9 Which is the competent authority to turn to in cases of disputes and other legal issues?
For all legal actions brought, judgments given and acts issued until 28 January 2019 and outside of the scope of application of EU Regulation 2201/2003, international jurisdiction of Portuguese courts is governed by Articles 65 and 65A of the Code of Civil Procedure. For claims concerning the dissolution of the marriage and the division of property, the court of the place where the claimant has his/her domicile (“domicile” being the place where a person has his/her habitual residence, Art. 82 CC) or residence has local jurisdiction (Art. 75 Code of Civil Procedure).
For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.
This Regulation provides that the competent authorities will be as follows:
- For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
- In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.
- In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
- of the spouses’ common habitual residence at the time the court is seised; or failing that
- of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
- of the habitual residence of the respondent; or failing that
- of the spouses’ common nationality.
With the exception of any litigation, Portuguese notaries are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract or a choice of law agreement.
