45 JUL 2022 | WWW.LAWYER-MONTHLY.COM n Portugal, what does the process for divorce typically look like? Most divorce cases in Portugal are by mutual agreement, and the same applies to parental responsibilities regulations. Both processes may be done outside the courts, in the Civil Registry Offices, which allows them to be swifter and cheaper. The role of the lawyer, in such cases, is to act as a mediator, alone or in collaboration with a colleague, to ensure an agreement that answers both parties demands and needs. Unfortunately, such an agreement is not always possible due to disputes regarding property or parental conflict. In those instances, there is a need to resort to a court of law – but even then, we remain alert to the possibility of promoting a fair transaction, thus bringing the judicial process to an end, especially in disputes which involve children. The promotion and diffusion of practical alternatives for out-ofcourt settlement of disputes involving children is, in fact, one of the statutory objectives of the Association of Family Lawyers I co-founded in 2020 and that I currently preside. As it is often said “time of the children is not the time of the court”; they do not conform to one another. Parents risk losing the best of their children’s childhood to fruitless disputes, to the detriment of all concerned parties, especially the children. Our job is also to prevent this sad reality. How are joint finances and property typically divided in a divorce? How can a lawyer help to ensure a fair outcome? As a rule, joint finances and property are divided 50/50, according to the so called “rule of the half”. The biggest challenge is to ensure the correct identification and qualification of all the joint assets, according with the applicable property regime. In Portugal – with a few exceptions (in which the law imperatively establishes the separation regime) – the future couple may choose, before marriage, which property regime they want. They can even set their own rules, different from the ones established in the model property regimes set in the Civil Code, within the limits of the law. In practice, this means that the parties may choose which assets will be shared or which are excluded from the communion, regardless of whether they were acquired before or during the marriage. So, of course, this makes the matter of asset qualification a challenge. It is also important to verify which debts were paid, which estate was responsible for their payment (one of the spouses’ own estate or the joint estate) and which estate effectively ensured the payment, since this may originate an entitlement to compensations between estates or between spouses. The same applies to other compensation cases between spouses. A particularly important example of theses compensations is the one recognised to the spouse who, for the sake of the couple’s common life, has excessively renounced to the satisfaction of their own interests, UnravellingDivorce andFamily Law in Portugal Portuguese legal processes relating to family and child law are very different from those encountered elsewhere in the EU or overseas. Nuno Cardoso-Ribeiro, a highly experienced Portuguese lawyer and a major voice in the legal representation of families and children, outlines some of the unique facets of the law in this feature, drawing upon 20 years of experience in family law. What are the unique aspects of divorce and family law in Portugal, and how is legislation in the sector continuing to develop today? EXPERT INSIGHT I As it is often said “time of the children is not the time of the court”; they do not conform to one another.
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