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Mister Speaker

Excellency,

Having received, to be enacted as law, Parliamentary Decree No. 232/X, which approves the Juridical Regime of Divorce, I have decided in the terms of No. 1 of article No.136 of the Constitution of the Portuguese Republic, not to enact the referred legislation and request that the same be reappraised, based upon the following premises:

1. Decree No. 232/X introduces a very deep change into the juridical regime of divorce currently in force in Portugal and contains a number of provisions that, in practical terms, may engender such serious consequences that its reappraisal by Parliament is justifiable.

2. As such, I believe it highly advisable that, on all counts, some of the effects that result from the new juridical regime of divorce should be taken into consideration, specifically its implications towards an undesirable lack of protection of the spouse or former spouse who is in a weaker situation – generally the female – as well as, indirectly, the under age progeny.

3. Since the law is based upon the premise that there is a current trend towards greater equality between spouses at all levels, it is important, however, not to totally forgo the reality of matrimonial life in contemporary Portugal, where multiple situations subsist in which one of the spouses – the female, as a rule – is in a weaker situation, and that the law should not, by act or omission, worsen that vulnerability, and as a consequence, further deteriorate the lack of protection which will indirectly affect the under age progeny.

4. With full freedom to act upon the regime of marriage and divorce and to adjust the respective effects, it is my belief that, not to worsen the lack of protection of the weaker party, the legislator should consider if it would be preferable to maintain, even if only as a residual alternative, the regime of culpable divorce, which is now absolutely and definitely put to an end.

5. This consideration as to maintaining divorce due to subjective causes, based upon the culpability of one of the spouses, seems to be more than ever necessary when the legislator, as is natural and desirable, maintains the validity of the conjugal duties provided in article 1672 of the Civil Code; remarkably however, no penalty due to the intentional non compliance of conjugal duties is provided within the framework of the divorce procedure.

6. In my view it is minimally peculiar that a spouse who systematically infringes the conjugal duties specified in law can unilaterally and without further ado obtain a divorce and, above all, obtain all types of advantages from it, including economic rights. As such, for instance, in a situation of domestic violence, when the husband assaults the wife over a number of years – a reality which is not uncommon in Portugal – it is possible for the former to obtain a divorce independently from the will of the victim of aggression. Further: due to the credit attributed in the text of No. 2 of article 1676, the husband, notwithstanding the repeated practise of acts of conjugal violence, can demand financial payments from the other spouse. If, through common agreement between the married couple, only the husband contributed financially towards the family expenses, it is possible that, after years of repeated lack of respect, fidelity or assistance, he will still have credit rights upon his former wife which the latter, due to her living options, may have great difficulties in supplying. The new regime of divorce is not just completely alien to the matrimonial and family model chosen, but the contributions in kind that the female provided for the common economy are also much more difficult to account for and to prove. In this sense, the issue will always be which criteria will be used by our courts to place a monetary value on the work provided by a woman in the home. These effects, to which the new regime may lead to on a practical basis, will surely be subject to due consideration by Members of Parliament.

7. At another level, the weaker party, or that which has been the victim of infringement of conjugal duties, will lose some of the capabilities it currently has to safeguard its «power of negotiation», specifically the allegation of culpability of the other spouse or the refusal of divorce by mutual consent. From now on, the female victim of assault, for instance, will solely have the right, after the divorce, to institute legal proceedings against her former husband with all the inherent financial and psychological costs. As is obvious, the fault of the former spouse will have to be proven in such proceedings and thus the culpability does not totally disappear from conjugal relations: it no further exists for the subsistence of the conjugal bond, but reappears at the moment when responsibilities are established, in the terms of the new article 1792, but always unfavourably towards the weaker party, the party not guilty of the infringement of conjugal duties or, anyway, the party offended by the former spouse.

8. On the other hand the new juridical regime of divorce could be launched upon conjugal life during wedlock. For instance, an economically feebler spouse could become subject to a repeated infringement of conjugal duties under the threat of, if such were not accepted, the other spouse suing for divorce unilaterally. At a limit, the new regime, instead of promoting equality between spouses, could perpetuate situations of personal dependency and submission to the more grievous infringements of the duties of respect, solidarity and cohabitation, amongst others.

9. As Members of Parliament are aware, the current regime – in the terms of No. 2 of article 1676 of the Civil Code – presumes that each of the spouses renounces the right to demand from the other any compensation for all the contributions provided within the framework consecrated by wedlock. The new divorce regime, whilst introducing a far reaching change of paradigm, places an end to such a presumption, implying that the contributions given towards the expenses of conjugal and family life are susceptible to generate rights of credit over the other spouse – while numerous issues remain in doubt, specifically as to knowing if the compensatory credit now set up can be renounced. Since conjugal and family life are not adapted to such a novel and distinct reality, possibly even generating «improvidence« or total «surprise» when marriage becomes extinct, the new model of divorce also corresponds, up to a point, to a new model of marriage, in which any and all contributions towards communal life may or not be accounted for.

10. Even if such a new model of marriage should be adopted, the paradox emerging from this «accounting» view of matrimony must be emphasized, since the global philosophy created by the new divorce regime corresponds to a concept of marriage as an area of affection. Any time one of the spouses decides that such affection has disappeared, it is now allowed that an end be placed unilaterally to the conjugal relationship, without any assessment of culpability or of any infringement of conjugal duties. Along with this «affective» view of marriage, it is now intended that an «accounting» view should exist alongside, in which each of the spouses is encouraged to keep a «current account» of contributions made, and only practice will be able to tell which will prevail. There are strong probabilities that the spouses will consider such an «accounting view» as intrinsic, thus generating a lack of trust which does not conform to the communal life that marriage should have as an ideal.

11. It is still possible to state, with some certainty, that the extinction of culpability as a cause for divorce will not diminish conjugal and post-conjugal dispute, and there are good reasons to believe that the result will be exactly the reverse, especially due to the increase in items of conflict provided by the legislator, whether in terms of economic assets, or with respect to parenthood responsibilities and the numerous undetermined concepts on which these are based (i.e., «the more relevant educational guidance»). A lowering in the number of divorces by mutual consent cannot be excluded and thus a consequent increase in litigious divorces. Such an increase in cases brought to court may result in great delays in obtaining compensation for damages, again with obvious .losses for the weaker party.

12. Lastly, what is implied by restriction to private autonomy and to contractual freedom by the provisions of article 1790, according to which «in the case of divorce none of the spouses may, upon settlement, receive more than would be the case if the marriage had taken place under the regime of community of assets acquired after wedlock», is extremely controversial. The fact that, even against the wishes of both parties at the time marriage took place, a different type of settlement to that which was chosen (specifically, that of communal property of all assets) is now enforced, substantiates, so to say, a «retroactive abrogation» of free choice. More than that, it substantiates a limitation which will always benefit one of the spouses to the detriment of the other, enforcing, when settlement takes place, a regime which differs from that which was established by common consent. For instance, the spouse who causes the divorce through infringement of conjugal duties may take advantage of such a provision, unilaterally suing for divorce and, when a decision on settlement conditions is reached, achieving that the other party receives less than what would have been its right in the terms of the regime both had chosen at the time of wedlock.

I have as such decided, in accordance with No. 1 of article 136 of the Constitution of the Portuguese Republic, to request that Decree No. 232/X be reconsidered, and return it to Parliament for this purpose.

With my best regards,

The President of the Republic

Aníbal Cavaco Silva