Registering rights derived from acts between spouses

Would the Land Registry make changes in ownership’s entry (proprietorship) on the bases of acts performed between the spouses?

In Portugal the principle of immutability of the matrimonial regime is in force. Therefore the matrimonial regime cannot be changed after the marriage (article 1714º of the Portuguese Civil Code).

However, in case of risk to the assets, due to bad administration of one of the spouses, Portuguese law allows the separation of assets (article 1767º of the Portuguese Civil Code). The marriage remains, but a partition of the existing common assets will take place, and the matrimonial regime becomes the separation of assets (article 1770º of the Portuguese Civil Code).
In this case the Portuguese Land Registry needs the judicial decision and the partition act to change the ownership’s entry.

The Portuguese law also allows the donation between spouses (article 1761º of the Portuguese Civil Code). However, this contract between spouses is only allowed when the regime of property is not that of compulsory separation of assets (article 1762 of the Portuguese Civil Code).
The donation between spouses doesn’t change the matrimonial property regime. This contract gives rise to a new entry of ownership of the property, or part of the property, donated, and requires an authentic act before a notary, a lawyer or a solicitor. The assets that can be donated are exclusively the ones belonging to the donator (article 1764 of the Portuguese Civil Code).

In the special case of foreign spouses, if the aplicable law, as regards to these acts, is their personal law or the law of the country in which they have permanent residence (on of the laws that can be chosen to matrimonial property regime), the requirements of such law must be fulfilled. However according to article 36 of the Portuguese Civil Code, it is accepted the formal requirements of law in force at the place where the contract is celebrated, unless another specif demand is made.

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As regards to registered partnership it does not exist in Portugal.

It is important to notice that in Portugal there are only two different situations:

• marriage – whether between 2 persons of different gender or of the same gender, without any difference (Law n. 9/2010, 31/05).
• de facto union – which is the situation of 2 persons living in conditions similar to those of the spouses, from which some fiscal or social security effects arise. However as far as property or inheritance is concerned this union is not relevant (Law n. 7/2001, 11/05).

Practical case 1

Paul and Mary married and they both own jointly an immovable property registered as such in your land book. Following a divorced between them, the property will become of exclusive ownership of Mary;

a) by means of the Court decision,
b) by an agreement between spouses in order the liquidation of their common assets.

In Portugal the effects of the decision on the divorce are exclusively the dissolution of the marriage. The partition (or liquidation) of the common assets is done subsequently whether by agreement before a notary (lawyer or a solicitor) or by court decision.

Upon request, it is made a new entry in the land books and an inscription of property right in favor of “Mary” based on the partition (or liquidation) document and the proof of tax payment.

The situation is relevant for the Land Registry only when the liquidation of assets occurs. Before the said liquidation, although divorce is decided, the property right is still common to both ex-spouses and there is no relevant information for the registry, despite the possibility of updating the civil statuts of the inscribed owners, if requested.

Practical case 2

Paul is the registered owner of an immovable property acquired by succession. Sometime after his registration, Paul marries Mary and decides that the property will be in the common ownership of both spouses, so they perform the transmission act by a matrimonial property agreement according to the applicable law.

Due to the principle of immutability of the matrimonial regime, it cannot be changed after the marriage (article 1714º of the Portuguese Civil Code).

In Portugal the matrimonial property agreement (called pre-nupcial convention) for the transmission of the property to “Mary” can only be performed before the marriage and it expires if the marriage does not take place within one year (article 1716 of the Portuguese Civil Code).

The pre-nupcial convention is registered at the Civil Registry in order to become opposable to third parties (article 1711 of the Portuguese Civil Code).

The change of ownership should enter in the Land Registry and the inscription is performed based on the said pre-nupcial convention.

Unless the matrimonial regime chosen is the general community of assets (article 1732 of the Portuguese Civil Code) or the compulsory separation of assets (article 1720º of the Portuguese Civil Code ), after the marriage “Paul” can donate a share of the property to “Mary”, however this donation expires in case death of the donee before the grantor or in case of divorce (Article 1761º of the Portuguese Civil Code ).

Registered partnership does not exist in Portugal.