The international jurisdiction of Portuguese courts is particularly relevant, especially for foreign nationals who reside in Portugal despite not holding Portuguese nationality and seek to dissolve marriages contracted abroad. Under Portuguese law, the court territorially competent to adjudicate a divorce petition is, as a general rule, that of the petitioner’s domicile. However, the central issue is whether Portuguese courts have international jurisdiction to hear such cases.
According to Article 3 of Council Regulation (EU) 2019/1111 of 25 June 2019, concerning jurisdiction, the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, as well as the international abduction of children, the courts of a Member State have international jurisdiction to decide on divorce, legal separation, or annulment of marriage if any of the following conditions are met:
- The spouses have their habitual residence in the territory of the Member State.
- The spouses last had their habitual residence in that territory, provided that one still resides there.
- The respondent has their habitual residence in that territory.
- In the case of a joint application, either spouse has their habitual residence in that territory.
- The applicant has their habitual residence in that territory and has resided there for at least one year immediately before the application was made.
- The applicant has their habitual residence in that territory and has resided there for at least six months immediately before the application was made and is a national of the Member State in question.
- Both spouses are nationals of the Member State in question.
Meeting any of these criteria confers international jurisdiction on the Portuguese courts to adjudicate the divorce proceedings.
It is important to note that the international jurisdiction of Portuguese courts does not necessarily imply the application of Portuguese law to the substance of the case. Under Council Regulation (EU) No 1259/2010 of 20 December 2010, which establishes enhanced cooperation in the law applicable to divorce and legal separation, the spouses may agree, within the limits imposed by the regulation, on the choice of law applicable to their divorce. This agreement may be concluded or modified at any time up until the commencement of proceedings in court.
In the absence of an agreement between the spouses on the applicable law, the divorce will be governed by the law of the State:
- Where the spouses had their habitual residence at the time the proceedings were instituted.
- Where the spouses last had their habitual residence, provided that this residence did not end more than one year before the institution of proceedings and one of the spouses still resides there.
- Both spouses were nationals at the time the proceedings were instituted.
Thus, the applicable law to the divorce may vary depending on the specific circumstances of the spouses, even if the proceedings are conducted in Portuguese courts.
The information in this article is for general informational purposes only and is not intended to constitute legal advice. While every effort has been made to ensure the accuracy of the content, laws and legal procedures can change, and the specifics of each case can vary widely. Therefore, readers are advised to consult with a qualified legal professional or attorney in Portugal for advice tailored to their circumstances before taking action. This article does not create an attorney-client relationship between the reader, the authors, or the publishers. The authors and publishers are not liable for any actions taken or not taken based on the content of this article.
Catarina graduated in Law in 2021 from the Faculty of Law of the University of Coimbra. She has been a member of the Bar since 2023.
