Key Benefits:
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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