United by marriage or married by cohabitation?

Opinion piece by Bárbara Figueiredo published [in Portuguese] in the Diário de Coimbra newspaper on February 28, 2024.

The relationship between two individuals in Portugal can be formalized in two distinct ways: either through the more traditional and impactful institution of marriage, or through the legal status of cohabitation – simpler and with fewer implications for the couple, particularly in case of separation.

While marriage constitutes a contract between two individuals, subject to registration, altering the marital status of the couple and imposing specific duties on both parties, cohabitation merely requires the couple to reside together for two years, recognized by the Parish Council of their residence area upon presentation of necessary documents.

Despite existing differences, cohabitation is equated with marriage for various purposes, such as income tax (IRS), labor rights regarding holidays, public holidays, absences, leave, or protection of the family home in case of separation or death of one of the partners. However, this equivalence does not extend to property matters. While marriage entails the choice of one of the legally prescribed property regimes (separate property, community property, or acquired property community), or the drafting of a prenuptial agreement, cohabitation does not imply any automatic sharing of property. Therefore, while cohabiting couples may acquire property jointly like any other individuals, such joint ownership does not result from their cohabitation status.

In case of separation, while the termination of marriage requires a divorce – with all legally required agreements – dissolution of cohabitation merely necessitates communication of the termination by one of the partners to the parish council to cease its effects. There is thus no obligation of property division, but if there are minor children, as in marriage, parental responsibilities must be regulated.

It is worth noting that despite the legislative trend towards increasingly equating cohabitation with marriage, the latter still provides more guarantees for the couple – some social benefits, entitlement to alimony, and succession rights. However, this trend of equating the two has its limits, as they are indeed two different legal institutions, each with distinct requirements and effects.

Despite being less protective, the cohabitation regime has been gaining more supporters in Portugal, with exponential growth over the last decade, unlike marriage, which, perhaps due to the increasing number of divorces – and all the implications thereof – has been increasingly less chosen as the form of formalizing a couple’s union.