Same-sex partnerships in Portugal From de facto to de jure ?

Same-sex partnerships in Portugal
From de facto to de jure?
Rosa Martins*
1. Introduction
In 2001 Portuguese legislature conferred, for the first time, legal effects on the relationship of
two persons of the same sex who have lived together for more than two years in a de facto union
(Act 7/2001 of 11th May).1
The legislature’s intent in regulating same-sex partnerships was clear and can be seen,
firstly, in the title of the Act and, secondly, in Article 1. In contrast with the title of previous Act,2
Act 7/2001 is entitled ‘Act to adopt measures for the protection of de facto unions’ and not of the
‘de facto union’. The use of the plural indicates that the ambit of Act 7/2001 has been extended
beyond different-sex de facto unions to same-sex de facto unions. Article 1 confirms this purpose
of being also applicable to same-sex de facto unions stating ‘the present law governs the legal
status of two persons, regardless of gender, who live together in a de facto union for more than
two years’.3 Was this the first step on a journey from de facto to de jure? In my opinion, it was.
As far as cohabitation is concerned, one can detect two opposite, yet simultaneous trends.
With regards different-sex cohabitation, there is a growing preference for this model of living
together, which seems to support the idea that a ‘privatisation’ of the couple is underway.4
Indeed, statistics show an increasing percentage of different-sex couples choosing to live together
*
Faculty of Law, University of Coimbra (Portugal), email: rmartins@ci.uc.pt
1
This assertion needs to be clarified. Same-sex partnerships were not entirely ignored by the Portuguese legal system prior to Act 7/2001. As
Coelho and Oliveira have already remarked, such partnerships had no legal effects per se, but would be taken into account as far as a ‘joint
household economy’ was concerned. In this way, if two persons of the same sex lived in a de facto union for more than five years in premises
leased by only one of them, on the latter’s death the surviving partner enjoyed the right to a new lease that the law granted to whomever had
lived with the tenant for more than five years (Arts. 90 (1), (a) and (2) and 76 (1), (a), Urban Leasehold Regime – Regime do Arrendamento
Urbano). The surviving partner benefited from the right to a new lease, not by living in a de facto union with the deceased, but by living with
him in a ‘joint household economy’. See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol I, 2003, pp. 112-113; J. Pitão, Uniões
de Facto e Economia Comum, 2006, pp. 55-56.
Until 2001, Portuguese law did not directly attribute any positive legal effects to same-sex partnerships, nor did the courts recognise any effect
arising from such partnerships per se. Take, for example, the judgment of the Lisbon Court of Appeal of 28th June 1990 that denied the right
to the survivor’s benefit to the surviving member of a same-sex de facto union under the same conditions as a surviving spouse. The summary
of this judgment may be found at http://www.dgsi.pt
Act 7/2001 does not contain any provisions that could apply to situations of same-sex de facto unions prior to its entry into force. The Act
provides only for the future; in other words, it only applies to same-sex de facto unions already existing on that date. See Judgment of the
Lisbon Court of Appeal of 11th July 2002 at http://www.dgsi.pt and Judgment of the Constitutional Court 513/2003 of 28th October 2003 at
http://www.tribunalconstitucional.pt/tc/acordaos/ 20030513.html
2
Act 135/99, of 28th August 1999, Act to adopt measures for the protection of de facto union.
3
This was not the purpose of Act 135/99. According to Art. 1, the Act’s purpose was to regulate the ‘legal position of persons of opposite sex
who live in a de facto union for more than two years’. Act 135/99 granted legal protection only to different-sex de facto union.
4
See S. Aboim, ‘A formação do casal: formas de entrada e percursos conjugais’, in K. Wall (ed.), Famílias em Portugal, 2005, p. 86.
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Same-sex partnerships in Portugal – From de facto to de jure?
instead of entering the legal institution of marriage.5 A movement towards the ‘deinstitutionalis-
ation’6 of conjugal life is, therefore, noticeable. This trend also seems to point to an attitude of
indifference, or even of rejection of, the need to legitimise cohabitation vis-à-vis the outside
world.7 Couples are now refusing to submit to predetermined values established by the Church
or the State, no longer adhering to the ‘institution of marriage’.8
Even though a demand for greater freedom to establish the terms of ones relationship9 also
appear to exist in Portugal, the Portuguese legislature insists in regulating that relationship. The
State does not want this particular area of social life to become so private so as to exclude any
sort of intervention. The State’s intervention in different-sex non-marital cohabitation, however,
is weaker than that with respect to different-sex marital cohabitation. Accordingly, laws on this
subject confer the bare minimum level of protection on the partners. One can witness that the
State is searching for a new balance between the autonomy of different-sex couples, who wish
to define the rules of their private life and the State’s interference with that definition.10
As regards same-sex relationships, the opposite trend seems to be becoming dominant.11
A trend towards the public display of same-sex relationships can be observed. Indeed, due to the
fact that same-sex relationships have achieved social recognition, the demand for increasing State
intervention has risen to the top of the agenda. Same-sex couples are increasingly claiming
outside legitimisation of their relationship; they claim for the institutionalisation of same-sex
cohabitation by setting legal rules for its establishment, its legal effects and its termination. It
amounts to a demand that de facto become de jure.
In the field of different-sex relationships, the trend appears to be that of deregulation, while
in the field of same-sex relationships the opposite trend seems to be discernible.12 In the words
of Mary Ann Glendon: ‘Regulation has thus been withdrawn where it was once taken for granted,
and intensified where in the past it had been unknown’.13
Act 7/2001 was the first step in the path of granting same sex couples a legal status. What
further steps will the Portuguese legislature have to take in the near future?
The legal recognition of same-sex relationships by means of regulation can take on
different forms. In fact, this has not happened consistently throughout Western Europe.14 Despite
this divergence one can find three general models of State intervention: enacting a minimal legal
5
See S. Leite, ‘A União de Facto em Portugal’, 2003 Revista de Estudos Demográficos, no. 33, pp. 115 and 132; S. Aboim, ‘A formação do
casal: formas de entrada e percursos conjugais’, in K. Wall (ed.), Famílias em Portugal, 2005, pp. 85 et seq.; C. Saraceno & M. Naldini,
Sociologia da Família, 2003, pp. 79 and 159.
6
J.-L. Renchon, ‘Indisponibilité, ordre public et autonomie de la volonté dans le droit des personnes et de la famille’, in A. Wijffles (ed.),
Le Code Civil entre Ius Commune et Droit Privé Européen, 2005, pp. 285 et seq.
7
See I. Théry, Couple, Filiation et Parenté Aujourd’hui. Le Droit face aux mutations de la famille et de la vie privée, 1998, p. 32.
8
See S. Leite, ‘A União de Facto em Portugal’, 2003 Revista de Estudos Demográficos, no. 33, pp. 99-100; F. Coelho & G. Oliveira, Curso
de Direito da Família, Vol. I, 2003, pp. 147-148.
9
See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 150.
10 Bearing in mind the purpose of this study, this is not the appropriate place either to further consider this trend and to analyse its causes and
effects in Portugal, or reflect on the correct attitude of Portuguese legislature should adopt. For an approach to the issue of cohabitation
outside marriage from a historical, socio-demographic and legal-political perspective as well as for a critical analysis of legislative output
regarding de facto unions in Portugal, see N. Cid, A Comunhão de Vida à Margem do Casamento: entre o Facto e o Direito, 2005.
11 Also pointing out these opposite trends Baronness Hale observes: ‘Curiously, it may be that it is among the gay community that the
unavailable legal status and commitment [of marriage] is increasing in attraction where everywhere else it is in decline’, Baronness Hale,
‘Unmarried Couples in Family Law’, 2004 Family Law, pp. 420-421, apud N. Bamforth, ‘Same-Sex Partnerhips: Some Comparative
Constitutional Lessons’, 2007 European Human Rights 1, p. 52.
12 See C. Saraceno & M. Naldini, Sociologia da Família, 2003, p. 159.
13 M. Glendon, ‘Introduction: Family Law in Times of Turbulence’, in M. Glendon (ed.), International Emcyclopedia of Comparative Law:
Persons and Family, Vol. IV, 2006, p. 7.
14 See I. Schwenzer, ‘Convergence and Divergence in the Law on Same-Sex Partnerships’, in M. Antokolskaia (ed.), Convergence and
Divergence of Family Law in Europe, 2007, p. 146.
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regulation of the relationship of two persons of the same sex;15 attributing ‘quasi-matrimonial’
status16 to these relationships, or allowing same-sex marriages outright.17
This article aims, firstly, to give a brief description of Act 7/2001 as the first Portuguese
Act that offered legal protection to same-sex relationships. Secondly, to reflect on the current
legal situation in Portugal, and thirdly, to try to assess what the further steps the Portuguese
legislature should take along the path of granting same-sex couples a legal status.
2. Act 7/2001 of 11th May 2001: ‘Act adopting measures for the protection of
de facto unions’
2.1. Background to Act 7/2001
Act 7/2001 expressly repealed Act 135/99. One might suppose that the new legislation would
contain new provisions regarding the regulation of de facto unions, however this did not occur.
In fact, Act 7/2001 essentially reproduces the legislation it replaces. That is to say that the new
law did not amend the definition of de facto unions,18 their establishment , the conditions under
which they can take effect, their effect on persons and property, their termination and its
consequences.
Although we can say that de facto unions in Portugal, ‘were somewhat institutionalised by
Act 135/99 of 28th August’,19 the Portuguese legislature did not institute a systematic, unitary and
substantially innovative regulatory structure for de facto unions.20 Both Act 135/99 and Act
7/2001 appear to be little more than ‘a mere summary of protective measures’,21 which had
already been laid down in previous legislation. Indeed, Article 3, Act 135/99 referred in four of
its eight paragraphs to ‘measures to protect the de facto unions’ to be found dispersed throughout
existing legislation, largely in the fields of Social Security, Employment, Tax and Administrative
Law.22 Moreover, Act 135/99 refers itself, in Article 1(2), to standards laid down in other laws,23
which confer to some extent legal consequences on de facto unions.
15 For example, in France and Portugal. It should, however, be pointed out that although the two legal systems set a minimum legal status for
same-sex partnerships, the same status is regulated in more detail in France (Loi relative au Pacte Civil de Solidarité, Loi No. 99-944, of
15 November 1999 and Arts. 515-1 to 515-7 French Civil Code) than in Portugal (Act 7/2001 of 11th May 2001). To better understand the
distinction, see, on the PACS, J. Carbonnier, Droit Civil. Introduction. Les Personnes. La famille, l’enfant, le couple, Vol I, 2004, pp.1481-
1490 and G. Cornu, Droit Civil. La famille, 2006, pp. 105-114, and on Act 7/2001 of 11th May, F. Coelho & G. Oliveira, Curso de Direito
da Família, Vol. I, 2003, pp. 111-137; J. Pitão, União de Facto e Economia Comum, 2006, pp. 111-127.
16 As is the case in Denmark (Registered Partnership Act, Act No. 372 of 7th June 1989, in force as of 1st October 1989), Sweden (Lag om
registerat partnerskap, Act 1994: 1117 of 23rd June 1994, in force as of 1st January 1995), Norway (Lov om registreret partnerskap,
No. 40/1993, of 20th April 1993, in force as of 1st August 1993) of Finland (Registered Partnership Act, Act 950/2001, in force as of 1st March
2002), Germany (Lebenspartnerschaftgesetz of 16th February 2001 modified by the Law of 6th February 2005), the United Kingdom (Civil
Partnership Act 2004, in force as of 5th December 2005) and, most recently, Switzerland (Partnerschaftgesetz of 18th June 2004, in force as
of 1st January 2006).
17 As is the case in The Netherlands (Act Opening Marriage to Same-Sex Couples (Wet openstelling huwelijk) of December 2000 and Art. 1:30
Dutch Civil Code), Belgium (Loi du 13 fevrier 2003 and Art. 143-1 Belgian Civil Code) and Spain (Ley 13/2005, of 1 July and Art. 44
Spanish Civil Code).
18 Act 7/2001 gives us no idea as to what should be understood by de facto union; nor, indeed, did Act 135/99.
19 F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 109.
20 On the need for and suitability of such regulations, see N. S. Cid, ‘União de Facto e Direito: Indecisão ou Desorientação do Legislador?’,
1994 Economia e Sociologia, no. 57, pp. 66-72; H.E. Hörster, ‘Does Portugal Need to Legislate on the Facto Unions’, 1999 International
Journal of Law Policy and the Family, no. 3. p. 279; R. Xavier, ‘Novas sobre a união “more uxorio” em Portugal’, in J. Gomes (ed.), Estudos
dedicados ao Prof. Doutor Mário Júlio Almeida Costa, 2002, pp. 1398 et seq., N. Cid, A Comunhão de Vida à Margem do Casamento: entre
o Facto e o Direito, 2005, pp. 759-789.
21 F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 109.
22 See R. Xavier, ‘Novas sobre a união “more uxorio” em Portugal’, in J. Gomes (ed.), Estudos dedicados ao Prof. Doutor Mário Júlio Almeida
Costa, 2002, pp. 1398-1399.
23 Such as, for example, the Civil Code which, as regards maintenance, gives the surviving partner of a (different-sex) de facto union the right
to require provision from the deceased’s estate in cases where the union had lasted for more than two years and he or she could not obtain
the same from a spouse, ex-spouse, descendants, ascendants or siblings (Art. 2020, Civil Code).
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This being so, a few new departures from the previous legislation are discernible. However,
none of these new departures include the legal protection of same sex relationships (Article 1 Act
135/99). Same-sex de facto unions remained almost irrelevant until 2001.
2.1.1. Constitutional Court’s jurisprudence
Although there are a number of novelties in the act(s) referred to above, only a few of them can
be considered really innovative. Indeed, some of these solutions have been anticipated by the
Constitutional Court’s jurisprudence.
Portuguese higher courts did not recognise de facto unions within the ambit of family law24
and therefore did not analogously apply legal precepts relating to marriage. Thus, the Portuguese
higher courts refused to attribute de facto unions with similar effects to those conferred on
marriage by operation law.
Brief mention should, however, be made to several decisions of the Constitutional Court
on this matter, where the solutions adopted have been accepted, in some cases, and even
developed by the law.
Take, for example, the judgment of the Constitutional Court No. 359/91, of 9th July 1991,25
where the Constitutional Court was asked to rule on the question of whether or not the transfer
of the right to lease the family home was applicable upon the breakdown of a de facto union
when there were minor children from that union. This right could be granted, by agreement of
the spouses or ex-spouses, or, failing that, by court order, to the spouse or former spouse who was
not the tenant in case of divorce or separation of persons with division of property. The issue here
was to know whether the protection offered by the law could be analogously extended to the
termination of a de facto union. The Constitutional Court declared the interpretation unconstitu-
tional, which denied the analogous application to situations involving termination of a de facto
union with minor children. However, the Constitutional Court did not directly address the
controversial issue of equivalence of the de facto union to marriage for certain purposes. Instead,
it developed a line of reasoning based on the constitutional principle of non-discrimination
against children born outside marriage (Article 36(4) Constitution of the Portuguese Republic).26
A similar result was reached in the judgment of the Constitutional Court No. 1221/96 of
4th December 1996.27 Here the Constitutional Court also ruled that an interpretation that reserved
the application of Article 1793(1) Civil Code to cases of dissolution of the marriage, thus
excluding the situations of breakdown of a de facto union with minor children, was unconstitu-
tional. The provision referred to above provides that, at the request of one of the spouses, the
24 According to Article 1576, Civil Code only marriage, kinship, affinity and adoption are considered to be sources of family relationships.
Since de facto unions were not on the exhaustive list of family relationships higher courts did not recognise de facto unions within the ambit
of family law.
Even today case law and the predominating private law doctrine do not understand the de facto unions as a family relationship. See J. Castro
Mendes, Direito da Família, 1990/1991, pp. 13 and 15; J.J. Almeida Lopes, ‘A União de Facto no Direito Português’, 1993 Revista Española
de Derecho Canónico, no. 134, p. 246; P. de Lima & A. Varela, Código Civil Anotado, Vol. IV, 1992, pp. 14-15; D. Leite de Campos, Lições
de Direito da Família, 1997, p. 21; A. Varela, Direito da Família, Vol. I, 1999, p. 31; N .Cid, A Comunhão de Vida à Margem do Casamento:
entre o Facto e o Direito, 2005, p. 505 (note 12), with extensive references to legal literature and case law.
However, as Coelho and Oliveira warn, although de facto unions are not seen as a family relationship for most legal purposes, ‘we need to
know if we are or not dealing with one of those exceptional areas where such a designation is merited’, see F. Coelho & G. Oliveira, Curso
de Direito da Família, Vol. I, 2003, p. 108.
Considering a de facto union as a family relationship see T. Carvalho, ‘A União de Facto: A sua Eficácia Jurídica’, in Comemorações dos
35 Anos do Código Civil e dos 25 Anos da Reforma de 1977: Direito da Família e das Sucessões, Vol. I, 2004, p. 226.
25 At http://www.tribunalconstitucional.pt/tc/acordaos/19910359.html
26 On the principle of non-discrimination against children born out of wedlock as one of the constitutional principles of Portuguese Family Law,
see F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 172 et seq.; J. Miranda & R. Medeiros, Constituição Portuguesa
Anotada, Tomo I, 2005, pp. 419 et seq., J. Canotilho & V. Moreira, Constituição da República Portuguesa Anotada, Vol. I, 2007, p. 565.
27 At http://www.tribunalconstitucional.pt/tc/acordaos/19961221.html
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court awards the lease of the family home to one of them, irrespective of whether it is joint
property or owned by one of them. The court should particularly consider the needs of both
spouses and the children’s interests.
Once again, the Constitutional Court avoided the problem of the legal consequences of de
facto unions, basing its decision in the aforementioned principle of non-discrimination against
children born out of wedlock.
Another ‘irradiation’28 of the same principle can be found in the judgement of the Constitu-
tional Court No. 286/99, of 11th May 1999.29 The question was whether or not to apply, by
analogy, the rules of Articles 42(1) and 46 of Decree-Law No. 18/88, of 21st January. These rules
established a ‘conjugal preference’ as a criterion to be used in the process for placement of
teachers in public education in those situations where a teacher lived in a de facto union with
another public official and with whom he or she had children. Faced with this question, the
Constitutional Court again relied on the principle of non-discrimination against children born
outside marriage. It held that the provisions under consideration were unconstitutional, since they
excluded teachers who, though not married, lived in conditions similar to those of spouses and
had children living with them. The Court held that such an exclusion prejudiced children who
would thus be deprived of the chance of living together with their father and this constituted
unjustified discrimination against children born outside marriage.
These solutions were incorporated into and even expanded upon by the law as will be seen
below.
From the abovementioned cases, it can be concluded that both Act 135/99 and Act 7/2001
did not represent a substantial extension of the protection of de facto unions, but were above all
of symbolic value. The public debate in Portugal was focused neither on the legal problems posed
by the reality of de facto unions nor on developing a consistent family policy as would have been
desirable.30
2.2. Brief analysis of Act 7/2001
This analysis purports neither to list nor analyse all the respects in which de facto unions can
have legal consequences in the context of the Portuguese legal system.31 Reference will instead
only be made to the general legal regime covering de facto unions as established by Act 7/2001.
2.2.1. Scope of the law
Act 7/2001 seeks to regulate the situation of two persons, regardless of gender, who have lived
together in a de facto union for more than two years (Article 1(1)). However, it does not explain
what a de facto union is.32
The absence of a legal definition can be justified by the difficulty, also experienced by
scholars,33 in accurately determining the legal contours of this ‘multi-faceted phenomenon’.34
28 See J. Canotilho & V. Moreira, Constituição da República Portuguesa Anotada, Vol. I, 2007, p 565.
29 At http://www.tribunalconstitucional.pt/tc/acordaos/19990286.html
30 See R. Xavier, ‘Novas sobre a união “more uxorio” em Portugal’, in J. Gomes (ed.), Estudos dedicados ao Prof. Doutor Mário Júlio Almeida
Costa, 2002, pp. 1401-1402. On the various draft laws that preceded the two laws and the parliamentary debate they gave rise to, see N. Cid,
A Comunhão de Vida à Margem do Casamento: entre o Facto e o Direito, 2005, pp. 636-667; S. O. Pais, ‘De Facto Relationships and Same-
Sex relationships in Portugal’; A. Bainham (ed.), International Survey of Family Law, 2002, pp. 342-343.
31 See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 111 et seq.; A. Pitão, União de Facto e Economia Comum, 2006,
pp. 71-328; T. Carvalho, ‘A União de Facto: A sua Eficácia Jurídica’, in Comemorações dos 35 Anos do Código Civil e dos 25 Anos da
Reforma de 1977: Direito da Família e das Sucessões, Vol. I, 2004, pp. 239 et seq.
32 Neither did Act 135/99.
33 See N. Cid, A Comunhão de Vida à Margem do Casamento: entre o Facto e o Direito, 2005, p. 39.
34 See G. Cornu, Droit Civil. La famille, 2006, p. 85.
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Despite such difficulties, one can say that the concept of de facto union embraces exclusive and
enduring relationships between two persons, regardless of gender, who have ‘made a life together
under the same roof’.35
One must stress that a de facto union can only be invoked either by the partners (or by one
against the other) or by third parties against them, if it has lasted for more than two years36
(Article 3, Act 7/2001). Therefore, the determination of the beginning of the relationship is very
important. However, the identification of that moment and the proof that the relationship exists
are not easy tasks, considering that the law does not provide any ‘formalities’ concerning the
beginning of the relationship.37 A de facto union comes into being ‘when the partners in the
relationship come together’.38
Although it is possible to prove the beginning and the existence of the relationship through
documentary evidence, this means of evidence also presents difficulties. Indeed, neither a
certificate from the council of the parish where the partners in a de facto union are resident,
proving the existence of such a relationship between them, nor a statement made by them before
the civil registrar at the time of registration of the birth of their child, affirming that they are
living together ‘as husband and wife’ and that they wish to jointly exercise parental responsibili-
ties (Article 1911(3), Civil Code), nor a contract made before the notary laying down their
propertial relationship constitute full proof of the existence of the relationship or of when it came
into being.39
It must be said that the possibility of seeking a declaration by the court to prove the
existence of cohabitation between the members of a de facto union has also proved ineffective.40
Thus, the protection offered by the law to de facto unions can end up being undermined since it
ultimately depends upon witness evidence.
2.2.2. Circumstances that prevent de facto unions having legal effects
It is also necessary to add that not every instance of cohabitation between two persons that lasts
for more than two years enjoys the protection of Act 7/2001. Cohabitation only produces the
effects prescribed by this Act if none of the circumstances described in Article 2 pertain.
35 On this point, see F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 84, 118; J. Pitão, União de Facto e Economia
Comum, 2006, p. 76.
On the difficulties in choosing the appropriate terminology and of conceptual definition, see N. Cid, A Comunhão de Vida à Margem do
Casamento: entre o Facto e o Direito, 2005, pp. 36 et seq.
36 A de facto union produces not only consequences favourable to the partners but also adverse effects. Although Act 7/2001 only provides
measures for the protection of de facto unions and, accordingly, specifies only favourable consequences, the reality is that a de facto union
produces more effects than those provided for in the statute and some of these are unfavourable to the two partners.
An example of the unfavourable effects is the joint and several liability of partners in a de facto union regarding debts incurred by one or
the other as part of the normal outgoings of their life together. Scholars have maintained the view, in relation to de facto different-sex unions,
that as the partners ‘live together under the same roof’, and thus create the appearance of marriage on which third parties rely, it appears
reasonable to argue for the applicability of the regime concerning the debts of spouses provided for in Arts. 1691(1b) and 1695(1) Civil Code,
by which the spouses are jointly responsible for debts incurred by either that represent the outgoings of normal joint life. On this point, see
F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 106. For an argument that this regime should apply equally to
homosexual de facto unions because of the expectations of third parties, see N. Cid, A Comunhão de Vida à Margem do Casamento: entre
o Facto e o Direito, 2005, p. 571.
37 De facto unions are not subject to civil or even administrative registration.
38 See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 110. On this point see also T. Carvalho, ‘A União de Facto: A sua
Eficácia Jurídica’, in Comemorações dos 35 Anos do Código Civil e dos 25 Anos da Reforma de 1977: Direito da Família e das Sucessões,
Vol. I, 2004, pp. 237-239, and J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 79-80.
39 See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 110.
40 See the Judgment of the Lisbon Court of Appeal of 26th November 2006 which states in its summary: ‘These legal proceedings are not
intended to enable the parties to obtain evidence, but are intended to assert rights that are uncertain, threatened or violated (Arts. 2(2) CPCivil
and 20(1) CRP)’ at www.dgsi.pt
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Situations that prevent de facto unions having legal effects include the following: if either
of the parties is under the age of 16 (Article 2 (a), Act 7/2001);41 visible dementia, even including
lucid intervals, and incapacity or civil disability by reason of mental disorder (Article 2(b), Act
7/2001);42 a subsisting previous marriage, except where the parties have been judicial separated
and division of property has already been decreed (Article 2©, Act 7/2001);43 kinship in the direct
line or in the second degree of the collateral line or affinity in the direct line’ (Article 2(d), Act
7/2001); a previous conviction of one partner for murder or attempted murder of the other
partner’s spouse (Article 2 (e), Act 7/2001).
It is interesting to note that this list copies the list of impediments to marry (Articles 1601
and 1602 Civil Code).
Taking into account the fundamental public interests that are the basis of impediments to
marry, it is reasonable to assume that, by so doing, the legislature wished to avoid conferring
favourable legal effects similar to those applying to marriage44 on de facto unions of persons
barred from marrying. Nevertheless, the legislature was not consistent with these aims.45 Indeed,
in dealing with de facto same-sex unions, this Act confers effects similar to those of marriage on
the relationship of two people who cannot marry under Portuguese matrimonial law. A marriage
celebrated between two people of the same-sex is non-existent pursuant to Article 1628(e) Civil
Code.
2.2.3. Legal effects of de facto unions
In comparison with Act 135/99, Act 7/2001 did nothing more than extend the legal protection of
de facto unions to include same-sex de facto unions. The legal regime of de facto unions has
remained the same. All the rights that Act 7/2001 attribute to the partners of a different-sex de
facto union are now equally attributed to the partners of a same-sex de facto union.46
Article 3 Act 7/2001 lists a series of measures for the protection of de facto unions.
However, this list is not exhaustive. Under the Portuguese legal system, the legal consequences
of de facto unions are not limited to the protective measures provided therein.47 Indeed, this is
acknowledged in Act 7/2001 itself where, in Article 1(2) it is provided that ‘no rule of this statute
shall affect the application of other laws or regulations in force seeking the legal protection of
de facto unions (...)’. By this provision, the legislature seems to have wished to prevent a possible
restrictive interpretation of Act 7/2001 that would exclude the application of other legislative
provisions not specifically mentioned in the statute.48
It should be emphasised that this provision does not imply any analogous application of the
rules that apply to legal marriage; a de facto union has only the effects recognised by the law.49
41 For a critique of conferring legal consequences on de facto unions where the partners are minors, see N. Cid, A Comunhão de Vida à Margem
do Casamento: entre o Facto e o Direito, 2005, pp. 644-645; J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 84-86.
42 For further observations on this impediment, see N. Cid, A Comunhão de Vida à Margem do Casamento: entre o Facto e o Direito, 2005,
p. 645; J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 86-94.
43 For a critique of conferring legal consequences on adulterous de facto unions, see R. Xavier, ‘Novas sobre a união “more uxorio” em
Portugal’, in J. Gomes (ed.), Estudos dedicados ao Prof. Doutor Mário Júlio Almeida Costa, 2002, p. 1399; N. Cid, A Comunhão de Vida
à Margem do Casamento: entre o Facto e o Direito, 2005, p. 645.
44 For the argument that Art. 2 Act 7/2001 should be interpreted narrowly so that the occurrence of some of these impediments does not hinder
the creation of adverse effects, see F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 117.
45 See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 116-118.
46 Except the right to full and jointly adopt a child.
47 See supra, 2.1.
48 See J. Pitão, União de Facto e Economia Comum, 2006, pp. 82-83. For an interpretation of Art. 1(2) Act 7/2001 which considers the
requirements set by the same law as minimum requirements for conferring favourable effects on de facto unions, see N. Cid, A Comunhão
de Vida à Margem do Casamento: entre o Facto e o Direito, 2005, p. 644.
49 See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, p. 112.
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2.2.3.1. Effects on persons
Act 7/2001 expressly recognises only one effect on persons who live in a de facto union: the right
to adopt a child under the same conditions that law provides for married couples (Article 7 Act
7/2001 and Article 1979(1) Civil Code).50 Act 7/2001, despite recognising direct legal conse-
quences of same-sex de facto unions, retained the provisions of Act 135/99 in continuing to
reserve the right to joint strong adoption to different-sex de facto unions. This being so only the
partners of a different-sex de facto union enjoy that right. Moreover, two partners of a different-
sex de facto union who want to qualify for joint strong adoption of the child must be over 25
years old and their relationship must have subsisted for over four years (Article 1979(1) Civil
Code).
Even if two partners of a same-sex de facto union cannot jointly adopt a child, each one of
them can qualify for strong adoption in the same conditions as unmarried people. That is to say,
he or she must be over 30 years old (Article 1979 (2) Civil Code).
Other than the right to adopt, Act 7/2001 did not add anything to the effects on persons of
de facto unions. There was no attempt to regulate personal relationships between the partners,
such as establishing a catalogue of rights and duties similar to that applying to married couples
(Articles 1672 et seq Civil Code),51 nor did it allow the partners in a de facto union the possibility
of adding a partner’s surname to one’s own.
Act 7/2001 is also silent on the issue of nationality. However, the amendment of the
Nationality Act (Act 37/81 of 3rd October by Act 2/2006 of 17th April) should be noted.52 The Act
provides that ‘a foreigner who at the date of the declaration has been living in a de facto union
for more than three years with a Portuguese national may acquire Portuguese nationality,
following an action in the civil court for the recognition of this situation’ (Article 3(3)). Although
this is one of those effects on persons provided for by outside legislation its novelty and signifi-
cance justify it being referred to here.
Reference should also be made to the right to benefit from the legal regime on holidays,
absences, leave and preferential placement enjoyed by officials of the Public Administration
under the same terms as spouses (Article 3(b), Act 7/2001)53 and the right to benefit from the
legal regime on leave, public holidays and absences, as applied to individual employment
contracts, on terms equivalent to those applying to married couples. Such rights cannot properly
be characterised as effects on persons; they are rather measures of social protection that were
intended by Act 7/2001 to extend to partners in de facto unions. They appear to evidence the
law’s recognition and protection of that special closeness which exists within a de facto union.
2.2.3.2. Effects on property
Since the Portuguese Civil Code does not recognize de facto unions as family relationships
(Article 1576 Civil Code) cohabiting partners do not belong to each other’s family: they are
treated as strangers. The de facto union has no legal impact on the ownership of their property,
that is to say that each partner remains the owner of the property that he/she has acquired prior
to the de facto union, as well as the property that he/she has acquired during the de facto union.
50 On other effects on persons of de facto unions, see F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 118-119; N. Cid,
A Comunhão de Vida à Margem do Casamento: entre o Facto e o Direito, 2005, pp. 674-696.
51 The behaviour by a partner in the union that amounts to a breach of conjugal duties (respect, fidelity, cohabitation, cooperation and assistance)
will have no legal consequences.
52 Published in Diário da República, I –Série-A, no. 75, 17th April 2006.
53 As far as preferential placement of public administration officials is concerned, this measure was anticipated, by the Constitutional Court’s
jurisprudence for different-sex de facto unions with minor children, see above at 2.1. Act 7/2001 generalised this to cover different-sex de
facto unions with or without children and same-sex de facto unions.
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In addition, neither one of the partners acquires any right of ownership of the other’s property,
nor any right or duty to administer it. This being so, the property of each one is subject to the
general regime of law of obligations and property law:54 each partner is allowed, for instance, to
sell or rent his/her movable or immovable property without the other’s consent being required.55
Moreover, partners are permitted to make between them sale, labour or loan contracts, among
others.56
Act 7/2001 did not regulate these aspects, namely providing a property regime similar to
the matrimonial property regime. Indeed, the statute neither provides a choice of property
regimes, nor establishes rules covering the administration of assets and debts of the partners
similar to those for married couples (Articles 1678-1697 Civil Code). Effects on property of de
facto unions regulated by Act 7/2001 are thus also limited.
Even though the partners are treated as strangers, the fact is that living in a de facto union
presupposes the sharing of resources in daily life and therefore some kind of mingling of
ownership of movable assets of the two partners may occur.
Act 7/2001 does not permit the partners of de facto unions to freely set out the terms of
their relationship, however it is also not prohibited. This being so, and taking into account the
possible mingling of ownership of the partners’ property, some authors have argued that so-called
cohabitation contracts should be regarded as valid, although restricted to the field of property,
and thus within the limits of the principle of private autonomy.57
The sole effect on property that Act 7/2001 effectively establishes is the application to the
partners of the taxation regime of personal income established for cohabiting married couples
(Article 3(e), Act 7/2001).58
2.3. Termination of the relationship
According to the statute a de facto union can be terminated: on the death of one of the partners
(Article 8(1a), Act 7/2001); by the decision of one of them (Article 8(1b), Act 7/2001),59 and by
the marriage of one of the partners to a third person (Article 8(1c), Act 7/2001).
Most of the protective measures of de facto unions contained in Act 7/2001 are directed
towards moments of crisis. However, the regulation of these moments is not detailed; provision
is only made for some of the consequences of the termination.60
One of the main problems in case of termination of a de facto union is the future of the joint
home. In fact, the first of the protective measures listed in Article 3 specifically focuses on the
attribution of the joint home (Article 3(a), Act 7/2001).
The statute provides different solutions to this problem and they depend on whether the de
facto union is being terminated by breakdown or the death of one partner, as well as whether the
house is owned (by one or both of them), leased or rented.
54 Note the exception in Art. 953, Civil Code.
55 In contrast, one spouse may have to ask for the other spouse’s consent to sell his/her own property depending on the property regime, which
applies to their marriage (Art. 1682 –A (1a), and (2), Civil Code).
56 There is no legal rule prohibiting them from making such contracts between them as there is for spouses (Art. 1714 (2), Civil Code).
57 See F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 119-120; J. Pitão, Uniões de Facto e Economia Comum, 2006,
pp. 174-175.
58 On other effects on property of de facto unions, see Pereira Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 119-120;
J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 315-321.
59 Or by agreement of both partners.
60 For instance, there are no rules covering the settlement and division of property acquired during a de facto union. On the difficulties that arise
in this regard, with pointers towards a possible resolution, see F. Coelho & G. Oliveira, Curso de Direito da Família, Vol. I, 2003, pp. 120;
J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 173-183.
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For those situations involving breakdown of the de facto union where the joint home is
leased or rented, Act 7/2001 provides the former partners the possibility to agree to the assign-
ment of the lease from one partner to the other or from both to one of them (Article 4(3), Act
7/2001 which refers to Article 1105 Civil Code).61
If the partners are not able to agree, the court must decide the issue taking into account ‘the
needs of each [of the former partners], the interests of children and other relevant factors’ and
the landlord must be officially notified of that decision (Article 1105(2) and (3) Civil Code).
If the joint home is owned jointly by the partners or by just one of them, the act refers to
Article 1793, Civil Code that governs the outcome for the joint home in cases of divorce where
it belongs jointly to the spouses or to just one of them.
This provision allows either spouse to petition the court for the grant of a lease in the joint
home. The court’s decision must take into account the needs of each of the spouses and the
interests of the children of the family (Article 1793(1) Civil Code).62
As referred to above, these provisions were anticipated by the Constitutional Court’s
jurisprudence63 in cases of separation of the partners in a de facto union with minor children.
Nevertheless, the protection that the statute now offers is broader in that it extends both to the
possibility of agreement on which of the former partners will become the tenant, and to the ability
of the court to grant one of them a lease of the joint home in cases where there are no minor
children or no children at all.64
In case of the death of the owner of the joint home, the surviving partner has a right in rem
to remain there65 for a period of five years, as well as a preferential right in the sale of the
property for an equal period (Article 4(1) Act 7/2001), provided that the deceased partner is not
survived by a descendant aged less than one year old, nor by other descendants who lived with
him or her for over a year and intend to continue living there, and in the absence of any testamen-
tary disposition to the contrary (Article 4(2) Act 7/2001).
If the joint home was rented or leased and the deceased partner was the tenant, the tenancy
is transferred to the surviving partner (Article 5 Act 7/2001 and Article 1006(1a) Civil Code).
In case of death of one partner, legal protection is not confined to the establishment of rules
concerning the joint home. The death of one of the partners has other consequences that are
reflected in the granting of a certain social protection to the surviving partner, namely: the right
to the death grant and survivor’s allowance (Articles 3 and 6, Act 7/2001),66 the right to benefits
for death resulting from an work related accident or occupational illness (Article 3(f), Act
7/2001) and the right to pensions for survivors of military personnel and for exceptionally
meritorious services rendered to the country (Article 3(g), Act 7/2001).67
Departing from the principle that partners of a de facto union are treated as strangers, Act
7/2001 does not attribute one partner any kind of inheritance rights in case of death of the other.
61 Introduced by the Act 6/2006, of 27th February 2006, published in Diário da República I-Série-A, no. 41, 27th February 2006.
62 Once the court has granted to one of the spouses such application for a lease, the lease is then subject to the residential rent laws. Despite
this, the court can set the terms of the contract, after hearing the spouses, as well as terminate the lease on the application of the landlord,
when supervening circumstances so justify (Art. 1793(2), Civil Code).
63 See supra, 2.1.1.
64 Note that where a de facto union is terminated at the instigation of the partners, the termination must be declared judicially when any claim
is made regarding rights that derive from the termination. A judicial declaration of termination of a de facto union should be made in an action
where the alleged rights are exercised or in an action according to the procedural rules for status actions (Art. 8(2) Law 7/2001). See J. Pitão,
Uniões de Facto e Economia Comum, 2006, pp. 327-328.
65 This does not give the partner the right to require that the contents be left for him or her use.
66 On the interpretation of Art. 6, see J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 290-292; N. Cid, A Comunhão de Vida à Margem
do Casamento: entre o Facto e o Direito, 2005, pp. 672-673.
67 For a more detailed description of these rights and the legal regime governing them, see F. Coelho & G. Oliveira, Curso de Direito da
Família, Vol. I, 2003, pp. 127; J. Pitão, Uniões de Facto e Economia Comum, 2006, pp. 293-302.
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