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Portuguese Citizenship via Marriage

By Wednesday April 15th, 2020 April 26th, 2020 Direito Internacional, Nacionalidade Portuguesa

You are now a Portuguese Citizen and wish for your spouse to obtain Portuguese Citizenship as well. Find out below, how to proceed now that the new law is in force and what you need to be aware of.

 

The spouse of a Portuguese Citizen, married for more than 3 years, is entitled to Portuguese Citizenship. This is the law. In theory, there is no other requirement.

However, this is not the case when it comes time to apply.

Before 1981, you just had to be married to a Portuguese Citizen, even if divorced or widowed, to be able to obtain Portuguese Citizenship. However, in 1981, the law went the opposite way and defined that in order to obtain Portuguese Citizenship, the Portuguese Citizen’s Spouse had to prove a connection to Portuguese Territory.  In 2006, the law went closer to the old law and stated that the spouse of a Portuguese Citizen, married for more than 3 years, is entitled to Portuguese Citizenship. Period.

However, it also stated that the Portuguese State, via the Ministério Público, would be able to contest this acquisition if they considered that there was no evidence of the connection to Portuguese Territory. What did the Registrar Central Office do? They demand the applicant to submit evidence of a connection to Portuguese Territory, even though there is no legal support to do so (as so much they demand…).

We always stated, and we still do, that we are NOT the ones, as applicants, that need to prove such a connection since the law’s interpretation is that the State is the one with the legal onus to produce such evidence. We actually won this argument in the Supreme Administrative Court.

However, for practicality, if we did not help them by presenting evidence that such a connection existed, our clients would have to wait years in Court, battling this issue…One of the many examples of how the slow Judicial system affects everyday life. Is a bit like we are playing poker with the Registrar Central Office as they know very well what our hand is in advance, even when we have a full house, so, they always fold.

So, what we do is to decide on whether to present or not to present evidence, depending on the specific situation on a case by case basis.

All this is still perfectly valid after the new law, but now we don´t have to deal with the ordeal we used to have to: arbitrariness.

You see, before, we could have identical or very similar situations, as we had, plenty, and even so, it was a 50% chance of being sent to Ministério Público to be discussed or being granted Portuguese Citizenship right away at the Registrar Central Office. Yes, it did happen, more than once!

If this new law brought something good, it was definitely the presumption of connection to Portuguese Territory. That is, the Law now informs the Registrar Office on when to consider that this connection exists, diminishing drastically the margin for interpretation and ambiguity.

It´s now much less stressful to apply for Portuguese Citizenship via Marriage.

So, what needs to be considered?


1 – First of all you, the Portuguese Citizen, will need to legally document your marriage when married abroad. Birth, marriage, and death are mandatory civil acts to register to all Portuguese Citizens. So if you did not marry in a Portuguese Consulate or in Portuguese territory, you must do this first!

Also be aware that if you are divorced, and did not legally document the previous marriage, in Portugal, you will have to do this first. Even if you were married before being a Portuguese Citizen. After, you will have to enforce the divorce decision in order for the divorce to be inscribed in your Portuguese birth certificate. The procedure will be different if you divorced within the EU or outside the EU. Only after you can register your second marriage and your spouse will be able to apply.

2 – Be aware that if you, Portuguese Citizen, changed your name via marriage, this will not be the name of your Portuguese Birth Certificate until you legally document your marriage. All civil acts registration works in order of time, so your name in the birth certificate will be your maiden name. It might be a good idea to hold the cartão de cidadão request until after you register your marriage and ask for the change of name.

Also be aware that this will not be a simple process if you changed your name more than adding your spouse last name, since our requirements to name changes are very different from many countries, US and UK included. You will have to specifically request for the name change.

3 – All the foreign documents will need to be legalized, procedure depending on their origin;

4 – All the documents must be translated by the certified translator, and legalized after (if translation occurs here in Portugal, no legalization required);

5 – The spouse of the Portuguese citizen married for more than 3 years will be considered to have a connection to Portuguese territory if:

  1. a) is natural and national of a Portuguese-speaking country, married or living in a de facto union for at least five years, with Portuguese national origin;
    b) is natural and national of a country of Portuguese official language and there are children, Portuguese of origin, of the marriage or of the de facto union that bases the declaration;
    c) has sufficient knowledge of the Portuguese language, provided that is married or has lived in a de facto union with Portuguese of origin for at least five years;
    d) Resides legally in Portuguese territory in the three years immediately prior to the request, is enrolled in the tax administration and in the National Health Service or in the regional health services, and proves attendance at a school in the national territory or demonstrate knowledge of the Portuguese language;
    e) Resides legally in Portuguese territory in the five years immediately prior to the request, is enrolled in the tax administration and in the National Health Service or in the regional health services.

Regarding what has been said, there are a few notes to be made:

  • Portuguese of origin is a Portuguese Citizen born in Portugal or abroad when being son or grandson of Portuguese Citizen of origin. This is a classification opposing Portuguese Citizens who acquire Portuguese Citizenship by declaration via either residing here for more than 6 years, or via marriage or via being a grandson of a Portuguese Citizen by the old law (citizenship via naturalization). The difference is the first will be Portuguese since birth, the latter since the moment of declaration. This is also an important distinction when it comes to naming changes.
  • Even though you can apply to Portuguese Citizenship when you are married or in a de facto union to a naturalized Portuguese Citizen, when it comes to the requirements of this presumption, there is a difference. The first three situations are only applicable to those married to Portuguese Citizens of origin. The two latter, to those married to either married to Portuguese of origin or naturalized. So, basically, if you are a Brazilian Citizen, married to a Portuguese of origin for more than 5 years, the presumption applies. If you are a Brazilian Citizen married for more than 3 years with a Portuguese of origin, do not reside here for more than 3 or 5 years, and do not have Portuguese children, you can still apply, but we won’t be able to use any legal presumption. That is, we won´t be able to demand the Registrar to automatically assume you are connected to Portuguese Territory. If you are married for 3 years and have children, the presumption applies even if you are not residing here. Another example, if you are a UK citizen not residing here, and married to a naturalized Portuguese Citizen (for more than 3 or more than 20 years), you could always apply, but we couldn´t use any of the presumptions of connection to Portuguese Territory, and so, we would have to decide on whether to present proof of such connection on a case by case basis.
  • The de facto union is a far more complicated situation than being married since Portuguese law still demands legal action in order for the union to be declared for nationality purposes. However, if you have any foreign sentence or public document legally valid in your Country of Origin attesting this Union, we will be able to enforce it here without having to initiate legal demand. This will depend on the type of document.
  • If not residing in Portugal for more then 5 years, is for the most advantage for the non-Portuguese speaker foreign spouse, to endure in a Portuguese language course and perform the Portuguese exam to the level A2. Please search here where you can subscribe and perform this exam. All is written in Portuguese, but you can try to get additional information at Portuguese Consulate of your residence.
  • Please check this complete article written by Sue Fletcher for Algarve Daily News, in English, about all you need to know regarding the Portuguese level A2 test!
  • The preparation for the exam is done at your choice, so please search nearby where you can learn the language. Online courses are also possible.

 

You will always need the following documents:

  • Birth Certificate of the applicant
  • Passport legalized
  • Criminal Clearance issued by the country where the applicant was born, from where he holds his citizenship and of all countries he has ever lived after turning 16 years old, with the respective translation if not issued in Portuguese. (The applicant is exempt from presenting the Portuguese Criminal Clearance, since it may be obtained compulsorily by the Portuguese government, yet we advise it previous presentation by the applicant in order to gain time). Please note that the police clearance is only valid for three months from the date of issue.
  • Marriage Certificate.
  • Birth Certificate of the Portuguese spouse, with the marriage annotated on it.

 

Additional documents will depend on the specific situation, depending on whether you fulfil some of the presumption requirements and which.

For a final note: you are still entitled to apply to Portuguese Citizenship if you are married to a Portuguese Citizen for more then 3 years, even if you do not fulfil any of the presumption requirements. I strongly advise you to contact a lawyer to analyze the viability of your situation.

 

Hope this article will make things a little bit clearer.

 

Any questions don´t hesitate to contact.

Warm regards to you all.