Marriage: Between Love and Property

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

Property and its division are invariably one of the major focuses of litigation in marriage, especially when it ends. This focus can spread to other areas, particularly to the regulation of parental responsibilities when the now ex-couple has minor children, as often an agreement that safeguards the best interests of the children becomes more difficult to achieve due to the existing litigation regarding the division of property.

With this framework in mind, it’s important to remember that, without prejudice to the possibility of prenuptial agreements being made to regulate specific aspects, three property regimes are provided for in Portugal: general community property which, as the name suggests, implies a total community of the spouses’ property and which was, until 1967, the default regime; the separate property regime, which, without prejudice to both spouses contributing to the upkeep and expenses of the home and family, assumes that each spouse maintains their property in their legal sphere, both what was acquired before and after the marriage; and lastly, the community of acquired property regime, in which each spouse maintains only the property they hold at the time of marriage in their legal sphere, with community property being provided for what is acquired afterwards. This is currently the default regime, so in the absence of choosing a different regime, this will be the regime in force.

As mentioned, until 1967, the general community property regime was the standard regime, which came to be replaced by the community of acquired property, in order to respect the patrimonial autonomy of the spouses, at least in relation to the assets that each brings to the marriage.

Now, bearing in mind the exponential increase in the number of divorces (closely accompanied by an equally impressive decrease in the number of marriages), and the litigation that the form of property division often entails, it is worth questioning whether the default regime should not be that of general separation, thus facilitating in advance a particularly difficult phase for all family members (divorce), clarifying more transparently what belongs to whom, with the consequent reduction in sources of litigation. Such a possibility may not reflect the romanticism that we fortunately continue to associate with marriage, but at the end of the day, we cannot forget that marriage is a contract. A contract that, increasingly, has an end.