EXPERT INSIGHT 46 WWW.LAWYER-MONTHLY.COM | JUL 2022 particularly those of a professional nature, with important patrimonial losses. This allows a fairer asset distribution between the couple, recognising the effort of the spouse who gave up work in order to secure the care of the children or the domestic chores. Even so, the Portuguese legal regime leads to outcomes less advantageous to the non-working spouse (or to the spouse with a lower income) than other countries, since the state pensions received after divorce cannot be shared, regardless of the property regime. Similarly, the conditions to recognise spousal maintenance rights to the exspouse are quite strict. In Portugal, how is parental international child abduction legally defined? How are these cases typically resolved? In Portugal, like in the vast majority of western states, parental international child abduction is defined mainly by the Hague Convention of 1980, on the Civil Aspects of International Child Abduction – in short, there is an international child abduction when a child is taken or retained across an international boarder, away from their habitual residence, without the consent of the parent(s) with the right of custody. The Brussels ii Regulation also refers to this definition, adding important rules regarding the international competence of the Member-States Courts. However, there is also space for national differences – with the biggest specialty, in Portugal, residing in the interpretation of the concept of “parental responsibility” and “right of custody”, since the latter is not used by our national law. Instead, as a legal rule, both parents will have the power to decide the big questions concerning the child’s life (the so called “exercise of parental responsibilities regarding matters of particular importance”), regardless of the residency model established in the parental responsibilities regulation. In other words, despite the fact that the child habitually lives with one of the parents, both must decide together in which country their child will live. To put it simply, if we were to translate the Portuguese solution to the legal language used abroad, both parents would have a shared right of custody as a rule. Of course, this solution has a big impact on parental international child abduction cases, as it deems illegal almost any unilateral relocation or retention of the child outside their country of residence, enabling the activation of the Hague remedies. Personally, I find that the Portuguese legal solution has many virtues. The decision regarding a child’s country of residence should not be taken lightly. After all, the change of country will have a significant impact on the child, determining changes in their upbringing and development. It should never, in any circumstance, be used as a means to keep one of the parents away from the child. The attribution of the decision-making power to both parents allows for greater control over the decision – and in the end, if the parents cannot reach an agreement on the intended change of residence, the decision will be made by a judge, thus better guaranteeing its adequacy to the best interests of the child. What is the percentage of foreign clients that you work with? And what challenges does this pose in terms of having to deal with different jurisdictions? In our office, over half our clients are foreign or are involved in an international affair. Our team is composed by colleagues proficient in English, Spanish and French, and/or with a good written and oral comprehension of German. This is fairly important, since we deal with foreign clients, state entities, colleagues and documents on a daily basis, with which we must be able to communicate flawlessly for obvious reasons. Different jurisdictions always pose an additional challenge, first and foremost because it requires specific knowledge and understanding, however minimal, of the functioning of foreign legal solutions and law systems. Many cases also demand international cooperation between colleagues in different jurisdictions, to ensure the best possible outcome to the client. For both of these purposes, we at Divórcio Despite the fact that the child habitually lives with one of the parents, both must decide together in which country their child will live.
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