Registering rights derived from acts between a married person and a third party

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1. When a married person becomes the owner of a registered property, which special requirements derived from his/her civil status must be taken into consideration in order to get the new title registered in the Land Registry?

Due to the patrimonial effects of the marriage,in Portugal, when a natural person becomes the new owner of a registered property, the information about his/her civil status, is mandatory. When the person is married it is also mandatory information about the name of the spouse and matrimonial property regime.

This information is declared before the notary and is mentioned in the deed (article 46 and 47of the Portuguese Notary Code).

Even when the matrimonial property regime is not the legal default regime but derives from a matrimonial agreement between spouses the information is also declared.
Consequently no entry will be performed definitely in Land Registry if these elements are missing.
There are no aditional requirements in case of foreign spouses

2. How the registration in favor of a married person would be done? Would any interested party be able to know by checking the land registry information any restriction in the powers of the owner derived from the matrimonial property regime?

The registration in favor of a married person must always contain information about the civil status, name of the spouse and matrimonial property regime.
It is also mandatory information about the adress, tax number and nationality of the proprietor.

The above information is mandatory and the new proprietor entered in the Land Registry as sole proprietor or as joint proprietor together with his/her spouse, depending on his/her matrimonial property regime.

When the proprietor is married under a community regime and the asset is common, the Portuguese Land Registry inscribes as proprietor the person who performs the acquisition act signing the relevant document. However, as the Land Registry also mentions the name of the spouse and the matrominial property regime it is possible to know, at each moment, that the asset belongs to both spouses. In the regime of community of assets, whether general community of adquired community, no shares are referred because it is considered a joint partnership.

When the proprietor is married under a community regime and the asset is not common, the Portuguese Land Registry refers that it belongs exclusively to one of the spouses.

When the matrimonial property regime is separation of assets, the Portuguese Land Registry enters the proprietor who performs the acquisition act signing the relevant document. If booth spouses sign the document the Land Registry enters both as proprietors, refering shares only if they are different.
This information is incorporated as a personal quality of the proprietor.

As regards to the restrictions in the powers of the owner derived from the matrimonial property regime, they are a direct consequence of the law, which must be known by any interested party, and it is not mentioned in the registry.

Under Portuguese law partnership cannot be registered.

3. What will the Land Registry demand from a married proprietor to register the transmission or any modification of his/her registered title?

Regarding modifications, due to the immutability of the matrimonial regime, they will not occur.

In what concerns transmissions, as it was said above, the matrimonial property regime is declared, so no proof is required.

Whenever the proprietor’s spouse holds certain rights on the registered property the registrar must check if the spouse took part in the deed.

When the asset is common the transmission deed must be signed by booth spouses and, as the family home is protected by Portuguese law, its transmission also requires the signature of booth even if only one of them is the owner.

Under Portuguese law partnership cannot be registered.

Practical case 1

Janos, who is married to Elena under a matrimonial economic regime of community of joint assets, buys an immovable property. He signs the deed of transfer before a local notary, acting solely and on his own, without any intervention of his wife Maria. The deed of transfer is sent to the Registry for registration.

Due to the patrimonial effects of the marriage, in Portugal, the identification of the parties in any document that transfers or encumbers an immovable property, includes the civil status, the name of the spouse and the matrimonial regime (Articles nº46 and nº 47 of the notary code).

If “Janos” is married under the matrimonial regime of community of joint assets or of general community of assets, despite signing solely the deed of acquisition, the property is a common asset of both spouses.
The inscription in the Land Registry will mention the civil status of “Janos”, the name of “Elena” and the matrimonial regime.
Likewise, “Janos” will not be able to perform solely any disposition act.

There is no difference if “Janos” and “Elena’s” matrimonial economic regime is under a foreign law. The parties will declare to the notary (or lawyer or a solicitor) the regime, which will, then, be mentioned in the registry inscription. In addition, the inscription will refer the nationality of “Janos” and “Elena”, in order to guarantee the application of the correct law (according to the Portuguese conflict of law rule) and the legitimacy in future conveyances.

According to article 53 of the Portuguese Civil Code, the applicable law on matrimonial regime depends on the nationality of the spouses, and that is the reason why the nationality is mentioned in the registry inscription.
However, according to article 22nd of the EU Regulation, whenever the spouses have habitual residence the applicable law on matrimonial regime may depend on this residence, which will raise further difficulties in determining the applicable law.

Under Portuguese law partnership cannot be registered.

Practical case 2

Pierre is married to Michelle and although the matrimonial property regime established by the applicable law is a joint community one, the same law allows the spouses to modify that legal regime adopting a different one which is the property separation of assets regime, for which purpose they both sign a matrimonial property agreement modifying their matrimonial community property regime into a separation of assets one.

When Michelle buys the right of usufruct on an immovable asset, she appears on her own in the contract of sale and the transfer deed and she wants that the registration to be made in such a manner that no restriction or limitation derived from her marriage appear in the registry.

Although the situation described would not occur today in Portugal, as far as Portuguese nationals’ concerns, due to the principle of immutability of the matrimonial regime, it might happen as regards to foreign buyers and, since January 2019 on, to Portuguese nationals having habitual residence abroad.

We suggest 2 different situations:

“Michelle” is buying an immovable – following the aforesaid reference on the proof of the matrimonial regime before the notary and the Land Registry, we would say that there is no need of any further document. It is enough the statement of “Michelle” in the deed of purchase on the regime of separation of assets.
When checking the legality of one document the registrar does not verify the “history” of the purchaser. The declaration at the moment of the purchase is assumed to be correct and is the one that needs to be referred in the registry.

“Michelle” is selling an immovable – If the immovable was acquired after the modification of the matrimonial regime, no document is required to prove it, because there is no unconformity between the registry and the disposition act.
If the immovable was bought before the agreement for modifying the matrimonial regime, at the moment of the sale it is necessary to prove the modification and to check if it has retroactive effects. However even in this circumstance, no disposition act or subsequent registry will be performed without the intervention of both spouses.

However, we must have in mind that the usufruct, according to article 1733 n1. c) of the Portuguese Civil Code, always belongs solely to the purchase no matter which is the matrimonial regime.
To make prove of the agreement for modifying the matrimonial regime, it would be sufficient, for the time being, to present a certified copy.

Although in Portugal the pre-nupcial agreement is mandatorily registered, the civil facts regarding foreigners are only subject to mandatory registration when they occur in Portuguese territory.

Therefore, if the agreement on the matrimonial economic regime is made in a different country, it is not registered in the Portuguese Civil Registry.

In view of the provisions now in article 22 of the Regulation, we anticipate that a registry of matrimonial agreement should be developed.

Under Portuguese law partnership cannot be registered.