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PRESIDENCY of the COUNCIL of MINISTERS 1 Proposal of law No. 7/XI/1st explanatory memorandum i. the EIGHTEENTH Constitutional Government program, with the democratic legitimacy that stems from the popular mandate and the sole allegiance to an electoral commitment explicitly assumed, ' remove the legal barriers to the realization of civil marriage between persons of the same sex '. That is exactly the purpose of this Bill, the Government presents to the Assembly of the Republic. This legislative initiative aims, above all, put an end to an old discrimination, long and thoroughly discussed in the Portuguese society. Discrimination, no doubt, cause of exclusion and suffering for many people – and that the evolution of social conscience makes today not only unnecessary but truly unacceptable. II. The understanding recently shared by the Constitutional Court (judgment No. 359/2009, of 9 July), the Portuguese Constitution, in all its principles and relevant provisions, provides a legal and constitutional framework about the freedom of open conformation of the legislature on marriage between persons of the same sex. In fact, you can read in that Judgment: "in the treatment of the question of whether the right to contract marriage laid down in the Constitution should be extended to marriage between homosexuals should be excluded either the understanding according to which this extension wouldn't involve a redefinition of marriage, whether the understanding according to which marriage the subject of constitutional supervision involves a petrification of marriage as this is now defined in civil law '. So, in the opinion of the Constitutional Court, if it is true that the Constitution, as much as it is for the judiciary measure, does not impose the legislature necessarily endorsing the possibility of marriage between persons of the same sex, it is also true that does not prevent the legislature to devote on behalf of an alleged ' petrification ' of the legal definition of marriage constitutionally safeguarded-that is not admitted.
Moreover, to better explain and frame the legislator's position, the same judgment of the Constitutional Court convenes, so profoundly significant, the PRESIDENCY of the COUNCIL of MINISTERS 2 for you previously set the purpose of the constitutional principle of ' human dignity ' (judgment No. 105/90). In accordance with that case-law, ' if the content of the idea of human dignity is something that necessarily has to happen culturally-historical, I see that in the modern State – and beyond the projections that idea to find soon translated into constitutional level in specific principles of the Basic Law (...) -are you going to fit primarily the legislator that achievement: specially designed, within the framework of the different organs of sovereignty, for the ' creation ' and ' pivot ' legal order, and democratically legitimized for both, is the lawmaker who is therefore entrusted, in the first line, the task or assignment in each historical moment, ' read ', translate and pour in the corresponding planning what at this point are the decorrências implications or requirements, the principles «open» of the Constitution (such as the principle of «human dignity») (...). In this particular situation – in which there are to be recognised and admitted as legitimate, in the legal community, a ' pluralism ' mundividencial or conceptions – no doubt will fulfill to the legislator (the democratic legislature) choose and decide '. In good accuracy, this understanding is not limited to confirm and support the freedom of conformation of the ordinary legislator to ' choose and decide» about same-sex marriage. Does more than that: recognizes and gives the legislature-democratic legislator-the task of, at this historic moment, bearing in mind the social evolution, ' read, translate and shed» the legal system ' decorrências, implications or requirements of open principles of the Constitution '. And, really, that's what it's about. The legislative movement that proposed, even though he considers imposed by judicial Constitution reading, clearly has roots in constitutional principles of human dignity and equality; takes into account the constitutional prohibition of any discrimination on grounds of sexual orientation (expressly enshrined in article 13 of the Constitution, following the Constitutional Revision of 2004 SAW); has the fact that the Constitution guarantee everyone the right to found a family and to enter into marriage in conditions of full equality (vd. paragraph 1 of article 32 of the Constitution) and takes in the use of the referred to ' freedom ', forming the legislative response seems more consistent with these structural values and with the evolution of social reality.
PRESIDENCY of the COUNCIL of MINISTERS 3 III. The Institute of marriage, we should underline it, suffered significant changes over time. Today, while draft full communion of life, formally concluded and legally recognized social, it is incomprehensible that is denied to those who, because of their sexual orientation, free want to achieve with another person of the same sex. This exclusion seems to be, in itself, discriminatory, is objectively beyond imply, at least in the current legal framework, totally unfair restrictions on equal access to certain rights. In addition, and perhaps most serious of all, the legal prohibition of marriage between persons of the same sex, in growing confrontation with the evolution of social conscience, run at least the risk of constituting itself as a powerful social representations inducing factor less tolerant or even discriminatory on the grounds of sexual orientation. IV. legislative initiative now proposes is part of a broader legislative movement that, for some time, has promoted a systematic re-evaluation of our legal system, in order to combat the discrimination of homosexuals this movement should be noted by way of example, the decriminalization of homosexuality, in 1982; the extension to homosexual couples the legal regime of de facto unions, in 2001 and the already mentioned prohibition of any discrimination on grounds of sexual orientation, introduced in 2004, constitutional review as a corollary of the principle of equality. V. Steps have been identical data in many other countries – especially for our neighbor Spain, Holland, Belgium, Sweden, Norway, South Africa and Canada, in addition to some States of the United States of America. All these experiences, naturally still recent, confirm that this legislative amendment in does nothing to diminish the social value of the family and, on the contrary, by eliminating a discriminatory restriction, has the sense of valuing and promoting access to civil marriage and the family, in all its diversity.
VI. In these terms, the Government Bill eliminates the relevant provisions of the PRESIDENCY of the COUNCIL of MINISTERS Civil Code 4 references which treat marriage as necessarily agreement concluded between persons of different sex, exercise that involves modifying the wording of articles 1577.º, 1591.º and 1690.º, as well as delete the subparagraph (e)) of article 1628.º of this code. VII. it is important to make it clear that the present proposal of the Government Law only concerns the civil marriage between persons of the same sex and no to adoption, which is very distinct issue. The election commitment underpinning the Government's Program and the public debate that was associated with him-is limited, in fact, access to civil marriage. Consequently, that is, and not another, the scope of the democratic mandate that legitimizes this Government initiative and its approval by the Assembly of the Republic. Thus, the proposal of the Government, clearly and explicitly, any implication of the amendments introduced into the regime of access to marriage as well, which is the legal admissibility of adoption in any of its modalities for married people with same-sex spouse. Such implication is, therefore, expressly rejected by the legislature, sealing, specifically, any interpretation to the contrary of any legal provisions in force relating to adoption-including, of course, the constants of the Civil Code. It follows, for example, and without doubt that when relating to adoption the law States that may adopt ' married people ' should be interpreted these provisions in the light of the previous legal framework to the changes now introduced, that is, so as not to confer such Faculty of adoption to persons who, under this legislative modification, celebrated civil marriage with another of the same sex. Can't forget that while in civil marriage between persons of the same sex is the free option of two people because of their sexual orientation, free also the adoption involves the interests of a third party-a child in the custody of the State.
On the other hand, if you're not here in any way, in the face of discrimination in access to the right, since you can't even speak, nor is there, in a real sense ' entitled to adopt ' and much less as a law of the spouses ' or ' PRESIDENCY of the COUNCIL of MINISTERS 5
' inherent ' to civil marriage. On the contrary, what the law regulates (in articles 1979.º and 1992.º of the Civil Code) are the requirements that allow you to determine who ' may take ', broad or narrowly-what is very different from a right. In fact, in setting such requirements, the law only, to determine who can ' apply ' to the status of adopter. Well, it turns out such requirements, as the entire system of adoption, not intended to satisfy any ' adopters ' rights, there was that access under equal conditions, but rather to ensure respect for the best interests of adopting. For this reason, article 1974.º of the Civil Code, to establish the General requirements of adoption, lays down explicitly that ' will only be enacted when real advantages to adopting». Is this criteria, which takes into account the best interests of a third party-the child-which must guide the legislator in determining who ' adopt '. In this respect, taking into account the objectives of the system of adoption and the social and scientific framework, as well as the terms and limits of the democratic mandate that legitimizes this legislative initiative, it is appropriate to provide that the adoption is not available by the married people with same-sex spouse. And that is the sense of the proposal of the Government. VIII. The deep conviction of the Government is that the removal of legal barriers to civil marriage between persons of the same sex will be a breakthrough, without doubt of great meaning, towards a more tolerant and fairer society with more equality for all. So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: Article 1 subject-matter PRESIDENCY of the COUNCIL of MINISTERS 6 this law allows civil marriage between persons of the same sex. Article 2 amendments to the marriage articles 1577.º, 1591.º and 1690.º of the Civil Code, shall be replaced by the following: ' Article 1577.º notion of marriage is the marriage contract between two people who want to start a family by a full communion of life, in accordance with the provisions of this code. Article 1591.º ineffectiveness of promise the contract whereby, as a betrothal, desposórios or any other two people commit to marry does not entitle to demand the conclusion of the marriage, or to claim, in the absence of compliance, other claims other than those referred to in article 1594.º even when resulting from criminal clause. Article 1690.º Legitimacy to contract debts 1-Any of the spouses has legitimacy to contract debts without the consent of the other. 2 - […].»
Article 3 1 Adoption-amendments introduced by this law does not entail the legal admissibility of the PRESIDENCY of the COUNCIL of MINISTERS 7 adoption in any of its modalities for married people with same-sex spouse. 2-No legislative provision in relation to adoption can be interpreted in the opposite direction to the previous paragraph. Article 4 Standard set point (e) is repealed) article 1628.º of the Civil Code. Article 5 final provision All the legal provisions relating to marriage and its effects should be interpreted in the light of this law, regardless of the gender of the spouses, without prejudice to the provisions of article 3.
Seen and approved by the Council of Ministers of 17 December 2009 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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