Many Portuguese living abroad until now have moved to Portugal, where they have taken up residence, as well as citizens of other nationalities who have chosen our country to work or for other purposes.
Article published by Portuguese Times, Correio dos Açores, Voz de Portugal (Montreal) and Correio da Manhã (Canada) – May 2024
For many, entering into marriage is an option under the rules of Portuguese civil law, but when it comes to dissolving the marriage between two people whose residence, without the consent of the other spouse, is no longer in Portugal (e.g. A.), the question arises as to whether the Portuguese courts have jurisdiction to hear the case.
We are dealing with a multi-locational conflict, insofar as there are elements of connection with the Portuguese legal system (A.’s nationality, the place where the marriage was celebrated and the habitual residence of the spouses until the separation and the facts that constitute the cause of action for divorce) and with the legal system of the Plaintiff’s current residence.
Under the terms of Article 37(2) of the Law on the Organization of the Judicial System (Law 62/2013 of 26 August), the CPC sets out the factors on which the international jurisdiction of the courts depends. In this regard, article 59 of the CPC states that “(…) Portuguese courts have international jurisdiction when any of the connecting factors referred to in articles 62 and 63 are present or when the parties have attributed jurisdiction to them under the terms of article 94”.
According to the factors for attributing international jurisdiction set out in the C.P.C., namely in article 62, “Portuguese courts have international jurisdiction: (…) c) When the right invoked cannot become effective except by means of an action brought in Portuguese territory or when there is an appreciable difficulty for the plaintiff in bringing the action abroad, provided that there is a weighty element of connection, personal or real, between the subject matter of the dispute and the Portuguese legal system.”
However, when determining the international jurisdiction of Portuguese courts, it is also important to safeguard what is established in European regulations and other international instruments that are internationally binding on the State and which
which take precedence over other criteria (as is clear from the aforementioned Article 59 of the CPC and Article 8(4) of the Constitution of the Portuguese Republic).
Therefore, in this case, consideration should be given to the application of Council Regulation (EU) 2019/1111 of June 25, 2019, with effect from August 1, 2022, and as is clear from the provisions of Article 1(1)(a) thereof, which applies in civil matters in relation to divorce.
divorce.
In this regard, Article 3(a)(iii) of the same Regulation states that: “In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State: a) in the territory of which: (…), iii) the habitual residence of the respondent is situated, (…)”
Thus, even if the spouse (A.) lives abroad, it is enough for R. to be habitually resident in Portugal for the Portuguese courts to have international jurisdiction to decide the special action for divorce without the consent of the other spouse.
Judith Teodoro,
Lawyer
