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Communiqué
1. The President of the Republic decided today to send back to Parliament Decree No. 232/X which approves the Juridical Regime of Divorce, requesting that it be subject to reappraisal, based upon the lack of protection of the spouse who is placed in a weaker position – generally the wife – as well as that of the under age progeny, to which, in practice, the legislation can lead to, as is outlined in the message sent to Members of Parliament.
2. The President of the Republic considers that it is important not to totally forgo the reality of married life in contemporary Portugal, where many instances subsist in which one of the spouses is placed in a weaker situation and that the law, by action or omission, should not worsen that vulnerability, and, as a consequence, further deteriorate the lack of protection which will indirectly affect the under age progeny.
3. The President of the Republic emphasizes that it is minimally peculiar that a spouse that systematically infringes the conjugal duties specified in the law – for instance, domestic violence situations – may unilaterally and without more ado obtain a divorce and, above all, derive from it advantages at various levels, including economic rights. In the terms of the new legislation it is possible for a husband, after years of repeated infringements of the duties of respect, fidelity or assistance, demand payments in money from his former wife.
Some of the current capabilities enjoyed by the weaker party or that which is the target of infringement of conjugal duties have been extinguished, specifically the allegation of culpability of the other spouse or the refusal to divorce by mutual consent. As a consequence, an economically weaker spouse may become subject to repeated infringement of conjugal duties under the threat that, should this not be acceptable, the other spouse may unilaterally sue for divorce.
4. At another level, the President of the Republic calls attention to the paradox that emerges from the new model of divorce, to which corresponds a concept of marriage as an area of affection, when, alongside, through the setting up of a system of compensatory credits, an “accounting” view of wedlock is expected to exist, in which each of the spouses is called upon to keep a “current account” of the contributions each makes towards the expenses of conjugal and family life. There is thus a strong probability that such an “accounting” view may be considered as intrinsic by the spouses, thus creating a lack of trust which does not conform to the communion which should be the ideal of wedded life.
5. On the other hand, the President of the Republic challenges the circumstance that, in the case of divorce, it is now intended to enforce, when decisions are taken as to settlement, a different regime than that which was chosen by both parties when marriage took place (specifically, that of communal property of all assets). For instance, the spouse who infringes the conjugal duties which gave rise to divorce may take advantage of that provision, suing unilaterally for divorce and obtaining, upon settlement, that the other party receives less than it would have a right to under the terms of the regime both had chosen when marriage took place.
6. The message that the President of the Republic addressed to Parliament, in the terms of No. 1 of article 136 of the Constitution is published in this same official site of the Presidency of the Republic, in www.presidencia.pt.
© 2006-2016 Presidency of the Portuguese Republic
You have gained access to the records of the Official Site of the Presidency of the Republic from 9 March 2006 to 9 March 2016.
The contents available here were entered in the site during the 10 year period covering the two mandates of President of the Republic Aníbal Cavaco Silva.
