Fault in Divorce

Opinion piece by Bárbara Figueiredo published [in Portuguese] in the Diário de Coimbra newspaper

Under the current legislation, filing for divorce without the other spouse’s consent does not require alleging a violation of any duty inherent to the marriage contract. Article 1781 of the Civil Code establishes that, beyond other grounds, a divorce without the consent of the other spouse may be based on any facts that, regardless of fault, demonstrate the definitive breakdown of the marriage. In other words, since 2008, it has not been necessary to invoke wrongful conduct by the other spouse for someone to unilaterally request the dissolution of their marriage. Consequently, the court ruling granting the divorce will not include a declaration of fault, as was previously the case.

Thus, regardless of the other spouse’s consent, if facts demonstrating the definitive breakdown of the marriage are presented, the divorce will be granted. This is known as Divorce – Recognition of Marital Breakdown.

But where does fault stand in these cases? Does it still have any consequences? Marriage entails rights and obligations, as set out in Article 1672 of the Civil Code, which establishes that spouses are mutually bound by duties of respect, fidelity, cohabitation, cooperation, and assistance. Given the existence of these obligations, what legal protection is available in cases where such duties are violated?

Although the violation of these duties is not necessarily grounds for divorce, the law has not disregarded the consequences of such breaches. Article 1792 grants the injured spouse the right to claim compensation for damages suffered, in accordance with the general rules of civil liability.

In theory, any harm caused by one spouse to the other, as a result of breaching one or more marital duties, could lead to compensation. However, the reference in the article to “the general rules of civil liability” means that the right to compensation only exists when the breach of marital duties also constitutes a violation of the other spouse’s personal rights—absolute rights that allow for the application of the legal framework of extra-contractual civil liability.

Thus, while marriage has been increasingly recognized as a space for personal freedom, self-fulfillment, and the pursuit of happiness—moving away from the notion of marriage as a perpetual bond—the law still provides legal protection in cases of marital duty violations, provided that the general conditions for civil liability are met, albeit framed within the specific duties and obligations arising from marriage.