The Matrimonial property regime in Portugal is enshrined in Articles 1717 et seq. of the Portuguese Civil Code.
Before the wedding, the bride and groom can choose the property regime they wish to adopt for their married life.
The property regime, legally established, consists of a set of rules that, fundamentally, determine to whom the married couple’s property belongs.
Portuguese law establishes 3 property regimes:
Communion of Acquired Property Regime
According to this regime, to each spouse belongs only the property he or she had before marriage and the property that, after the marriage and in the constancy of it, he or she will receive by succession or by donation, or will acquire by virtue of his or her own previous right.
To both spouses belong the other assets, that is, the assets acquired after the marriage other than by succession, donation, or proper right before the marriage.
These assets include the product of the spouses’ work and the income from assets that belong only to each of them.
All these assets are called common property, which consists of an asset (property) and a possible liability (debts), in which each of the spouses participates in half.
General Communion of Property Regime
In this regime it is a rule that all assets, whatever their origin and moment of acquisition, belong to both spouses.
However, the law establishes that a certain type of property belongs only to each of the spouses, namely their clothes, their correspondence, and the property donated or left when the donor or testator has determined that they do not want the property to belong to both. Likewise, strictly personal rights belong only to the spouse who owns them. This is the case with usufruct and right of use or housing.
All these assets are called common property, which consists of an asset (assets) and a possible liability (debts), in which each spouse participates in half.
Separation of Property Regime
According to this regime, each of the spouses owns the property they have acquired, in any way, before and after the marriage.
However, it may happen that certain assets have been acquired by both spouses. In this case the two are owners of the assets, not as a couple but as any other two unmarried people, which is called a co-ownership.
Choice of the property regime
The choice of the property regime is made through a prenuptial agreement, in which the engaged couple freely chooses one of the three property regimes.
Note: It is possible for the bride and groom to stipulate a different property system for their marriage than the one legally provided for, as long as they respect the limits of the law.
The prenuptial agreement is entered into by public deed, at a Notary’s office, or at the Civil Registry.
In two specific cases the law imposes the regime of separation of property:
- Whenever bride or groom, on the date of marriage, is 60 years of age or older;
- Whenever before the marriage the civil registry office did not conduct the process to find out whether legally the marriage can take place – publication process – (which the law allows in certain circumstances).
In a specific case the law imposes the impossibility of the general communion of property regime:
- Whenever the bride or groom already have non-common children, even if they are of age or emancipated.
When there is no Prenuptial Agreement:
When the engaged couple have not chosen the property regime for their marriage, the law establishes as a default property regime the Communion of Acquired Property Regime.
This default property regime is applied to marriages entered into on or after June 1, 1967; marriages entered into previously are subject to the default property regime of the General Communion of property.
What happens to the property regime after the death of one of the spouses?
In the event of the death of one of the spouses, the surviving spouse was, until August 31, 2018, the obligatory heir. This was the case in the general communion of property regime, the communion of acquired property and the separation of property regime, on the day of the death of one of the spouses the other was the heir of the deceased.
With the sub-regime of separation of property enforced by Law 48/2018 of 14/8, it is now possible to have a reciprocal renunciation of the condition of legitimate heir of the other spouse.
What does a reciprocal renunciation of the condition of heir entail?
Firstly, it should be noted that, under this amendment, donations are allowed to be made in favour of the surviving spouse who has renounced the inheritance, and are not subject to any inofficiousness, up to the part of the inheritance corresponding to the spouse’s legitimate if the renunciation did not exist.
Secondly, the renunciation provided for herein may be conditioned to the survival, or not, of any successor or other people, and does not have to be reciprocal between the spouses.
Moreover, if the family home is owned by the deceased, the surviving spouse may remain there for a period of five years (which may be extended by the Court) as holder of a right in rem to housing and a right to use the household contents.
Most importantly, this possibility can only be denied in cases where the surviving spouse has his or her own home in the same municipality as the family home, or in this or the neighbouring municipalities if it is located in the Lisbon or Oporto municipalities.
If the spouse is over 65 years old, the right to live in the family home is for life.
At the end of the period in which he or she has benefited from the right to housing, the surviving spouse has the right to remain in the property as a tenant, under the general market conditions, and also has the right of preference in the event of the property being sold, during the time he or she lives in any capacity.