marriage, in growing confrontation with the evolution of the

social consciousness, runs at least the risk of constituting itself as a powerful

factor inducing less tolerant or even discriminating social representations in reason

of sexual orientation.

IV. The legislative initiative that now sets out to be enrolled in a more legislative movement

ample that, since some time ago, has been promoting a systematic re-evaluation of our

legal planning, in the sense of combating the situations of discrimination of the

homosexuals from this movement should underline, by way of example, the

decriminalization of homosexuality, in 1982; the extension to homosexual couples of the

legal regime of de facto unions, in 2001 and the already mentioned prohibition of any

discrimination on the grounds of sexual orientation, introduced in the constitutional revision of 2004,

as a corollary of the principle of equality.

V. Identical steps have been taking place in a number of other countries-with emphasis on

our neighbor Spain, the Netherlands, Belgium, Sweden, Norway, South Africa and the

Canada, in addition to a few States of the United States of America. All these

experiences, naturally still recent, confirm that this legislative amendment to nothing

contributes to decreasing the social value of the family and, on the contrary, by eliminating a restriction

discriminative, has the sense of valuing and promoting access to civil marriage and the

constitution of the family, in its diversity.

VI. In these terms, the Proposal for a Government Act eliminates the relevant provisions of the

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Civil code the references that treat marriage as contract necessarily

concluded between persons of different sex, exercise which involves modifying the wording of the

articles 1577, 1591 and 1690, as well as eliminating the e) of Article 1628 of the said

Code.

VII. It matters that it becomes clear that the present Proposition of the Government Act says only

respect for civil marriage between people of the same sex and not the adoption, which is a matter

well distinct. The electoral commitment on which the Government Programme is based-and the

public debate that has been associated with it-circumscribing, in fact, to access to marriage

civil. Consequently, it is that, and not another, the scope of the democratic mandate that

legitimize this initiative of the Government and its approval by the Assembly of the Republic.

Thus, the Government's Bill of Law departs, clearly and explicitly, any implication

of the changes now made to the regime of access to marriage in the matter, well

diverse, which is the legal admissibility of adoption, in any of its modalities, by

married people with a spouse of the same sex. Such implication is, therefore, expressly

rejected by the legislator, vedaning, also expressly, any interpretation in

Contrary to any of the current legal provisions in respect of adoption-where

if they include, of course, the constants of the Civil Code. From here it results, for example, and without

margin for doubt, which when in adoption the law states that they may adopt

"married persons" shall interpret such provisions in the light of the legal framework prior to the

modifications now introduced, i.e. so as not to confer such a faculty of adoption on

people who, under this legislative modification, have concluded civil marriage with another

of the same sex.

It cannot be forgotten, incidentally, that while in the civil marriage between people of the same

sex we are faced with the free option of two persons, on the grounds of their also free

sexual orientation, adoption involves the interests of a third party-a child on guard

of the State.

On the other hand, it is not here, in any way, in the face of discrimination in access to

a right, as it cannot even be talked about, nor does it exist, in a sense of its own, a

true "right to be adopted" and much less as a "right of the spouses" or

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"inherent" to civil marriage. On the contrary, what the law regulates (in articles 1979 and 1992.

of the Civil Code) are the requirements that allow to determine who "may adopt", full

or tightly-which is a very different thing to confer a right. In fact, when setting

such requirements the law is, is-only, to determine who is to "apply" to the

condition of adopter. It follows that such requirements, such as the whole regime of adoption,

are not intended to meet any "rights of the adopters", to which there was to access

on a level playing field, but rather to ensure respect for the superior interests of the

adopting. For that reason, Article 1974 of the Civil Code, when setting the general requirements of the

adoption, establishes taxactively that the adoption " it will only be enacted when it presents real

advantages to adopting it " . It is that criterion, which takes into account the superior interest of a

third-the child-who must northering the lawmaker in determining who " can

adopt ".

In that measure, taking into account the objectives of the adoption regime and the social framework and

involving scientific, as well as the terms and limits of the democratic mandate that

legitimizes the present legislative initiative, it is justified to establish that the adoption is not

available on the part of married persons with a spouse of the same sex. And that's the sense

of the Government Proposal.

VIII. The deep belief of the Government is that the removal of legal barriers to the

civil marriage between people of the same sex will constitute a major breakthrough, no doubt of

enormous significance, in the sense of a more tolerant and fairer society, with more

equality for all.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Subject

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The present law allows for civil marriage between persons of the same sex.

Article 2.

Changes to the marriage regime

Articles 1577, 1591 and 1690 of the Civil Code, shall be replaced by the following:

" Article 1577.

Notion of marriage

Marriage is the contract concluded between two persons who intend to constitute

family by a full communion of life, pursuant to the provisions

of this code.

Article 1591.

Ineffectiveness of the promise

The contract by which, by the title of sponges, disposons or any other,

two people commit themselves to contracting marriage does not entil to demand the

celebration of marriage, nor to complain, in the lack of fulfillment, other

compensation other than those provided for in Article 1594 even when

resulting from criminal clause.

Article 1690.

Legitimacy for contracting debts

1-Any of the spouses have legitimacy to borrow debts without the

consent of the other.

2-[...]. "

Article 3.

Adoption

1-The amendments made by this Law do not imply the legal admissibility of the

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adoption, in any of its modalities, by married persons with spouse of the

same sex.

2-No legal provision in respect of adoption may be interpreted in a sense

contrary to the provisions of the preceding paragraph.

Article 4.

Abrogation standard

It is repealed at para. e) of Article 1628 of the Civil Code.

Article 5.

Final disposition

All legal provisions regarding marriage and its effects should be interpreted to the

light of this Law, regardless of the gender of the spouses, without prejudice to the provisions of

in Article 3.

Seen and approved in Council of Ministers of December 17, 2009

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs