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Portugal: What's Mine is Mine and Won't be Yours: The Newly Introduced Possibility of Opting Out of the Mandatory Succession Effects of Marriage in Portugal
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- By Rute Teixeira Pedro, University of Porto, Portugal
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2019
- Published by:
- Intersentia
- Published online:
- 09 November 2019
- Print publication:
- 16 September 2019, pp 261-270
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Summary
INTRODUCTION
In August 2018, a new act amended the Portuguese Civil Code making available to the about-to-be spouses a new option that allows them to reciprocally wave the mortis causa effects that were until then obligatorily connected to marriage. These effects were legally derived from the dissolution of marriage by death of one spouse. Law 48/2018, dated 14 August 2018, recognised the possibility of opting out of the spousal status of forced heir that had been imposed by law. In specific circumstances, before the solemnisation of their marriage, the future spouses may enter into a prenuptial agreement to that effect.
This innovative solution may be envisaged as an expression of the trend in recent evolution of family law and succession law towards the promotion of private autonomy in shaping the legal effects produced in these two spheres. This amendment embodies significant departures from some structural principles of Portuguese family and succession law, namely the compulsory nature of the succession between spouses on the one hand, and the prohibition of succession contracts, on the other.
In order to assess the impact of such an alteration and to understand the reasons behind it, it is important, firstly, to briefly depict the legal framework that previously applied, and which will still apply if spouses do not exercise the possibility that is now allowed to them (section 2). Following this, a panoramic view of the newly introduced rules will be offered, highlighting the conditions necessary to permit such a possibility (section 3). Finally, some concluding remarks will be made, highlighting the advantages and drawbacks of the new legal framework.
THE PREVIOUS REGIME
In the Portuguese legal system, the successorship position of the surviving spouse was significantly improved by a major reform that took place in 1977. As an expression of the horizontalisation of succession, the amendment entitled the surviving spouse to strong protection, abolishing the preference for blood ties which were to the detriment of the marital link. From that moment on, the surviving spouse was qualified, not only as intestate heir, but also as forced heir of his/her deceased spouse.
Portugal
- from THE REGULATORY APPROACH
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- By Rute Teixeira Pedro, University of Porto, Portugal
- Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
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- Book:
- Eastern and Western Perspectives on Surrogacy
- Published by:
- Intersentia
- Published online:
- 26 June 2019
- Print publication:
- 01 May 2019, pp 229-258
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Summary
GENERAL LEGAL FRAMEWORK
STATUTORY FRAMEWORK
In Portugal, specific legal rules allowing surrogacy were introduced very recently. Law no. 25/2016, dated 22 August 2016, which introduced amendments to Law no. 32/2006, dated 26 July 2006 (‘the Medically-Assisted Procreation Law’), created a legal framework for surrogacy in Portugal in 2016. A specific Regulatory Decree was enacted in 2017 (Regulatory Decree no. 6/2017, dated 31 July 2017) to supplement Law no. 25/2016, governing surrogacy.
In 1997, a change to the Constitution of the Portuguese Republic mandated the Portuguese State to regulate access to medically assisted procreation techniques ‘in such a way as to safeguard the dignity of the human person’, as is stated in its Art. 67 no. 2(e). But it took almost 10 years before the constitutional mandate was finally fulfilled: the law governing Medically-Assisted Procreation Law no. 32/2006, dated 26 July 2006 was enacted in 2006. According to its first version, although the use of medically assisted techniques to procreate was authorised (as long as certain requirements were met) surrogacy was not permitted in any circumstances. Another 10-year period elapsed before surrogacy was accepted by the Portuguese legal system: this happened with the enactment of Law no. 25/2016, dated 22 August 2016, which created many particular safeguards and envisaged the use of surrogacy as exceptional, and only possible when certain strict conditions were fulfilled.
Article 3 of this law expressly referred to the need for regulation of surrogacy, stating that the government had to approve the corresponding Regulatory Decree of the abovementioned Law no. 25/2016 within 120 days after the date of its publication in the Portuguese Official Journal which was 22 August 2016. The deadline was not met as Regulatory Decree no. 6/2017 was published almost one year later, on 31 July 2017. As a consequence, the legal regime governing surrogacy only entered into force on 1 August 2017.
Less than nine months later, on 24 April 2018, the Portuguese Constitutional Court has declared that rules of the statutory framework regarding surrogacy, as they were enacted in 2016, violated provisions of the Constitution of Portuguese Republic.
Portugal Chronicle of a Legal Reform Foretold: The Shape of the Law to Come Regarding Incompetent Adults in Portugal
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- By Rute Teixeira Pedro, Assistant Professor, Law Faculty and Researcher, Centre for Legal and Economic Research (Centro de Investigação Jurí dico-Económica (CIJE)), University of Porto, Portugal
- Edited by Margaret Brinig
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- Book:
- International Survey of Family Law 2018
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 28 September 2018, pp 441-454
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Summary
INTRODUCTION
A government bill has just been approved by the Portuguese Parliament which will introduce major amendments into the legal framework applicable to the guardianship of incompetent adults.
There are many reasons why this legal reform has become urgent, as will be explained in section 2 of this article. On the one hand, sociological and demographical phenomena have occurred in recent decades, as well as significant developments in medicine; on the other hand, some reasons arise from the legal standard of protection that ought to be awarded in accordance with the Portuguese constitutional framework and in compliance with the international commitments on the safeguarding of human rights, to which the Portuguese state is duty bound to comply.
The combination of those non-legal and legal factors led to the obsolescence of the legal framework currently applicable to incompetent adults. As will be described in section 3, the law on the books does not offer an appropriate response, nor does the law in action provide a suitable response to the problem of adults who require special protection, as they present a particular vulnerability that has to be properly addressed by the law.
The new provisions that are included in the recently approved new Law (Law 49/2018, dated 18 August 2018) involve a paradigm change regarding the legal approach to this problem. The paternalistic intervention based on the restriction or deprivation of legal capacity will be replaced by a more supportive intervention based on the promotion of autonomy and inspired by the principle of proportionality. In section 4, the new legal framework will be considered in order to highlight the main traits of the law that will come into force in this area in February 2019.
THE NEED FOR A REFORM OF THE LEGAL FRAMEWORK APPLICABLE TO INCOMPETENT ADULTS IN PORTUGAL
As the data on demographic trends shows, the ageing of populations is a phenomenon perceptible worldwide; not only is there a rise in the number of older persons, but their proportion amongst the overall population is also increasing. Portugal is no exception – the population aged 60 years or over represents 28 per cent of the overall Portuguese population.