FAMILY LAW

MARIA DO CARMO MEDINA

 CHAPTER I.
INTRODUCTION
The generic concept of family, the legal family relationships and their
autonomy

In the scope of our study, we will have to focus on the field of law.
that regulates and disciplines family legal relationships.
These legal relations are based on a social phenomenon that is constituted
for the family. The family is in itself a natural phenomenon inherent to human society. The
The socialization of the human person begins in the family.

The concept of family is not, in any way, a static and unchangeable concept.
On the contrary: like other human and social phenomena, it is subject to a
process of evolution and transformation. One cannot understand the family as a
uniform institute, given that within the same State there can be more than one type of
family group.
Within Family Law, various sub-branches of law are included: the
matrimonial law, which regulates the legal relationships of a personal and patrimonial nature
which are established between spouses; the right of filiation or parent-child right, which
establishes the rights and duties between parents and children; the right of kinship, which
determines the legal effects existing between people connected by blood ties
coming from a common ancestry; the right of affinity, which regulates the rules
binding ties of the alliance established between one spouse and the relatives of the other spouse,
or, if we want to understand in a broader sense, the rules that govern the alliance between
two families; the right of guardianship, which aims to regulate the forms of substitution of
paternal authority; the right that regulates the legal relationships arising from adoption, the
which, as we will see, establishes a legal bond identical to that of parenthood between
people not linked to each other by biological ties, etc.
Within Family Law, we will also study certain situations of
fact that, due to its importance, the legislator cannot ignore, such as the
free union between a man and a woman outside of marriage, referred to as
de facto union. And also the de facto separation between spouses who, although united
legally, through the ties of marriage, the cohabitation ceases, aside from the divorce
common.
Another situation of great relevance in Family Law is the so-called
possession of state of family legal relations, which the legislator recognizes effects
legal statuses, such as the status of being married or the status of being a child, which assigns
to the son a real experience as such.
From them important legal consequences derive, and there are those who call it the
this phenomenon is the legal formalization of de facto relationships.

Within the family, there were institutions of a patrimonial nature, such as the regimes
property agreements between spouses, where the regulation of issues is provided
such as the acquisition and management of the couple's assets, their disposal, and also the
management of the assets of minor children assigned to the parents, etc.. A
The very structure and functioning of succession law are intrinsically linked.
to the norms of Family Law.
Family Law or, if we want to say, 'the family rights' are in general
the rights that protect the interests of the people who are part of the community
familiar. The family can

thus defined as a social group related to each other by obligations and

mutual rights.
The family status is the subjective situation of the person within the family, as a holder.
weighing the plurality of specific rights, powers, and duties.
a) Codification of Family Law
Socialist legal systems rejected the bipartite division of law into
public law and private law, adopting a unitary conception of law, derived from
from a single source of state power.
What is important to highlight is that, in these systems, Family Law
constituted an autonomous branch of law, distinct from civil law. It was becoming autonomous
family law due to the specific type of legal institutions it regulates,
therefore, in these countries, family laws were laws separate from the civil codes.
 At the level of the African continent, there is also a trend to autonomize the
family law with the publication of the respective codes Family Laws of S. Tomé
e Príncipe (1977), the Family Codes of Ivory Coast and Algeria. The laws of
Family, Divorce, and Filiation of 1976, from Cape Verde were
revoked and the norms inserted anew in the Civil Code by the Decree-
Legislative No. 12-B/97 of June 30.
In the systems of Roman-Germanic law, which include Germany and countries
In Western Europe, family law norms are integrated into the respective
civil codes. We found that in a legal system that is close to ours, the law
Brazilian, was approved by Law No. 10,406 of January 10, 2002, the new Code
Civil that dedicates its Book IV to Family Law, thus following the system
Romano-Germanic.
However, in Catalonia, Spain, there is the Family Code that was
autonomized from the Spanish Civil Code. The Family Code approved by Law no.
9/1990 of July 15 with amendments from laws n.° 3/2005 and n.° 10/2008.
Because we live in a time of profound changes all over the world, in law
from family, the method of publishing standalone laws has often been used that
they update important family law matters on time. In Chile it was
published Law No. 19,947, of May 17, 2004, the Civil Marriage Law. In
The People's Republic of China enforces the Marriage Law of 1980 which underwent profound
revision in 2001. In Sweden, the Cohabitation Law was approved in 2003. In France
The Divorce Law of May 26, 2004 was approved, which came into effect on June 1.
January 2005.
In Mozambique, Law No. 10/2004 of August 25 was published, which approved the
Family Law that came to revoke the respective Title of the Civil Code. In South Africa
the Civil Union Law was approved, which came into effect in November 2006 and was
the first law on the African continent to recognize the effects of the union between people of

same sex. Law 54/2006 of Italy,

 came to amend the Civil Code regarding the exercise of parental authority
by separate countries, establishing and regulating the exercise of parental authority
jointly.
In Switzerland, the Registered Partnership Law was approved, which came into effect on
from January 1, 2007, applicable to unions between people of the same sex. The
Norway approved the Marriage Act in June 2008, which came into force in January.
from 2009 and allows formal marriage between people of different sexes or of the same sex
sex.
In Portugal, Law No. 61/2008 of October 31 was published, which amended the
legal regime of divorce, doing so through the amendment of the provisions of the Code
Civil and completing them with amendments to the Code of Civil Procedure and the Civil Registry.

In the year 2009, provisions concerning the establishment of affiliation were amended.
Law No. 14/2009 related to marriage Law No. 29/2009, of June 29, which has been amended
allow marriage between same-sex people. More recently, Law no. 2/2011
On March 15, the following procedure was established in the civil registry for making changes.
the change of sex and of proper name.
In the Anglo-Saxon legal system, family law is integrated into statutes.
specific about its fundamental institutions, such as marriage, divorce, parenthood
and children's rights. Even in countries that have carried out legislative reforms
important after the changes in the socialist world, family law remained in
separate diplomas. It should be noted that the Czech Republic, despite a lot of
controversy, chose to introduce from 1998, the family law reforms in
Civil Code.
b) Promoting function of Family Law
Finally, we should point out the promoting function of family law in the scope of
behavior of family members and in defense of their legitimate interests
members as they are protected by law.
It is important to recognize that family law is profoundly intertwined with
issues related to sociology and anthropology that study the foundations of
human behavior in the social environment and the structure of customary law.
 It is certain that issues of an eminently political nature will reverberate in the
family law, such as the defense of the fundamental rights of the human person to
freedom and equality, the position of women in society, the politics of each country in
in relation to the increase or decrease of the population.

It often happens that there is a mismatch between the content of the norm.
legal to social practice, because often the weight of traditions leads to exploitation and
the oppression within the family and the disrespect for the principles upheld by law and the use
abusive of rights. But it is also true that the knowledge, by each person, of their
own rights allow for easier claiming of their exercise and their
subjective application.
Therefore, reforms in the field of family law have an undeniable impact.
in the social sphere and act as a promoting agent of the progress of society itself. The
family law grants a true power of intervention through legal means, changing
previous behaviors that are no longer protected by law.
Many times, the norms of family law are, in their essence, norms of
ethical-legal content that defines the ideal type of family relations. This branch of
law cannot, therefore, be viewed passively as the reproduction, the
Legal level, of a social reality. It must first translate into a means of action.
in social structures, aiming concretely for a new behavior and a new
relationship between family members.

Brief historical notion of the family and family systems

The study of family law requires that we have, first of all, an understanding of
what is family. It is a concept that cannot be understood dogmatically, because
he is correlated with the economic, cultural, and social reality of
different human societies.
The family has its origin in the natural phenomenon of procreation and propagation.
of the human species. But it is above all a social phenomenon, as it has been throughout the ages

it has been verified that not only biological factors intervene in it. Other factors intervene

other factors of a social and economic nature. As such, the concept varies according to
the social and political structure in which it is inserted and it is worth recalling the various concepts
of families that accompanied the historical evolution of human societies. There is no
a unique concept of family, but diverse concepts.
We have the extended family or the large family established based on
kinship. It is the parental family formed by a wide set of people, united by
a common ancestry, linked by strong bonds of solidarity and with a
community of economic interests.
The monogamous family is structured around the unique and exclusive marriage of

spouses. The polygamous family, or better said, polygynous is one in which the
A husband is presented as being connected by valid marriage ties to more than one woman.
simultaneously.
In the 19th century, the concept of free will and the predominance of reason were invoked.

for the explanation of social phenomena.

From early on, humanity began to impose restrictions on procreation relationships.
among blood relatives (parents and children, brothers and sisters), prohibiting incest and more
forward engaging in exogamy, that is, marriage outside the family group.
We can also point out the importance of domestic economy societies.
that women represent a large part of the workforce, producing food
necessary for the maintenance of the family with significant social importance.

The clan or group is made up of groups of descendants from a

common ascendant and, as we saw, can be established by maternal means, when there is the
reference to a common female ascendant, or being established through the paternal line,
when the reference is made to a common male ancestor.
In a later phase, the family is characterized by polygamy practiced by
a man, having as a counterpart the requirement of a rigorous fidelity from the
woman. However, polygamy is generally practiced by male members who
they hold power: "Polygamy is a privilege of the rich and the powerful... the masses of
the people are monogamous.

In this type of society, the woman is subordinate to the husband and in rural areas.
the family constitutes a unit of production in which it is the women's responsibility to carry out the

agricultural work and the household maintenance services of the family group, such as
the transport of firewood and water, the preparation of food, the care of children,
In it, marriage bonds are not indissoluble.
Different is the family society of the patriarchal type that is based on power.
exclusive to the man, the patriarch, and is characterized by the organization of a group of

people, free and unfree, subjected to the paternal power of a chief.

This type of family is depicted to us in the biblical times of the Old Testament.
Testament, in ancient Rome, in the China of the mandarins and in the Muslim world in general.
There coexisted the slaves and the family members, such as children, grandchildren, and respective...

women and other relatives, subjected to paternal authority.

The monogamous family appears later, still based on the predominance of man.
Its purpose is the procreation of offspring, safeguarding the undisputed paternity of
children from the husband and considering the transmission of ownership and possession of
goods within the family.
The monogamous family is characterized by the greater solidity of family ties.
establishing the principle of the indissolubility of marriage, except in cases
exceptional, in which the repudiation of the woman by the husband is allowed. Monogamy does not

prevents man from practicing heterism, that is, sexual relations outside of
marriage, a practice that is often approved by custom and by law. Despite this,
the woman reached a higher position in monogamous marriage. The marriage
thus allowed the transmission of private property within the family, consolidating
the power of the bourgeoisie.

The family in traditional African society

It is interesting to point out some of the predominant characteristics in the various types of

family organisms that are found on our continent, with special emphasis on
the southern zone. The primitive inhabitants of this part of southern Africa, the San people,
improperly designated as bushmen, are characterized by an organization
collective power and marital relationships based on monogamy/5*
In Bantu peoples, sedentary life supported by agricultural activity predominates.
in cattle raising. Among these black African peoples, the idea of family is understood in its
foundations and structures, taking into account the very relationships that connect man to
land. This is collectively explored by the family.
Production relations are closely related to relations
family members determine individuals' rights to the land and its products
and your rights and obligations to receive, give, and cooperate, as integrated members in
family group. Kinship relations function as means of production.
It is in this line of thought that marriage fits, which translates into a
alliance from group to group and not from individual to individual. It is a group alliance
domestic and not among groups of affiliation. Paternal authority is not necessarily
exercised by the parent but by the head of the family.
In traditional African law, there are specific rules regarding kinship, to
affiliation, at the price of the bride as a member of the marriage and to the matrimonial regime of

good.
The responsibility for fulfilling obligations and for other business matters
legal matters will fall on the family group and not solely on the individual.
In general, women are not recognized as having legal capacity to be prosecuted.
and held accountable without the assistance of a legal representative.

Levirate and sororate are widely noted, confirming the direction

the principle that marriage is established by agreement between families.
The preliminary phase of marriage consists of the delivery of performances of
the groom's family to the bride's family, which represents an economic compensation for the
exit of a family member (the woman becomes subordinated to the power of
husband). On the other hand, the amounts received by the woman's relatives can be
applied to the payment of an installment for the celebration of a marriage of a
male family member and thus ensures compensation for the departure of a
female family member by the entrance of another woman.
Carlos Valiente Noialles, The Bushmen, Forgotten Peoples of IXjrique
Australe.
Through marriage, the husband acquires true rights over the person of the wife.
in rem, for if someone kills her, assaults her, or commits adultery with her, it is attributed to the
husband has the right to demand compensation. But if it is the husband who mistreats the wife
If you cause her death, it is the woman's relatives who have the right to be compensated.
It is recognized that customary law has a well-developed system of norms and
principles that refer to issues of engagement, wedding ceremony, relationships
between parents and children, marital conflicts, inheritance law, etc.. The right to alimony, the
adoption and affinity relationships thrive within the family with their own rules. The
Family law is, therefore, the most developed in African communities.

The family in modern society

There are periods in which the family is deeply affected and even destroyed by
certain phenomena, such as slavery, periods of war and instability
which originate the massive displacement of the population, migrations, etc.. There is a

relaxation or even rupture of family relations.

But, after these periods of transformation or social upheaval, society
the familiar reassembles and reconstitutes itself in new forms.
The family in modern society corresponds to a given social stage resulting from
of industrialized technical-scientific development: spouses and the coexist.
respective children, forming the nuclear or conjugal family.
It is, therefore, a concept of family with a more restricted scope, composed of a man.
It is a woman, forming a community of life, united with stability and hers
common proletarian.

They share important rights and reciprocal duties of solidarity among the
its members, such as the right and duty of mutual aid and moral and material assistance,
which translates into the provision of alimony, etc.
Although in the present there is a restriction on the extension of the family now reduced to the family

nuclear, or small family in the strict sense, does not take away its greatness
social importance. It is assigned a highly significant activity, as it is considered the
basic nucleus of the fabric of society, where interests are intertwined
personal and social nature.
The family is recognized as a stabilizing function whose
preservation is of interest to the evolution of society itself. Therefore, it must be supported and
protected by the State. It is especially incumbent upon the conjugal family to procreate offspring,
the education and upbringing of children and, in short, the satisfaction of affective feelings
of each person. In it, the basic needs of coexistence are directly realized.
human.
In a more reduced form of family unit, we find ourselves today, in number
increasingly larger, with the single-parent family, composed solely of one
progenitor, the father or the mother, and their respective children. This occurs in the case of mothers.

single mothers, of separated, divorced, or widowed parents who live with their children.

Although the small modern family has lost its economic value, it
it is still very relevant in a cultural aspect, as it is in it that, from generation to
generation, cultural values are passed down from parents to children. Through upbringing,
instruction and education of the new family members are being passed on the teaching of
language, the knowledge acquired by older generations, the habits of living,
that form the essence of each people.
The retrograde concept that the conjugal family should be postponed
established under the authoritarian power of the husband over the wife, embodied in the
marital guardianship, which brought about a true capitis diminutio for the woman.
It also ceased to adhere to the principle that, in parental relationships,
the power of the father should prevail over the children, subjugating the mother.
Today, a new concept of marital family is accepted that does not require the
the preponderance of a 'leader' is based on freedom and individuality of
two spouses and in the supportive coexistence of its members. The family is replaced
structured in the hierarchy by the family structured in the diarchy (of husband and wife) and
based on the consensus of both. Rights and duties are assigned to the husband and the wife.
structured in equality, in light of the essential truth that human dignity is the
the same for men and women.
Similarly, the view of the relationship between parents and children who understand each other changes.

must be exercised with authority but without authoritarianism.

^ A. Burguière, C. Zuber, M. Segalen and E Zonabend—"And tomorrow, the family?"
in Family History—vol. IV. Terramar Edition, 1995, p. 140: "The modernization of
societies were not formed against the family, but rather with it. Sometimes a residential group, sometimes
network, the family is a support point for the individual who has to move, enter into
city, penetrate into new job markets... the study of transformations
families linked to modernity highlight the diversity of responses of the
institution in light of the new economic and social conditions.
The unions between people of the same sex, an expression of homosexuality, will
gaining ground in legal recognition, especially in countries with cultural influence
European. The change in the conception of family relationships leads to the acceptance of
new realities within family life.

Fundamental principles of Family Law

In modern law, we can, in summary, express the following principles
common fundamentals to various legal systems today:
a) The principle of the separation of the State and religious confessions in law of
family, which usually results in the unique recognition of the secular marriage celebrated
by a state body, be it the civil registry conservator, as happens among us, or
the president of the chamber, the judge, the notary. In these systems, all issues related to
the validity and dissolution of marriage, etc., are resolved by the judiciary and not
by ecclesiastical courts. Other legal systems adopt the principle of equality
the diverse religious beliefs in relation to the State, and allow churches to legally
recognized celebrate religious marriage to which civil effects are attributed, since
that comply with the regulations stipulated in the respective current legislation of law
matrimonial.
b) The principle of the freedom to choose the way to form a family and of
the dignity of its members, according to which every person has the fundamental right
to establish a family, being free to choose how to create one's own
family, through marriage or common-law partnership, or even to not create one, not being in
any of the cases affected his dignity.
c) The principle of equality of rights and duties between man and woman in
all aspects of family life, a principle that has its source in the law itself
constitutional, which guarantees you in its article 35, n. 3ín). This principle is extensible to
all family legal relationships, whether in marriage, in de facto union, in relationships
between parents and children and in the other family institutions.

The principle of equality of rights in matrimonial law derives as

principle of public order, the principle of monogamy or monoandry, according to which
the marital bonds have an exclusive nature, so that one who is in the
marital status of married, man or woman, contracting a new marriage, under penalty of committing the

crime of bigamy.
When we talk about equality of rights and duties, we do not want to impose
forcibly the existence of equal tasks for men and women within the family.
They should be distributed in a harmonious and balanced manner within the principle of
solidarity that should be established among family members.
The law must refrain from indicating what the role of women is within the family, as
when this happens it is to place her in a position of subordination. Today the trend
it is to recognize that it is not enough to simply state the principles of equality of
rights, making it necessary to bypass so that the existing inequalities remain that
are evident in all aspects of political, social, and economic life, with
disadvantage for the woman.
This is how the principle of parity is accepted, which aims to go further, and

will temporarily promote the so-called "positive actions", which gradually

they ensure an effective parity, that is, a future equality, between man and
woman in all fields of life in society.
d) The principle of stability, by which the aim is to strengthen family bonds,
giving special value to family maintenance in order to establish strong relationships and
durable, maintaining their union, making the moral right-duty of mutual assistance effective
the material among family members, in the formation and education of children, in protection
of elderly or disabled members, in the provision of food, in the restriction of rights
to divorce, etc..
e) Protection of the child in general, as the primary object of activity
adult family members, ensuring the fundamental rights of the child such as
subject of law, and creating State bodies, such as the courts, Attorney General's Office
Republic and social assistance that above all, seek to protect the rights of
child. The abolition of discrimination between children born inside or outside of
marriage, which date marks the end of the last quarter of the 20th century, was a decisive step in this

meaning. It is today enshrined in article 35, paragraph 5 of the Constitution, as follows

better we will see.

As a corollary to the realization of the right to identity, actions are facilitated.

for the establishment and contestation of affiliation that are no longer subject to deadlines
of expiration.
The adoption is instituted, which must always safeguard the interests of the adopted minor;
Tutela is characterized as an institution of public law whose purpose is to achieve the better.
protection of the minor deprived of family protection. In all these cases, the State,
through its judicial and social assistance bodies, has the power to intervene in
intra-family relations, depending on how they are exercised by the holders of the respective
rights, harm the child.
f) Principle of the state's protection of the family. Due to the relevance of the family unit
It is in society, it deserves special protection from the State.
This protection develops in multiple aspects, such as the provision of
housing, health services, education, the allocation of security subsidies
social due to maternity, physical incapacity or old age; the establishment of bodies
specialized to help resolve family conflicts, the mediation bodies
familiar, the specialized family law courts, etc..
All this seeks to preserve family ties and social stability. In
the top of the issues related to the family is the demographic policy of each State that goes through

or to enhance family planning aimed at controlling growth of

population or, on the contrary, encourage its increase by granting allowances and bonuses to the

large families.
The demographic policy of a respective State can counteract excess
children, imposing fiscal and administrative sanctions when this is the case; or also take
a position of mere neutrality, leaving the issue to the discretion of each citizen.
It is certain that the uncontrolled growth of the population, without the necessary conditions

the basic welcoming of children being born is shown to be highly negative

for the sustainable development of the State.
 In the pursuit of protecting motherhood and childhood, the State must create daycare centers and

kindergartens for the benefit of the child and their parents. In certain legal systems
it is expected to protect the economically more vulnerable individuals through payment
advancement of alimony payments by the State, having this right of recourse
about the debtor.
The State can still grant credits to young people so they can complete their
vocational training, or credits to young couples for home purchase
through reimbursable allowances. The measures of a social or property nature that
The state's powers can take multiple forms and depend on its own stage of
development and its economic capacity.
Currently, there is a trend of greater state intervention in relationships.
relatives, aiming not only for a consensual solution to family conflicts, but also for
protection of the weaker members of the family, and especially intervening in their defense of

children's rights when it is shown that the holders of parental authority are not
exercise them in accordance with the law.

In many aspects, the concept that family life was left behind.
the citizen's right to privacy is being reduced, understanding that there are higher values
that must be protected. Some refer to this phenomenon as 'defunctionalization'
of the family due to society and the State having assumed some of their
traditional functions, such as the educational, assistance, and security function.
Furthermore, the State cannot remain indifferent to the disintegration of the cell.
familiar and the breaking of the complex ties that bind family members by what in
in crisis situations, one should seek to resolve conflicts and thus ensure a greater
family stability that will reflect on society itself.
In this field, the activity of specialized judicial bodies (such as the Courts
of Family) and the para-judicial bodies (such as mediation and consultation bodies
familiar, diagnostic centers, social assistance to the family and others) can have
important role in the prevention and resolution of family conflicts.
 Among us, the Unified Justice System Law, approved by Law No. 18/88,
establishes in the Provincial Courts the Family Chambers, with the competence assigned to them
attributed by Art. 32.
1. Compete à Family Court prepare and judge cases related to
constitution, annulment, alteration, and dissolution of family legal relations and the
regarding the exercise of family rights and duties, except those that are required by law
affects to the civil registry offices 2. In family matters, the Provincial Court does not have
height.
A court of specialized jurisdiction is understood as one that reviews
issues within a specific area of legal knowledge with technical quality
specific. The importance given to family relations is evidenced by the institution of
specialized competence courts to hear the respective disputes.
Likewise, it stands out that in family actions the judge's performance is
directly intervening in the collection of evidence, being able to promote
(u) F. M. Pereira Coelho. Marriage and Family in Portuguese Law, in Themes
Family Law, p. 26. Almedina Bookstore, 1986.
judicial actions that it considers necessary to reach the truth
material, as provided in Article 7 of Law No. 1/88.
On the other hand, the Public Prosecutor has broad powers in actions.
relatives that address children's rights, must intervene
in all actions concerning minors. The new Organic Law of the Attorney General's Office
Republic, Law No. 22/12 of August 14 (D.R. No. 156) integrates the Public Ministry,
with magistrates and its own statute. The Public Ministry is assigned extensive
competence in its article 36 and in paragraph a), granting it the representation of the State,
of minors, incapable, uncertain, and absent.
The Public Prosecutor's Office is responsible for defending the rights of minors in a way

whether preventive or repressive, being attributed to it legitimacy to the

proposing various actions on behalf of the minor. As timely
we will see, these powers are today equally enshrined in the competence granted to the
Public Ministry in art. 186, letter b), of the Constitution.
 Interconnection of Family Law and other branches of Law
Family law is interconnected with other branches of law and their norms.
they will resonate. The closest connection is with succession law, whose norms
are directly correlated with legitimate succession.
The right to social protection for children and young people and the juvenile justice system

are intrinsically linked to the exercise of parental authority by the respective

headlines. We can today consider that children's rights are becoming autonomous
as an autonomous branch of law distinguished from family law, of assistance
social. In Angola, particular attention has been given to children's rights for which
The effective implementation was established by Decree No. 20/07 of April 20, the Council
National Child (CNAC) which brings together various state bodies, from the community
from the family.
Law No. 25/12 of August 22 was approved (D.R. No. 162) Law on Protection
and the Integral Development of the Child, composed of XI Chapters and 93 articles of
extensive curriculum content that assigns specific duties and obligations to the government
in their areas of expertise. Obligations extending to the family, public companies and
private, or from economic agents and civil society.
The Law for Persons with Disabilities, law no. 21/12 of July 30 (D.R. no. 145) whose
the scope of application is extensive to all persons with congenital disabilities or
acquired, was also approved. In its article 10, it establishes that it is the responsibility of the State

adopt measures that provide for the family of a person with a disability measures that
provide for your full participation and in article 16 it determines that the State shall take

measures to reconcile professional activity

deficient with family life and well as the family members of the deficient with the
respective professional activity.
Similarly, in criminal law we will find sanctioning norms that have
origin in the violation of family duties or in criminal conduct in the practice of acts
of a family nature. Criminal law specifically addresses the so-called 'crimes
against the family" that punishes behaviors that seriously violate family duties.
The Law against Domestic Violence, Law No. 25/11 of July 14 (D.R. No. 133)
puts the facts that occurred within the family or other contexts and criminalizes various types of
sexual, property, psychological, verbal, and physical violence, family abandonment and
conducts such as the practice of marriage with minors under 14 years or incapacitated/15)
 CHAPTER 2.
FUNDAMENTAL SOURCES OF FAMILY LAW
Constitutional Law
The fundamental principles on which family law is structured have
usually sits in the very Constitution of the State, as they are intrinsically
linked to the entire structural political conception of a given legal system. This
it happens in almost all constitutions and fundamental laws that enshrine the
social and political importance of the family.
In the first Constitutional Law approved with the proclamation of Independence,
on November 11, 1975, of a more programmatic and organic nature, it was not done
any mention of the family.
It was primarily the Partial Reform of the Constitutional Law (approved by the Law
No. 12/91) and then the Constitutional Law approved by Law No. 23/92 that came
to enshrine the fundamental principles concerning the family and the child in its articles
29°, 30° and 31°.
Article 29, number 1 of this Law recognized that the family, as the core of the organization

of society, should receive special protection from the State, whether it aims at
marriage wants in common law.

The State is assigned the obligation to allow its citizens a life

The law expressly guarantees the equality of rights between man and
the woman, granting them the same rights and duties within the family—art. 29.
No. 2. The family, in collaboration with the State, has been assigned the obligation to protect and

educating children and young people - art. 29, no. 3. Art. 30 granted the child absolute
priority was given and the guarantee of its protection by the family, by the State and by the
society. Article 31 established the right of young people to the realization of their rights.
economic, social and cultural, to be promoted by the State, the family and by itself
society.
The current Constitution in its article 35 refers to family, marriage, and filiation.
Article 80 pertains to childhood and Article 81 pertains to youth, as we will have the opportunity to see in due course.

from two different institutes.

 The family is consecrated as the "fundamental nucleus of society and is the object of

special, state protection wants to merge in marriage or in common-law union (...)

and "everyone has the right to freely establish a family (...)"—art. 35, nos. 1 and 2.
The Constitution assigns 'absolute priority to the protection of children's rights.
namely to his comprehensive and harmonious education, to the protection of health, of conditions

of life and education."—art. 35, n. 6, by the family, by the State, and by society.
The right to family life, that is, the right for the child to be integrated into the family.

from its birth, it is consecrated as a fundamental right.

These principles, enshrined as norms of constitutional law, compel the
ordinary legislator, which means that the family code must confirm and
develop those constitutional principles. The norms that govern the right to
family is structurally linked to the fundamental rights of the human person and
as such constitute the cornerstone of citizens' rights in general. They are, therefore,
protected either by constitutional law or by international conventions.
It is considered a fundamental right of every human being, the right to
to form a family, whether in the form of marriage or simply in a stable union,
free and conscious form, and the right to develop it within the family.
personality and its capabilities.

International Law and Family Law

International organizations, with special relevance to the Organization of
United Nations have decisively contributed in recent decades to the
transformation of the guiding principles of family law towards a greater
the consecration of human rights and the elevation of its dignity, promoting
greater social justice.
This new conception of family law is itself intrinsically linked
to the fundamental principles of the right to freedom and the right to equality inherent to
human person and that reverberate within the family structure, postponing structures
relatives that were translated into deeply discriminatory situations among the
family members. It was decided from the outset to prioritize the rights that assist in
human being as such, regarding the rights of certain family members that apply
about the members of your family group.
The United Nations Charter proclaimed, in its Preamble, the faith in rights
humans and the equality of rights between men and women, as a universal principle.
In turn, the great charter of human rights, the Universal Declaration of
Human Rights, approved by the General Assembly of the United Nations
on December 10, 1948, establishes, in relation to the family (art. 16):
1. From the age of marriageable capacity, men and women have the right to marry and
to form a family... They have equal rights regarding marriage, during it and in case of
its dissolution.
2.0 marriage cannot be celebrated without the free and full consent of
future spouses.
3. The family is the natural and fundamental element of society, and has the right to
protection of this and of the State.

This norm not only enshrines the fundamental right to form a family but also imposes
as a rule, the equality of rights and duties of men and women in marriage is
who opposes forced marriage, very common in traditional societies,
celebrated at the early ages of the future spouses and imposed without or against their will
two betrothed, which is arranged between the families, sealing the couple's future and generally
preventing the young woman from continuing her educational and professional training,
reducing it forever to a state of dependence.
The International Covenant on Economic, Social and Cultural Rights,
approved by the United Nations on December 16, 1996, recognizes in its art. 10.
what:
1. A broader protection and assistance possible will be provided
to the family, which is the natural and fundamental core of society, particularly with a view
in her training and during the time she is responsible for creating and educating the
Children. The marriage must be freely consented to by the future spouses.
A special protection should be given to mothers for a reasonable time before
and after the birth of the children (...)
 3. Special protection and assistance measures must be taken in
benefit of all children and adolescents, without any discrimination derived from
reasons for paternity or others (...).
In addition to the support that states must provide to the family and reaffirming the right to

freedom to marry, this article enshrines the duty of the State to protect education of
children, without discrimination based on birth and to protect the woman during the
pregnancy.
The International Covenant on Civil and Political Rights, also adopted
on December 16, 1966 in its article 23, in addition to reaffirming the important
well-established principles provide:
1. The family is the natural and fundamental element of society and has the right to
protection of society and the State.

The right to marry and found a family is recognized for both men and women.
from the age of consent.
No marriage can be concluded without the free and full consent of
future spouses.
4. (...) equality of rights and responsibilities of spouses in relation to the
marriage, during the duration of the marriage and at the time of its dissolution. In case
of dissolution, provisions will be taken to ensure the protection of the children
necessary.
They are rules whose importance cannot be overstated and that pertain to the
structuring family institutes that we will study ahead.
The Convention on the Elimination of All Forms of Discrimination
Woman, approved by the United Nations on December 18, 1979, which Angola
adhered to Resolution No. 15/84 of the People's Assembly, enshrines its Article 16.
specifically to family law in the following way, ensuring:
1. (...) based on the equality of men and women:
0 the same right to contract marriage.
(...) only enter into marriage of free and full will.
 c) The same rights and responsibilities during the marriage and
when of
dissolution of marriage, and (...)
d) (...) as parents, regardless of their marital status, to (decide) the issues
relating to your children, and (...)
... decide freely and with full knowledge of the circumstances, the number and of the
spacing of births.
(The same rights) in matters of guardianship, curatorship, custody, and adoption of
children (...)
g) The same personal rights for the husband and wife, including those concerning
choice
of the family name, of a profession and of an occupation.
This Convention establishes the various forms that it takes
discrimination against women and by focusing on relationships within the family, it imposes
that they be combated and made illegal in the various legal systems and for that
imposes new mandatory principles and rules.
The African Charter on Human and Peoples' Rights, approved by
Organization of the African Unity in 1981 and ratified by the Assembly Resolution
The People No. 1/91 dedicates its article 18 to the family.
ARTICLE 18.
The family is the natural element and the foundation of society.

2. (...) assist the family in its mission as a guardian of morals and values.
traditional (...)
3. (...) ensure the elimination of all discrimination against women and of
to ensure to
protection of children's rights (...)
The cultural value of the family is enhanced without prejudice to the obligations of the States.

put an end to all forms of discrimination against women and to protect them
children's rights.
 The International Convention on the Rights of the Child, approved by the Nations
United on November 20, 1989, and ratified by Resolution No. 20/90 of the Assembly
of the People, reserves its articles 7, 8, and 9, to the right of every child to citizenship
and to family relations, imposing the following:
Article 7.
1. The child is registered immediately after birth and has since the
birth, the right to a name, the right to a nationality and whenever possible,
the right to know your parents.
Article 8.
(...) the right to preserve one's identity including nationality, name
and family relationships (...)
Art. 9.
(...) to ensure that the child is not separated from their parents against their will.
(...) without prejudice to a judicial decision.

The African Charter on the Rights and Welfare of the Child approved in 1990 and
ratified by Angola in April 1992, determines the following:
Art. 18.
The family is the natural basis of society (...)
2. (...) (they) will take appropriate measures to ensure equality of rights and
responsibilities of spouses towards children during marriage and
during its dissolution (...)
No child shall be deprived of means for their maintenance due to
of your parents' marriage statute.
Article 19.
Every child has the right to parental protection and care.
possible to reside with them (...) unless the judicial authority decides (...) that this
separation is in the child's best interest.
Any child separated from one or both parents has the right to maintain
regularly personal relationships and direct contacts with both parents.
 At the level of the regional organization Community for the Development of Countries
from Southern Africa (SADC) of which Angola is a member, was adopted on August 17
approved by Resolution No. 30/10 of September 6 by the National Assembly in 2008,
Protocol on Gender and Development that contains regulations on Marriage and
Rights of Widowhood of Women and Men
And Children of the Female and Male Sex (article 11).
Article 8.
MARRIAGE AND FAMILY RIGHTS
1. The State Parties shall enact and adopt legislative measures,
administrative and other appropriate measures to ensure that women and men enjoy
of equal rights in marriage and be considered equal partners in marriage.
2. The legislation on marriage must ensure that:
a) no person under the age of 18 may enter into marriage, except
contrary disposition expressly stated in the law, always attending to the best interest and well-being

the child's state.

b) all marriages should be celebrated with the free and full consent of
both parties.
c) all marriages, including civil, religious, and traditional, have a
deed drawn up in accordance with national laws.
d) as long as their marriage lasts, the parties have reciprocal rights and duties.
for your children, always in their supreme interest.
3. The State Parties shall decree and adopt legislative measures and other measures.
appropriate measures to ensure that spouses, in case of separation, divorce or
annulment of your marriage:
a) have mutual rights and duties towards their children, always in
superior interest of these;
b) subject to the choice of any marital regime or contract, they have a
equitable portion of any property acquired during your relationship.
4. The States Parties shall adopt legislative and other measures aimed at
ensure that mothers and fathers honor their duty to care for their children and be
applied decisions in matters of alimony obligation.
 5. The State Parties must establish legal provisions to ensure that
married women and men have the right to choose to maintain their
nationality or by acquiring the nationality of their spouse.
This is a very up-to-date content matter that is aimed at cspeci-
effectively against social situations at the level of family relationships in these countries of
Southern Africa remains and is frankly attentive to the structuring principles.
of human rights.

ARTICLE 10.
WIDOW'S RIGHTS OF WOMEN AND MEN
1. The States Parties shall enact legislation and enforce it in order to
ensure that:
a) that widows are not subjected to inhuman or humiliating treatment
degrading;
b) unless otherwise ordered by a competent court, the widow shall take
automatically responsible for the education of your children and have custody of
even in the case of the husband's death;
c) the widow has the right to live in the marital home after the husband's death
d) the widow has access to employment and other opportunities so that she can provide
a significant contribution to society;
e) the widow shall have a rightful share in her husband's inheritance;
f) the widow has the right to marry anyone else
choice; and
g) the widow is protected against all forms of violence and discrimination
due to
from your condition.

2. The States Parties shall adopt legislative measures to ensure that the
Widowers enjoy the same rights as widows under paragraph 1 of this article.
 ARTICLE 11.
CHILDREN OF THE FEMALE AND MALE SEX
1. The States Parties must adopt laws, policies, and programs to ensure the
development and protection of girls:
a) eliminating all forms of discrimination against girls at the level of
family, from the community, from state institutions;
b) ensuring that girls have equal access to education and care
health and not be subjected to any treatment that makes them develop a self-
-negative image;
c) ensuring that girls enjoy the same rights as boys and
be protected from harmful cultural attitudes and practices, in accordance with the
United Nations Convention on the Rights of the Child and the African Charter on the
Children's Rights and Well-Being;
d) protecting girls from economic exploitation, human trafficking
and of all forms of violence, including sexual abuse;

e) ensuring that girls have access to information, education, and

services with facilities in the area of health and sexual and reproductive rights.
2. The States Parties shall adopt legislative and other measures to ensure
that boys enjoy the same rights as girls under the terms of paragraph 1 of
present article.
Moreover, by virtue of the provision enshrined in Article 26, No. 2 of the Constitution...

Constitutional principles and those related to fundamental and legal rights must be
interpreted and integrated" according to the principles we referred to.
It is important to note that under the provisions of Article 21, paragraph 3, of the Constitutional Law, if

They considered the principles of the instruments as valid in the internal legal order.
international agreements of which Angola was a part "even if they are not invoked by the parties."
Nowadays, this principle is reproduced in Article 26, paragraph 3, of the Constitution,
that in matters of fundamental rights it mandates the application of 'international instruments
even if they are not invoked by the parties.
 Of special relevance is the issue of guaranteeing fundamental rights.
of human beings already consecrated in these instruments, cannot be postponed or
affected by means of other values that do not correspond to them, namely
for practices of customary law that come from a society marked by hegemony
masculine, are contrary to women's human rights and are reflected in
global development of a country.
By the way, the right to equality of rights for all human beings, and therefore the right to non-

discrimination, whatever the reason may be, beyond the repercussions it has on the rights of all

nature is also invoked by homosexuals as a basis for

legal recognition of your unions, claiming that they cannot be the subject of
discrimination "on the grounds of sexual orientation".
Bilateral agreement on Family Law
In family law, Angola has not yet celebrated
agreements neither of a bilateral, regional, or international scope, notwithstanding the fact that

there will be multiple family ties between Angolan citizens and those of other nationalities.
The only exception was the Agreement on Legal and Judicial Cooperation between
Angola and Portugal celebrated on August 30, 1995, which focuses on the
Recognition and Enforcement of Decisions Relating to Alimony Obligations
we will refer to the purpose of the food institute.
However, international agreements have already been established at the level of SADC and CPLP.

in the area of criminal law and criminal procedure.

By Resolution No. 27/10 of September 6, the Convention on was ratified

transfer of condemned persons; by Resolution No. 28/10 of the same
(2 Maria do Carmo Medina. "Human Rights and Family Law". Journal
from the Faculty of Law of Agostinho Neto University, no. 4, p. 127.

data was ratified the Convention on Extradition and the creation of a Network of
International Legal and Judicial Cooperation among Member States. All these
Agreements had been signed by the CPLP States in the city of Praia, Cape Verde.
Green, in November 2005.
 Private International Law in Family Law
The significant increase in family relations among citizens of various countries
not only within the various continents but at a global level, has made it urgent
that the involved states establish legal norms that protect their citizens and
establish rules of procedure.
In the field of private international law and in the unification of norms
family law of the different States has been greatly developed.
effort towards resolving the conflict of laws and creating common standards of
family law.
States understand that it is increasingly necessary to regulate in a way
harmonious family relationships that are established between citizens of different nationalities

different.
The main work in this field has been developed by the Conference
Hague diplomacy, which led to the adoption of important conventions in
family law subject.
We can cite, among others, the Convention on Recognition and
Execution of Decisions on Alimentary Obligations and the Convention on Law
Applicable to Alimentary Obligations, both from 1973, the Convention on the
Recognition of Divorces and Separations of People, approved in 1970,
Convention on Matrimonial Regimes and the Convention on Celebration
Recognition of the Validity of Marriage, both from 1978.
We will have the opportunity to refer to two important conventions in this regard.
of the study of parental authority and adoption.
We indicate from the start how far-reaching the approval was internationally.
Convention on the Civil Aspects of International Child Abduction, (1980). This
The convention deals with the international abduction of minors, that is, with kidnapping.
of minors who are removed from their usual place of residence where they are under the care of
natural or legal person, who exercised a legitimate right of custody over them and are
taken out of the country against their will. The same convention also applies
when the minor is not returned to their usual place of residence after leaving the
country for the holder of the visitation right to have it in their company. It has special
incidence in increasingly frequent cases,
of mixed couples, from different nationalities, who after separation dispute
among themselves the custody of children born from their union. The authorities of the States party to this

Cooperation among themselves in the sense of an immediate communication of the illicit transfer.

of the minor or its unlawful retention, so that it can be returned to its place of
residence is given to the person who legitimately has your custody. This Convention
has been very successful in its practical application and seeks to put an end to situations

dramatic abrupt separation of minors from their normal family environment.

The Convention on the Protection of the Child and Cooperation in respect of Adoption
International (1993) has similarly had great relevance in the matter of adoption.
international, for the administrative and judicial protection of the child who is taken abroad
from your country of origin to the adoptive country and equally to prevent adoption
hide an underlying financial deal, or facilitate international child trafficking.
Angola is not a member of this international organization but has joined it.
Convention for Resolution No. 54/12 of December 14, 2012 of the (D.R. of
National Assembly No. 239), which have proven to be highly effective
practice in delicate family matters.
At the European level, the Luxembourg Convention on the
Recognition and Enforcement of Decisions Relating to Child Custody
and its Reestablishment" (1980) and the Rome Convention on "Obligations
Food" (1990). On May 28, 1998, the European Convention was signed
Family Law that binds the countries that are part of the European Union. In
In September 2001, the European Family Law Commission was established, whose
wider works aim at the formulation of a common right for the various
countries of this continent.
Also at the level of the Organization of American States, measures have been adopted.

various conventions on human rights and family law, such as the

Inter-American Convention on Food Obligations, approved in Montevideo
in 1989, and the "Inter-American Convention on the International Return of Minors",
that bring far-reaching measures regarding the alimony obligation due to
minors and about the exercise of parental authority in the case of their respective holders
live in different states.
We are not aware that, under the aegis of the Organization of Unity
Africana, any convention on family law has been approved.
Except for the above-mentioned Bilateral Agreement, which pertains to the very limited matter of
obligation of alimony, as it does not even encompass the right of custody of the children and weighs

although the existence of family ties with countries

like Portugal, Cape Verde, S. Tomé and Príncipe members of the Community of
Countries of the Portuguese Language (CPLP), no common convention was adopted to
these states in family law matters.
Likewise at the level of the Southern African Development Community (SADC) countries
neighbors among whose nationals family ties are created, still has not been obtained.
any international instrument for the resolution of the issues that arise in these
relations among the citizens of different States in the region, which, given its
narrowing is becoming increasingly necessary.
 CHAPTER 3.0
SOURCES OF ANGOLAN FAMILY LAW
[12] Colonial law. The duality of statutes: the indigenous and the citizen of
full right. Written law and customary law
The structure of colonial society in the field of family law established the
principle of the difference in legal statuses: on one side, the status of citizens of
full rights (which were the colonizers and scarce 'assimilated'); on the other hand, the
statute of the so-called "indigenous"(l). The law provided, moreover, for each colony a
statute "especially promulgated for each of them". The so-called "indigenous"
were defined as 'individuals of black race or their descendants who had
born or lived habitually in them, that is, in Guinea, in Angola or in
Mozambique, which was in a situation of true legal guardianship.
A dual legal system was thus applied, as the first ones, the citizens of
full rights, were subject to the norms of written private law concerning the
family law, while the latter, the indigenous people, were governed by the law
costumer, although limited by the fundamental principles of the system
current judiciary. The truth, however, is that during the colonial period the principles of

Current public order primarily concerned the protection of interests

political and economic structures of the colonizer and, as far as family structures are concerned,

I collided with those interests, they were kept intact, just as happened with the
polygamy, or marriage without the woman's consent, etc..
The first Civil Code, known as the Seabra Code, published in 1867
the extensive tornado to the colonies in 1869, already ordered, in relation to Angola, to reserve
the uses and customs of the mayorships, in addition to ordering the temporary application of legislation

special.
Abolished the shameful system of indigenato in 1961, a result, in fact, of the outbreak
In the armed struggle for national liberation, however, the duality of statutes was maintained.
of personal law, which came to be designated as the Statute of Written Law and
Statute of Local Customs and Practices.
The now designated "neighbours of regencies" continued to be applied.
the local usages and customs with the already mentioned limitations, but it allowed for everyone to
individual make an irrevocable declaration before the registration and identification services of
that was subject to the written law of private law.

For its part, the written private law, as it was designated, was also being
changed, and in 1910, with the proclamation of the Republic, important were introduced
reforms to the 19th century Civil Code.
The Divorce Law, of November 3, 1910, allowed for the dissolution of
marriage by divorce, both in the form of contentious divorce and in the form of
divorce by mutual consent. Law No. 1, dated December 25, 1910, addresses
of marriage, conferring validity solely to civil marriage. Law No. 2, of 25
December 1910 (Children's Protection Law) deals with the right of affiliation.
Meanwhile, a Concordat was celebrated between Portugal and the Holy See (May of
1940), which brought important changes in family law,
specifically regarding the validity of the canonical marriage, the renunciation of the right to

divorce and the attribution of knowledge of the causes related to the nullity of marriage
catholic to ecclesiastical courts.
The Concordat only came into effect in the former colonies about six years later,
by Decree No. 35,461, of January 22, 1946, but with various adaptations/
The second Portuguese Civil Code, approved by Decree-Law No. 47 344,
came into force in the former colonies by virtue of Ordinance No. 22,869, starting from 1 of
January 1968. Its Title IV is dedicated exclusively to family law and it
they reflect the retrograde conceptions of family legal relations, whether in the field
the marital relationships (in which the husband's marital power over the
woman, the exclusive power of this as the administrator of the couple's assets), whether in the field

the relations of filiation, distinguishing legitimate children from illegitimate ones (with

important restrictions for the latter in the field of personal and inheritance rights
and assigning to the father, in father-child relations, prevailing powers, appearing in the
mother as a mere advisor
All this matter was profoundly restructured in Portugal after the 25th of
April, with the publication of Decree-Law No. 496/77, a result of political transformations and
economic operations in that country, which departed from the previous principles
discriminatory. In fact, Portuguese law has undergone constant changes,
modernizing in its concepts and procedures, with profound changes
specifically in matters of family law.

The Angolan Positive Law after National Independence

With the proclamation of national Independence and the approval of the first Law
Constitutional, a new legal system was established and the norms of a character
discriminatory provisions contained in the Civil Code came to be considered repealed by
unconstitutional.
Moreover, by virtue of what is provided in Article 84 of this Law, which guided regarding the

current legislation coming from the colonial legal system had to be understood as
all legislation that contradicted the Angolan revolutionary process has been revoked.

However, in the field of family law, a series of laws have been published.
the relevant importance that, in fundamental matters, came to alter the legislation
colonial in what was most antagonistic to the new Angolan reality.
The following items were approved successively:
1—Law No. 53/76, of July 2, which removed the application of the norms of
Concordat allowing the dissolution of Catholic marriages celebrated in Angola
or among Angolans; authorized the conversion of the separation of people and assets into divorce

and added new grounds to the divorce petition.

Law No. 10/77, of April 9, which equalized the rights and duties of all
children in relation to their parents, regardless of their marital status, prohibited any
reference to the quality of legitimate or illegitimate child and proclaimed the abolition of the term

"incognito" regarding the situation of paternity or maternity. It also contained

rules regarding the composition of the name and civil registration of citizens.

3—Law No. 9/78, of May 26, with the respective corrections published in
July 29, 1978, which dealt with divorce by mutual consent and revoked
Articles 1786 to 1788 of the Civil Code and Articles 1419 to 1424 of the Code of
Civil Process.
 Law No. 7/80, of August 27 (Law on Adoption and Placement of Minors), which
repealed all of Title IV of Book IV of the Civil Code (arts. 1973 to 2003)
regarding the subject of adoption.
Law No. 10/85 of October 10, on the composition of the name, which amended
the article 1 of Law No. 10/77.
Law No. 11/85, of October 28, which approved the Marriage Act
that granted validity solely to marriages celebrated before the bodies of
civil registry. According to the rigor of the law, canonical marriages ceased to have validity only at

from the publication of this law, but it had been a practice for years not to be celebrated
canonical marriages without the prior celebration of civil marriage. It also contained
rules regarding the marriage process, simplifying them, and revoked several articles of the
Civil Code.
7—Decree No. 14/86 of August 2 (Official Gazette, No. 61), which came
regulate Law No. 10/85 which approved the Marriage Act Regulation,
revoking several provisions of the Civil Registry Code. This Decree continues
still in force, even after the publication of the Family Code, which brought some
amendments to Law No. 11/85, which needs to be properly adapted.
It should also be taken into account that some remain partially in force.
diplomas coming from the colonial legal system, which were not expressly
revoked.
They are the following:
The Civil Registry Code, approved after the reforms introduced by the Code
Civil was published by Decree-Law No. 47,678, of May 5, 1967, and was taken
extensive to the former colonies by Ordinance No. 23 101 (Official Bulletin of 30-12-1967,7.)
supplement). This ordinance indicated that the code would operate as a subsidiary law,
until a law on civil registration was published, which, however, never came to
to happen.
After Independence, some civil registration regulations were published.
diplomas aimed at facilitating the practice of certain acts of civil registration, with the most
relevant Decree No. 91/81, of November 25, on the registration of Angolans born
abroad and about the justification of death.
 0 Statute of Jurisdictional Assistance to Minors, approved by Decree No.
417/71, of September 29, which defined the jurisdiction of minors in the domain of
criminal prevention and the civil measures applicable in the context of family law,
was deeply altered by the publication of the Family Code and partially
revoked by the Code of Procedure for Juvenile Cases approved by Decree No.
6/03 of January 28 states in its article 86: "The Decree No. 417/71 is revoked"
from September 21, except for the provisions regarding civil proceedings that
are still in force (...)". This diploma also contains provisions in force regarding
of the process related to the law of parent-child relations.
More recently, Decree No. 31/07 of May 14 was published.
we will refer to it later.
Historical background of the new Family Code, its systematics
a) Historical Background
The People's Assembly was institutionalized in 1980 and shortly after its first
this supreme body of state power recognized the imperative necessity
to proceed with a thorough review of family law, despite the
difficulties that such a task represented for a country with limited technical resources
legal.
Thus arose the Resolution of the People's Assembly No. 2/82, of February 12,
to decide to initiate proceedings:

1—The collection of materials on marriage, parenthood, divorce, the

successions and others for the understanding of customary law at the national level
they must be sent to the Faculty of Legal and Administrative Sciences.
Law No. 53/76, of July 2, which removed the application of the rules of
Concordat, allowing for the dissolution of Catholic marriages celebrated in Angola
or among Angolans; authorized the conversion of the separation of persons and property into divorce

and added new grounds to the divorce petition.

Law no. 10/77, of April 9, which equalized the rights and duties of all
children in relation to their parents, whatever their marital status, prohibited any
reference to the quality of legitimate or illegitimate child and decreed the abolition of the term
"incognito" regarding the situation of fatherhood or motherhood. It also contained
rules regarding the composition of the name and civil registration of citizens.

3—Law No. 9/78, of May 26, with the respective amendments published in
July 29, 1978, which dealt with divorce by mutual consent and repealed
Articles 1786 to 1788 of the Civil Code and Articles 1419 to 1424 of the Code of
Civil Procedure.
4—Law No. 7/80, of August 27 (Law on Adoption and Placement of Minors), which
revoked all of Title IV of Book IV of the Civil Code (arts. 1973 to 2003)
regarding the matter of adoption.
Law No. 10/85, of October 10, on the composition of the name, which amended
Article 1 of Law No. 10/77.
Law No. 11/85, of October 28, which approved the Marriage Act
that granted validity exclusively to marriages celebrated before the authorities of
civil registry. According to the law, canonical marriages only ceased to be valid when
from the publication of this law, but it had been a practice for years not to be celebrated
canonical marriages without the prior celebration of the civil marriage. It also contained
rules regarding the marriage process, simplifying them, and revoked several articles of the
Civil Code.
7—Decree No. 14/86 of August 2 (State Gazette, No. 61), which came
regulate Law No. 10/85 which approved the Marriage Act Regulation,
revoking various provisions of the Civil Registry Code. This Decree continues
still in effect, even after the publication of the Family Code, which brought some
amendments to Law no. 11/85, which needs to be properly adapted.
It should also be noted that some remain partially in force.
diplomas coming from the colonial legal system, which were not expressly
revoked.
They are as follows:
The Civil Registry Code, approved after the reforms introduced by the Code
Civil was published by Decree-Law No. 47,678, of May 5, 1967, and was made
extensive to the former colonies by Order No. 23 101 (Official Bulletin of 30-12-1967, 7th
supplement). This ordinance indicated that the code would be in force as a subsidiary law,
until a specific civil registry law was published, which, however, never came to
happen.
After Independence, some civil registration matters were published.
diplomas aimed at facilitating the practice of certain civil registration acts, with the most
relevant decree no. 91/81, of November 25, regarding the registration of Angolans born
abroad and regarding the justification of death.
0 Statute of Juridical Assistance to Minors, approved by Decree no.
417/71, of September 29, which defined the jurisdiction of minors in the domain of
criminal prevention and the civil measures applicable in the context of family law,
was profoundly altered by the publication of the Family Code and partially
revoked by the Code of Procedure for Minors approved by Decree No.
6/03 of January 28 that in its art. 86 states: 'The Decree No. 417/71 is revoked.'
from September 21, except as to the provisions

regarding civil processes that are still in force (...)". This diploma
it still includes current regulations concerning the process related to the law of relations
fatherly branches.
More recently, Decree No. 31/07 of May 14 was published.
we will refer.

Historical background of the new Family Code, its systematics

a) Historical Background
The People's Assembly was institutionalized in 1980 and soon in its first
the works of this supreme organ of state power recognized the imperative need
to proceed with a thorough review on family law matters, despite the
difficulties that such a task represented for a country with limited technical resources
legal.
Thus arose Resolution of the People's Assembly No. 2/82, of February 12,
who decided to take action:
2—On the drafting of bills regarding affiliation and the marriage process.
 3—On the drafting of legislation regarding divorce (to be granted when the
marriage has lost its meaning) and about de facto unions.
4—The drafting of new laws that would repeal the legislation that, in the domain of
family law, was discriminatory against women.
Meanwhile, in the following year, by Resolution No. 1/83, of March 18,
The People's Assembly concluded that "from the presented works, it can be noted that
the defined co-payment is not the most desirable, not only because it prevents a view of
set but also because (...) it would make its application more difficult" and, consequently,
it was decided that by the end of the 1st quarter of 1983 a comprehensive draft law would be prepared

of Family.
This work was effectively carried out and the Family Code project, later
properly prepared, was appreciated within the scope of the Committee on Affairs
Constitutional and Legal of the People's Assembly.
The formulation of a new Family Code was justified by several reasons.
On one hand, he came to integrate in a single diploma the set of norms of this field.
of law, with all the benefits that derive from the codification of laws.
He also brought the systematization, clarity, and accessibility of the legal text to
common citizen, which constitutes a characteristic of law inspired by socialism.
Note that this is not about the encoding of existing legal norms, of a
simple compilation of previous laws, but before the formulation of a new law
based on new principles, oriented towards a creative vision of new rules
conduct that, in turn, will exert a determining influence on the social environment.

As expressed in the Preamble of the Family Code, an effort was made, through
to contribute to a new family relationship free from oppression and
discrimination. He aimed to establish a new type of relationships within the family group,
oriented towards solidarity and mutual assistance among its members
and, simultaneously, in respect for the individuality and personal dignity of each one
theirs.
 The Code also has an eminently political function, in the sense of
standardization of the legal treatment of social relations, now addressed in a
unitary for all citizens of the country.
Once the Family Code Bill was drafted, it was presented to
People's Assembly session that took place in June 1984 and, due to
of the importance of this diploma in the lives of citizens, it was then decided that the
even if it were submitted to popular consultation, within the scope of the legal provision contained in article.

45.° of the respective Regulation.

The public consultation took place across the country, with the project being discussed
in the various Committees of the People's Assembly, of Constitutional Affairs and
Legal, Education, Science and Culture, in the Provincial People's Assemblies, in
structures of the party organization, in mass organizations such as the Oma and the Unta
and in social organizations such as UEA (Union of Angolan Writers), the AEES
(Association of Higher Education Students) and others.
It was the same announced through the print media, radio, and television.
This wide discussion resulted in the proposal of several changes,
specifically regarding matters relating to the promise of marriage, the age of marriage, to the
impediments to marriage, urgent marriage, to the economic effects of
marriage, the vices of marriage and alimony. Upon completion of the reformulation, it was
So a comprehensive Report was prepared that accompanied the final version of the Project
submitted for final consideration by the People's Assembly.
It is stated in the final report: "none of the discussions were called into question
the fundamental principles that govern the project. On the contrary, there are several
reports that welcome the drafting of the project, which allows for the adaptation of family law
to the political principles that govern our revolutionary process, safeguarding the
concrete realities of our country.
The very Commission that drafted the Project proposed certain changes and the
introduction of new articles in the direction of a better organization of the subjects and their

enrichment.
The newly reformulated project was presented, and it was discussed in the
Session of the People's Assembly that took place from August 12 to 14, 1987.
 The work of the Assembly resulted in some minor modifications.
The Family Code was enacted on October 27, 1987, and published on
February 20, 1988, having been approved by Law No. 1/88, to come into effect on
date of its publication (art.

More than 20 years since its approval have passed, it is acknowledged that
it becomes necessary for your adaptation to the new concepts that are being created about the

family law, which is rapidly unfolding around the world.

b) Systematics of the Family Code
Law No. 1/88, which approves the Family Code, contains rules of a nature
transitory and other procedural nature.
It is advisable to pay attention to the content of the Preamble, as it outlines some key guidelines.

that underpin the new family law institutions: "The new code is part of
combat of all progressive humanity against obscurantism (...) and must
to understand oneself as a real means of political, economic, and social emancipation of

Angolan workers
In fact, the new code embraced the legal-social principles then.
enshrined in the family law of progressive countries, adapting them to our
reality.
In the Preamble, its guiding lines are stated, such as protection
of all the children born or not from the marriage of the parents; the fair distribution of tasks
and responsibilities within the family; the equality of man and woman in all
family relationships; the abolition of the validity of canonical marriage; the new concept of
marriage with greater relevance to your personal aspects than to the
heritage; the possibility of legalizing de facto unions; the new conception of
dissolution of marriage by divorce; the guarantee of the right to establish the
affiliation; the simplification of the guardianship mechanisms; the strengthening of the obligation of

alimony, especially when intended for minors, etc.

Law No. 1/88 also contains rules regarding its application over time (art. 3°);
on the counting of substantive deadlines (art. 4.°); on the granting of a
new deadline for filing the action to challenge the paternity of the mother’s husband
(art. 5.)
Articles 6 and 7 contain rules of a procedural nature that are of great interest.
practical, as they require applying the process form to all actions of a family nature
special voluntary jurisdiction of art. 1409 of the Code of Civil Procedure, which, by
your turn, refers to the procedural rules of articles 302 to 304, concerning the
incidents of the instance. Article 7 grants the judge broad power of procedural intervention,
changing the position of the judge from a merely dispositive position to a
intervention position in the collection of evidence. The court's scope will be to obtain the
discovery of the material truth, in order to be able to decide the object of the dispute in a way
fair and in accordance with the reality of the facts.

Such a position is understood when considering that in family law there are
plays not only personal interests but also social interests. These changes
are only applicable in the background, as the Family Code itself includes
procedural nature rules in various of its Titles.
On the other hand, there was an expectation that reforms to the law would be implemented.

current civil procedure, in order to simplify it and make it more consistent with the
our reality and also with the demands for speed of the modern world, which
unfortunately, it has not happened so far.
This route was temporarily adopted to allow for greater intervention by the judge in
unroll the process, trying to make it less formal.
Article 8.° transposes the content that was stated in articles 3, 4, and
Article 5 of Law No. 53/76 on the request for conversion of separation into divorce
and goods, norms that were maintained with a temporary character, for the hypothesis, little
likely, that some interested party has not exercised that right since the date
from the publication of the law.

Article 9 confirms the mandatory registration of all acts.

mentioned in the relevant diplomas, namely in the Civil Registration Code.
The acts subject to mandatory registration are listed in article 1 of the aforementioned Code.
the publication of the Family Code made it necessary to adapt the registration rules
civil to the new diploma, with special relevance to issues such as common-law marriage,
affiliation, adoption, and others.

And although a project on this matter was drafted in 1993, the fact is
that it has not been published, as the adaptation of the Regulation has not yet been.
The Marriage Act to the norms of the Family Code.
Later, we will see the importance of civil registration norms and how they are
reflect on the proof of the legal status of individuals.
Article 10 refers to the tacit revocation of the previous legislation with content
contrary to the new law and also to the express repeal of other legal texts, in
special provisions of the Civil Code, as well as the various laws published after the
National Independence.
The content of these latest laws was, in fact, essentially integrated into the various
titles of the new Family Code being part of their respective institutes.
Article 86 of Book I on domicile has been revoked from the current Civil Code.
legal of the married woman, articles 143, 144, and 146 on guardianship, and the entirety of the Book
IV on family law.
The new rules contained in the Code make it urgent to change
other branches of law. The norms of succession law need to be adapted
to the new concepts contained in the Family Code, namely that of unity of
the concept of affiliation, that of adoption as a form of kinship, the succession rights in
common-law relationship, etc.

The Civil Code also contains norms with openly discriminatory content.
both in the general part (the conflict rules in private international law in which
the personal law of the husband prevails), as in the Book of Successions, rules that, although

revoked for being unconstitutional, must be banned from

code.
The Family Code is divided into eight Titles:—Fundamental Principles

Constitution of the family

Marriage
Common-law marriage
 Parent-child relationships
Adoption
Guardianship

Food
The content of the 8 titles is, in summary, as follows:
Title I contains the fundamental principles that guide the entire legal document.
Title II has 3 chapters: the general provisions on the sources of relations
family legal relations, or kinship by blood ties, or affinity and counsel
of family.
Title III, which is the longest, consists of 5 chapters: the chapter on provisions
general, which includes the concept of marriage, the ineffectiveness of the marriage promise, the

marital capacity; the celebration of marriage; the effects of marriage; the

the annulment of marriage and the dissolution of marriage.
Title IV refers to de facto union and has 3 chapters: the chapter on general provisions
with the concept of common-law marriage and its legal presuppositions, the recognition by
mutual agreement with the acknowledgment in case of death or rupture.
Title V has 3 chapters: the first about the rights and duties between parents and
children; the second on the exercise of parental authority and the third on the
establishment of affiliation.
Title VI opens with the chapter that contains the general principles of adoption, coming
then what contains the forms of adoption and what refers to the adoption process.
Title VII contains 4 chapters: the one that contains the general provisions and refers to
to the subjects and purposes of the guardianship; that of the establishment of the guardianship; that of the exercise of the guardianship and that of

term of guardianship.

Title VIII, concerning alimony, defines in its chapter I the respective

concept and the active and passive subjects of the alimentary obligation, the form of their

performance, its nature and the cessation of the obligation; chapter II refers to
obligation of alimony in case of marriage and common-law union.
Fundamental principles of the Family Code and its generic concepts a)
Fundamental principles of the Family Code
 Title I, 'Of the fundamental principles', contains rules that, for their scope
the normative importance, if they can be compared to true norms of a nature
constitutional.
The basic principles stated in this Title I will serve as a framework and guide.
all other norms contained in the Code.
We can summarize them in the following way:
1) Special obligation of the State to protect the family, due to its importance
as a fundamental nucleus of the organization of society, promoting the right to
instruction, to work, to rest and to social security.
2) Special obligation of the family to promote cultural and moral education of
all its members within the principles of love for work and loyalty to the homeland
and especially that of young people, in order to promote their integration into society.

The right of each family member to the development of their personality

and skills in the interest of the new society.
4) The equality of men and women in all legal family relations.
5) The equality of all children before the State and the special obligation
from your

protection, both by the family and by the State.

The creation of a new moral in family relations, structured on equality
of rights, in respect of the personality of its members and in the principle of
reciprocal solidarity.
Through the realization of these principles, an transformation is sought.
in the family structure, in order to ensure that, at the level of their internal relationships, they

establish a more fair and favorable reciprocal interdependence for the members
that make it up.
b) Generic concepts of the Family Code
The Family Code resorts to various generic concepts or concepts of
indeterminate legal content, which doctrine classifies as true norms
in blank whose limits are not precisely defined and whose filling will have to
to be found, in each specific case, by the interpreter or by the judge.
 The entity or the agent responsible for the application of the law must resort to
supra-legal ideas, such as the concepts of good faith and bad faith, to decide on issues
as important as the effects of the annulled marriage (cf. art. 72 of the Code of
Family). In the foundation of the request for contentious divorce, it is mentioned that it should be

invoked serious or lasting cause (art. 97) that compromises the common life of the
spouses. In matters concerning the situation of minors, such as that of
parental rights and duties, it is mentioned that they should be exercised in the interest of
in the interest of the children and society (art. 127, no. 2). In decisions regarding the exercise
of parental authority, the court must always take into account the benefit and interest
of the minor and their proper integration into social life (art. 160). In the legal requirements

for the adopter, taxes in Article 199, paragraph 1, item b) mention that he has to
to possess moral suitability and good social behavior, especially in relationships
relatives. In appointing the guardian, the court will take into account the interests of the minor and the

society (art. 233, n. 1).

These are deliberately broad expressions with vague outlines, which will go
allowing those who must apply the law to take into account, on one hand, the feelings
predominant at a certain historical moment, and, on the other hand, the circumstances
specific to the concrete case. Only this complex valuation will allow the law to become
just when applied. After all, we are facing the application of the principle of equity,
which, in a strict sense, consists of the "assessment of the factual circumstances entrusted to"
the judge's awareness and it is made according to the moral and social ideas of the people to which

belongs
The validity of the law, extending over time, makes it necessary to adjust to
decision to the new concrete reality underlying the legal norm. The integration of the facts
the prediction of the legal norm is not always uniform and depends on the conception given to it

the moment society has about certain values and it can even happen that in
simultaneously, confront each other on the same issues with opposing positions.

It is at the moment when the norm will be applied that it will be defined for that
concrete case, the way the generic concept is integrated.
 Relevance of customary law
The fact that various ethnicities with different customs and practices coexist in the same country.

different, although it may be positive from the standpoint of cultural wealth, it can, by
on the other hand, to be used as a disaggregating element of the new State, susceptible to making
rekindling tribalism, hindering the necessary process for the political cohesion of the nation.
Also, the legislative body, as is obvious, puts an end to the discrimination between two
types of citizens within the same country that were observed in the colonial legal order,
which contrasted the personal rights statute regulated by written law and the statute
people of customary law.
It is true that several States adopt systems of legal pluralism, that is,
they admit that two or more different legal systems are in force and that they apply
differently to the various ethnic groups that coexist within the territory of
respective State. This system was predominantly accepted in the British colonies
that previously anticipated the simultaneous validity in matters of family law and successions, of the

English laws, from the norms of Indian law and the customary law of the populations.
indigenous people.
This is not the political orientation of the Angolan state that was already asserting itself as

unitary and secular character" by the Constitutional Law, art. 4, no. 2, letter e).
The principle that Angola is a unitary state is reaffirmed in the Constitution.
in its art. 8.° "Angola is a unitary State that respects, in its organization, the
principles of the autonomy of local government bodies and of decentralization
administrative decentralization, in the terms of the Constitution and the law.
It is certain that the legislative unit, as is obvious, puts an end to discrimination.
between two types of citizens within the same country that was observed in the legal order
colonial, and opposed the statute of personal rights regulated by written law and the
personal statute of customary law.
However, legal pluralism is now accepted as a reality of law.
Angolan in the recent opinion of analysts. It is understood that the changes at the political level
The social changes that occurred in the country allow for the coexistence of legal pluralisms in
A state that is, in its essence, a heterogeneous state.
 Currently, the Constitution in its article 7 has enshrined the applicability of
customary law: " The validity and legal force of the custom that is not recognized.
It should not be contrary to the Constitution nor infringe upon the dignity of the human person.

This writing is different from what was planned in the Draft Constitution that
it did not go forward, besides not being contrary to the Constitution, nor 'being
"contrary to the law." In the aforementioned Preliminary Draft of the Republic of Angola from 2004,

subsequently abandoned, it was anticipated in its article 6: "The validity of

costume that is not contrary to the Constitution or the current law.
It is true that customary law continues to be in force in Angola because it is
indisputable is your strength and persistence not only because of your entrenched cultural roots
in the communities, but still due to the privileges he grants to certain members
of the family that they do not want to give up.
Such is recognized by scholars of the Angolan legal reality that
we safeguard the existence of customs with effective legal validity.
It is a fact that in this matter, relevant scholars have already been supporting the
the existence of legal pluralism in the Angolan normative framework.
Regarding legal pluralism, the first characteristic is its enormous
wealth and complexity. The wealth lies in the fact that sociologically they thrive in
Angola and Mozambique have various legal orders and justice systems.
Regarding legal pluralism, whose general relationship is not univocal with the

democracy is made, the reflection concerns the multiple mechanisms of resolution

conflicts that we analyzed in the city of Luanda.
In the Family Code, an effort was made to gather some institutes taken from the law.
costume maker, taking advantage of the rich lessons taught to us by the experience of our people. As

for example, we can point out the family council, a consultative body of
tribunal, and the de facto union, of significant prevalence in our social reality, besides
about other options made regarding the economic regime of marriage and regarding relevance
of the kinship bond, among others.
On the other hand, other uses and customs that are not conciliable were not accepted.
with fundamental principles enshrined in constitutional law or in conventions or
international pacts that Angola has subscribed to, which ultimately relate to the
fundamental rights of the human person.
Ultimately, the acts that the law does not impose or prohibit, and that are by
these irrelevant things for him are left abandoned at the disposal of the parties, who can
thus choosing between various behaviors (...)
In turn, the constitutionalist Carlos Feijó directly addresses the
recognition and validity of customs and argues that according to art. 7.
Constitution:
The first idea that stands out is that the validity and legal force of custom
are recognized by the Constitution (...) the second immediate idea that stands out from
The principle is that the validity and strength of a custom do not depend on its conformity.
with the law (...). It only deserves the protection of the State if it does not contravene the Constitution and does not

they will attack the dignity of the human person.

And in conclusion it states: "The plural nature of the Angolan state and nation has given

originated a process that culminated in the legal pluralism of the Angolan legal system
characterized by the simultaneous presence of state law and various rights of
origin of customary order in rural communities.
"In the post-Independence years, the positioning of the Angolan state in relation to"

customary law can be characterized within the criteria used in doctrine as

vigorando beyond the law, that is, beyond the written law, even though, in the opinion of the
commentators, in a timid way (...). However, in light of customary law, the
the position taken was neither one of outright repudiation nor repression, because otherwise
prohibited the validity of the norms contained in customs and practices. Nor, conversely, did it

accepted in bulk its validity as norms of coercive law application, just as

as to written law.
However, the sensitive and delicate question arises of how to grasp and
to attend to customary family law, and to what extent it is compatible with the
fundamental principles of the current legal system. Additionally, there is a lack of collection
documentary of the theory of customary law that is diversified among the various ethnicities of

Country.
The authority of custom generally coexists with two factors:
 the authority of chiefs and the authority of ancestors.
In order to speak of custom as a source of law, it is necessary, as it is
it is known that the following requirements are to be verified simultaneously:

the existence of a certain repeated social behavior and

commonly accepted by the members of a certain community;
the conviction of the necessity of this behavior, in order to make it
binding upon the members of this community.
Regarding the issues of dowry and embellishment, which can be explained under the
historical and cultural point of view but that translates into discriminatory practices
against women, the President of the Republic emphasized that they could not be
eliminated overnight by the simple publication of a decree.
It is recognized that only with the global evolution of society and new conditions
The traditions that do not align with the new social norms will be changed or eliminated.
parameters of development and progress.
The constitutional amendment currently in effect requires us to review in detail what
measure is the customary right susceptible to coercive application and recognition
mention at the level of the government bodies, namely the Courts. The general rule
Yes, as we know, the application of the written law of general character and compliance
mandatory for all citizens. It can be accepted, however, that the custom is
applicable, under certain conditions, as an integrative measure, that is, in complement to the law. The

the costume will be applicable in communities subject to traditional authorities,

when they do not contradict constitutional principles.
In this specific aspect, we must take into account what is stated in Law No. 18/88,
of December 31—Law of the Unified Justice System, regarding
competence of the Municipal Courts, as in it we will find the legal possibility
of the application of customary law by the jurisdictional bodies.
Article 38(d) of this Law states that it is the responsibility of the People's Courts
Municipal "Prepare and judge civil matters, regardless of their value, when the
parts agree with the exclusive application of customs and usages not
encoded, whenever the law permits.
 From this provision, the following can be inferred regarding the limits of application of the

customary law, whatever the branch of law in question, as long as it is encompassed in

generic designation of civil cause:
—that the parties accept it voluntarily;
—that he does not contradict the principles established in the Constitution.

Unfortunately, the functioning of the Municipal Courts, especially at the level of

interior provinces of the country has until recently prevented a broader exercise of
its competence, which in practice has been focusing almost exclusively on the area of law
penal.
We are not aware of the specific application of this standard in the scope of
family law We truly believe it is to be feared that customary law is being
even applied against constitutional principles, where there was a void created
due to the lack of judicial coverage for the effective protection of citizens' rights, or in
cases in which those escaping from the legally established legal order go
to adhere to your rules.
The study of customary law certainly takes on importance for two reasons.
fundamental: on one hand, it allows for an in-depth understanding of behavior
social of a certain people; on the other hand, it provides the enrichment that can
to warn about some of your principles.
In any case, in matters of family law, customary law does not
can, by itself, be considered as a legal norm with normative power and
binding obligation. It can take effect between national groups, to the extent
as this may be tacitly accepted by the members of a certain social group. But
the constitutional principles are the same for all citizens and their compliance only
It can be coercively demanded from the state agencies with legal competence for that.
Since it is not integrated into the constitutional norm, customary law in general
it can only interest jurists and the courts, as organs of the application of law,
as underlying factual situations related to human behavior, and in that aspect its
the real importance is indisputable.
 One must never lose sight, however, that its importance lies
restricted to this aspect, it is not acceptable for a customary law norm
overrides, or even less, contradicts a constitutional norm.
It is considered unacceptable for two orders to operate within the same State.
distinct legal entities acknowledging and proclaiming fundamental human rights
to its citizens and another that enshrines their discrimination and the suppression of their

rights. In this sense, we can mention some of the most distinguished legal scholars.
African.
Thus, Kéba M'Baye acknowledges that in the countries that emerged from colonial situations,

it checked the coexistence of two communities (one European, the other African), with two
different statutes (one modern, the other traditional), "but the distinction between citizens
and it is no longer possible for the indigenous people due to the equality of all before the law, by the

what is it to try to create a unified right, applicable to all nationals, any

whatever your origin, your beliefs, and your previous statutes.
Also Guy Kouassigan, in his study on family law in black Africa.
Francophone, it comes to affirm that "the drafting of a new family law appears as
a necessity imposed by the imperatives of economic development. It is about
of a true revolution, which must replace it with a creator right of the future both
as much as possible with the coding of customs that oppose their immutability to
needs for change." And concludes by saying: "progress is actually the
deepening of oneself (...) it is necessary to reappropriate one's own world
revaluing your values and your concepts and eliminating what is not useful
its restructuring (...) such as the distortion of the customary dowry or of
consent for marriage, it involves data that has lost its basis
traditional and that do not fit into the transformation movement.
Reality shows us that among the citizens of the country there are various types of
behavior, some according to modern law, others according to the various
customary rights. For the latter, it will certainly not be a moment
for the other that will fade away its praxis based on intimate beliefs and practices
centenary. It is important not to lose sight that in many countries on the African continent
remains in force, in matters of family law, part of customary law
(even having their own courts to address issues related to such matters), and that
it is in itself different from written law, which, in many cases, is still colonial law,
that is, French law in Francophone Africa and English law in Africa
English-speaking.
We can mention the Republic of Cameroon, which is a state composed of about
of 250 ethnic groups, where French and English laws are simultaneously in force and the
various rules of customary law.
In Zimbabwe, the system of dual applicability of the law remains in place.
written in customary law, which has raised intense questions about the prevalence
from the law written on openly discriminatory norms of customary law.
Specifically, the application of the Legal Age law was claimed, law published
after Independence and recognizes every citizen, man or woman, full
civil capacity, contrary to what happens in customary law, where the woman
a status of minor is assigned throughout their life.
When analyzing the texture of African society during the colonial period under domination

In English, Martin Chanok observes that customary law is not limited to simple rules.
of behavior of a community, but it is a way to maintain order and the
power relations. Later, it adds that in the former British colonies the law
the costumera was accepted as the alignment of interests among the older men of
community and the British administrators. It concludes by stating: "I do not wish that I
understand as underestimating the need for state intervention in the right to
family, playing a vital role in reversing established inequities and in protecting the
dependents. In Africa, as in many other places, life is lived outside the law and
it involves values and behavior patterns that are different from those that come
framed within the legal system.
In the study of family law in the customary law of South Africa,
it was similarly concluded that: "The <invention> of the <tradition> of a customary right
African influence had a profound impact on the status of women in African customary law.
(...). The invention of a traditional customary right, of African family origin, led to a
significant source of oppression, subordination and discrimination against women.
 ... The system is actually a legacy of the past (...). Either society in the South ...
Africana establish a new society based on a family law system.
modern general, based on the values of human dignity, equality, and non-racism
And of non-sexism?
To conclude, we understand that customary or traditional law can only be
recognized and accepted with binding force of law if freely accepted
by the citizen and provided that its acceptance is within the availability area of the parties.
It will have to be rejected when its content violates principles
constitutional or international, such as the one of freedom and equality of all
citizens before the law, or the mutual consent for the celebration of marriage.

Sources of family legal relations

We can characterize as family legal transactions all those that
constitute, modify or extinguish family relationships. The cause in these transactions
legal matters are of family interest.
In family law, family legal transactions, as further explained below.
We will see, they can derive from simple natural facts, or consist of unilateral acts,
for they are precluded in a declaration of a single declarant, or in bilateral acts, which are
they conclude with the agreement of two wills.

As natural facts, we have procreation and live birth that leads to

origin to the most important family bond—parenthood, as we will see next, and the
death that alone extinguishes family bonds.
As an example of a unilateral act, we can point to the declaration of adoption of
nickname of the other nuptial, declaration that either of the nuptials can have leisure at the act of

wedding celebration. A bilateral legal transaction is the act of marriage. Even

when two wills intervene, the act does not resolve itself into a proper contract,
because the rules that govern the law of obligations do not apply to it.
The rule is that, due to the importance of family legal acts, which will generate
situations of a lasting nature, the law prescribes a solemn form for its practice,
how it will look. Defined what should be understood by family legal transactions,
We can now see what your sources are, that is, what the legal facts are of
what they derive from. The sources of family legal transactions are the facts or
legal acts from which the family ties provided for in the law derive, that is,
those who constitute the family.
It is interesting to compare the sources of family legal transactions, just as
they were provided for in the Civil Code, along with those in the Family Code.
The Civil Code, in Art. 1576, which started Title IV, referring to Law of
Family, established as sources of family legal relations the marriage, the
kinship, affinity, and adoption.
Article 7 of the Family Code states that 'the sources of family relationships are the'
kinship, marriage, common-law union, and affinity." And right after that, article 8.
it makes clear that "kinship is established by blood ties and by adoption."
0 kinship originates from the very natural and biological cause of parenthood
it is always established based on one or more parent-child relationships. For its part,
we will also have the opportunity to study that adoption constitutes between the adopter and the adopted

a bond identical to that of parentage, but no longer for biological reasons having as origin
a sentence issued in an adoption process, which due to the effects it produces, the
Family Code included it within the same institution of kinship, which became
to encompass kinship by blood ties and kinship by adoption.
Next to kinship arises, as a source of family legal relations, the
marriage, which is considered by many of the scholars who study law
family as the only source with dignity to generate family relationships, being the
other derivatives of him. According to this point of view, only through marriage does one
constitute legitimate relationships between the spouse and their relatives, ancestors and
descendants, with family relationships established outside of simple marriage
illegitimate or para-family relationships.
It is clear that this is not the point of view of the Family Code, which had in
it is important to note that in Angolan society the bond of
parentage based on parent-child relationship rather than on formal marriage. Hence, one has
indicated that, besides marriage, common-law partnership is also one of the sources of
family relationships.
 The common-law marriage, however, needs to be recognized in order for it to be
attributed to the fullness of the effects provided for by law, which does not mean that the union that

may not be recognized shall be totally postponed by law.

Finally, the affinity that derives from the act of marriage and links the spouse to the relatives.

the other spouse also constitutes a source of family relationships, although to a much lesser extent

scope.
Within the methodology of the Family Code, we will successively study the
kinship and affinity.
 CHAPTER 4.0
LEGAL NATURE OF FAMILY LAW
It is interesting to point out some general aspects that run through the law of
family and that highlight the existence of the family's own interest, linked not only to
family cell, but also to each of the members that compose it.
General characteristics of family law that define this branch of law and
they help with your understanding, but they admit, however, differentiated areas and
exceptions, so they should not be viewed in a monolithic and absolute value.

Nature of group and intercurrent

Family law defines the legal family relations that develop.
within a certain group, the family group. The family group is composed of
members connected to each other by various family ties: parentage and kinship
blood ties or by adoption), marriage and common law partnership, affinity and guardianship.
The State provides this community with the necessary support for its protection and

strengthening, as the development depends on the reinforcement of the family nucleus

of the individuals that make it up and, therefore, of the very society they are a part of, or
It is, ultimately, that of the community itself in general and of the State.
The family group, however, does not have the nature of a legal entity, nor is it,
therefore, holder of rights and duties independently. And this is because the interest
Legally protected is the interest of each family member and not that of the group.
familiar in itself.

It is said that family law is a group right because, just like law
of labor and cooperative law develops within a restricted group and because,
in the foreground, regulates the relationships of the members of this social group.

It is said to be a recurring right because it circulates from member to member.

in reciprocity. That is, the husband's rights in relation to the wife correspond
of women's rights in relation to the husband, and the same occurs in others.
relationships between parents and children, between relatives, etc.
 Within group relationships, they can be characterized as rights of a nature
relational, reciprocal and intercurrent, that develop among the family members and
are based on the principle of solidarity.
Functional nature
Family rights are, for the most part, true functional powers,
because they must be exercised in accordance with the social function designated by the law. Say-
Yes, in fact, this conception of exercising the right according to its legal function is,
by some jurists, extended to civil law itself, not being so,
considered as specific to family law.
The end in view of which the law is exercised must be that which is permitted.
by law, under penalty of abuse of rights.
Thus, the rights that regulate family relationships are, simultaneously, a
law is a duty, as if, for example, the law recognizes the right of parents to safeguard,
to watch over and educate the children, imposes on them, on the other hand, the duty to act accordingly. In

Exercising their rights, the holder cannot act as they wish nor for purposes not
granted by law, but only for the legal purpose for which that right was assigned.
They should not be understood as strictly subjective rights, because they do not
must be exercised with the interest of its holder in mind, but only the interest that
the law protects.
The legally protected interest is the social interest, and the exercise of the right
deviation from the legal end leads to abuse of rights.
The right-duty of a permanent cooperation becomes more evident in the law.
of family and determines how it should be exercised.
Predominance of the imperative nature and opposability
Proof that family law should not be considered as belonging to the
civil law is the way the State intervenes in the defense of the interests of this important
social organism.
In fact, family law institutions are regulated in their generality.
by non-derogable, imperative nature rules.
 The rules regarding the institution of marriage, its dissolution by divorce, to
affiliation, to the relationships of kinship, to adoption, to guardianship, etc., cannot be derogated or

replaced by others established by agreement between the parties.

This characteristic of family law highlights the predominance of its public nature.
of this right and also shows the inconsistency of the bipartite division of law into law
public and private law.
There is, for sure, an important intervention of will autonomy in
various family law institutes.
Marriage and adoption can be cited, which depend on their constitution,
from an initial declaration of will, whether from the bridegroom or the adopter.

The voluntariness in the establishment of family ties is still common to the union.
de facto, the acceptance of the position of tutor, etc..

The will of the couple is, for example, evident in the adoption of each other's surname,
or in the option between the two matrimonial property regimes that the law provides.
In the establishment of the parent-child relationship, the will of the parent does not intervene.

for it derives from the natural fact of procreation. There are various legal avenues that lead to

establishment of this link, regardless of the means of declaration of will

by the own progenitor.
Consent is also an essential element in various institutions.
relatives.
But the effects of marriage, adoption, guardianship, etc., are those that the law establishes.

the same happening with the choice of the marital property regime which, from the
wedding celebration can no longer be replaced by another. The same happens with
the consent for the recognition of the common-law marriage, or for the divorce by
mutual consent, whose effects are defined by law, cannot be the subject of
disposal by the will of the parties.
It is also said that family rights have absolute opposition because the
the respective holder can oppose them erga omnes, that is, their rights can be invoked,
want in relation to the person, family member, with whom the bond is established
intercurrent, either in relation to any third party, outside the family group. They are rights
established by law and as such opposable to all.
 Personal nature: exclusive ownership
One of the essential characteristics of family law is precisely the fact that
to be an eminently personal right. It is attributed to someone in their specific capacity
and in your own interest, both moral and material. Family rights are, in
fundamental, essential rights of the person.

They must be exercised by their holder in a strictly personal and exclusive manner.
Even when, in certain cases, the law allows one of the parties to be represented
in a legal transaction, the will expressed in the legal transaction is that of the

mandator and not that of the mandatary. In marriage, for example, it is always the

will expressed by the represented that is legally relevant, and not that of
mandatary: as we will see, this acts as a simple "nuncio", as the mandator has
to identify the person of the other party. The law does not allow a generic mandate for
the celebration of any family legal agreement.
In the case of incapacity, this can be fulfilled by the representative, but when
the law requires consent, this is given by the incapable, although authorized by
representative.
Family law is not susceptible to valuation and compensation.
economic. Nevertheless, there are property relationships within the law of
family, such as those that regulate the property regime, the debts of the spouses, the
administration of the assets of minor children by their legal representatives. But for
Each of these types of property relations has specific regulations in family law.
that govern the general norms of the law of obligations and real rights.
And this is because they do not have property legal relations as their object.
The right to alimony, as we will also see, although it may have as its object
a payment of monetary value is not a relationship of patrimonial content, because
the immediate object is the survival of the person benefited by them.
From its inherently personal nature derives, as a consequence, the fact that
they will be unavailable rights, which cannot be assigned or transferred to others.
will of the parties.
 Family rights are non-transferable whether inter vivos or mortis causa, because
they extinguish with the death of the respective holder. Exceptionally, the law allows that
some 'rights of action' are transferred post mortem to certain heirs.
But there is clearly a difference between the actual exercise of a family right
it is merely the transmission of a right to act to obtain the production of certain effects
of a personal or patrimonial nature.
This occurs notably with the action for annulment of marriage due to lack or
vices of will (art. 68, no. 1), which must be initiated by the spouse. But, in case the
If the author passes away during the pendency of the case, it may be continued by the relatives.
in a straight line or by their heirs. In the case of challenging the declaration of filiation
made by someone other than the parent himself, if the latter passes away, the
heirs challenge the declaration through judicial means—art. 189.°. Also in actions of
recognition of de facto union, in the event of death, the right is transmitted to the
heirs—art. 123, paragraph b).
It is also added that these are rights that cannot be subject to condition or to
term, what prevents the acceptance of legal effects from being dependent on
verification of a certain fact or that these effects last only during
determined period set by one or both parties.
No one can impose conditions, such as making it dependent on
establishment of the paternity of the circumstance of the child being of this or that sex,
or to have certain

physical or intellectual attributes. No one can marry for a deadline, declaring that,
After a certain period of time, the marriage is considered over.
By their very essence, they are still, as a rule, unrenounceable rights, for the law
does not allow its holders to renounce them, since, upon granting them, the law had
in view of a broader interest than individual interest itself. They are also
inalienable and imprescriptible rights in principle.
This will be relevant concerning the so-called 'state actions', which are
actions whose decisions will affect the marital status of individuals and produce
effects in relation to third parties—art. 674 of the Code of Civil Procedure. We can
indicate as state actions the actions of divorce, annulment of marriage,
recognition of de facto union, those of judicial establishment of parentage, those of
challenge of affiliation, of adoption, which are constitutive actions of rights.
As they deal with personal and non-waivable rights, they are subject to a
specific procedural regime.
Article 299 of the Code of Civil Procedure does not allow confession, waiver or
transaction, when the action respects rights of an unavailable nature. In its number 2
allows for free withdrawal in divorce and separation of people and assets, because
As we will see, we are faced with a legal faculty whose holder may or may not want.
to exercise.
The confession of the facts invoked by the parties is not allowed when the will
the parts are ineffective to produce the legal effect that the action intends to obtain—
art. 485, paragraph c), of the Civil Procedural Code. It is, however, necessary to consider that it is

Possible the confession when the legal fact in question transcends the scope of will.
the parts.
As we will see, in the actions for the establishment of affiliation, whether of the bond of

maternity or paternity, and that are proposals against the very progenitor, this
You can come to accept or in other words "confess" the fact. And this is because the legal lacto
the bond of filiation is based on procreation and the birth of a living child.
child and does not depend on the will of the parent.
By the way, in French law, confession is admitted in the divorce process, which
configures one of the forms of dissolution of marriage, as mutual consent can lead to
the dissolution of the marriage.

We still have to take into account the fact that the nature of the unavailability of

family law is reflected in the impossibility of waiving the right itself, but not
impedes the right holder from regulating their respective family disputes through
conciliation or resorting to preventive mediation process or during the
judicial process.
Such does not mean that the parties cannot regulate their affairs through agreements.
own rights establishing rules that establish agreements in situations of
conflict. These agreements have the legal nature of pacts and can be made
extrajudicially and presented in court or made directly in court. If the
agreement or pact said

regarding minor children will necessarily have to be subject to validation

of the tribunal with prior hearing of the Prosecutor of the Republic.

They are indivisible by nature, as they cannot be used partially: their

The holder cannot enjoy one part of these rights and waive another.
There are, however, certain rights within family law, such as the right to
divorce, the right to alimony, which the law allows the holder to decide, in
concrete, whether one wants to exercise them or not. The holder is the one who can ask for it or not, that it be

divorce decreed or whether the obligated party is or is not condemned to fulfill the obligation
alimentary.
But the right itself is not affected, given that what the law prohibits is that someone can
waive the right that is specifically granted to him by law. This rule is known as a
exception, which concerns the institution of adoption, through which the biological parent, when giving
your consent to the establishment of the adoption bond between the adopter and the adopted
terminate the bond of natural filiation.
From the characteristic of a personal nature right results, finally, the fact that the
family rights are of an imprescriptible nature, as the right does not extinguish by
fact of the passage of time. But there is a limitation regarding the right to take action.
certain family actions, such as the divorce action, the annulment action
marriage, the action of recognition of common-law partnership, etc.
The Family Code accepts the principle of the formal nature of this branch of law.
We can cite as exemplifying this principle those that refer to
mandatory intervention of the court in contentious divorce proceedings (arts. 97 and
in the annulment actions of marriage (art. 66 and following), in the establishment of the bond of
adoption (art. 212 and ss.), in the action of guardianship—art. 224.

The civil registry authorities are called to intervene, among other acts, in
celebration of the act of marriage (art. 33.), in the declaration of parentage, which can also
to be made before the notary or court—art. 175.
 Exceptionally, the intervention of the Minister of Justice is even anticipated, in the case of

validation of marriage due to lack of formal requirements - art. 73, paragraph d).
The characteristic of typicality derives from the imperative nature of family law.
The institutes of family law are limited by a closed number, which means
meaning that only the institutes provided for by law are allowed, not being within the
availability of the parties to create others by any means.
The legal enumeration of the institutes is thus of a taxative nature and only those that are

foreseen in family law can thus be recognized. This is what happens with the
marriage, divorce, parentage, adoption, etc.. The law does not allow the parties to create
family institutes by contractual means or otherwise.
Some family rights are susceptible to possession, which translates to detention.
specifically and in the exercise of the corresponding rights and duties belonging to a certain
family situation. Of particular relevance is the possession of the status of son, which consists of
as we will see, in someone appearing as being treated and considered as the child of
certain person. And also the status of being married, when, for example, a man and
women live as if they were married and as such are regarded in their relationships
social, although there is no record of marriage.
It is referred to as possession of state when it is verified that someone is exercising the

prerogatives of a certain family situation. The possession of family rights

it constitutes, however, a mere legal presumption of the ownership of the respective right.
Stability: the family legal status
Family relationships are, by their very nature, enduring in character.
resulting in stable and permanent legal situations that are called states.
The family status, or marital status, is characterized by the legal situation of each
person in relation to a specific family group in which they are inserted.
The marital status is, therefore, a complex and lasting legal situation, and it is formed

for a set of rights, duties, faculties, etc., related to a specific

person as a member of the family community.
The family statuses that relate to marriage are single status,
married status, or the status of divorced or widowed.
 In relation to affiliation, we have the status of being a child concerning kinship and affinity.
we have the status of relative, the status of in-law, etc.. The false declarations about the status
civil constitute a criminal offense in the Preliminary Draft of the Penal Code.

Family personal rights persist while the objective situation lasts that
they serve as support. Thus, they only extinguish or change due to causes provided in the
You. For example: the death of a spouse or divorce dissolves the marriage.
Importance and obligation of civil registration
Personal rights and family rights, due to their social importance...
the life of each citizen and society in general is subject to a special regime of
a registry known as the civil registry.
The civil registry publicly records the facts relevant to the identification of each citizen.
and so it is with your family state. Therefore, the facts that are subject to registration are
originate, establish, or modify the family legal status. It is therefore up to the registration

to collect and make public the fundamental data of each citizen's life in the country,
such as birth, marriage, and other facts resulting from family life,
like divorce, the establishment of parentage, the inhibition of parental authority, the
adoption, guardianship, and death. It is therefore through the civil registry that age is proven,
integrating element of civil and political rights, that is, civil and electoral capacity
and the military census is conducted. It should also serve for the State to make statistics.
of its population allowing for better economic planning.

It is through the civil registry that one proves their condition as a citizen, in other words, the

The civil registry contains proof of citizenship, of the condition of Angolan citizen.
In the appreciation of the terms nationality and citizenship, there are those who understand that they

if they do not confuse.

As a rule, civil registration is mandatory and is the only means of proof of
facts subject to registration. Without going into detail on the assessment of these issues, we can
to advance that unfortunately for historical and cultural reasons, civil registration in Angola
suffers from structural weaknesses and has not fulfilled the duties assigned to it by law.
To replace the lack of civil registry, proof of often resorting to the
facts through testimonies, usually from traditional authorities, that do not
they are cloaked in precision or even in veracity. They are well known for
difficulties that have arisen from the lack of security of the civil registration system.
Article 9 of Law No. 1/88 maintains the obligation to register all acts.
provided for in the civil registration laws and subsidiarily in the Civil Registration Code in
vigor. Access to certificates of civil registry acts is, as a rule, free, but the certificates
Full copies are subject to restrictions.
Family rights, due to their stable and lasting nature, are
mandatorily subject to registration. Article 1 of the Civil Registration Code defines which
the facts that constitute the object of the civil registry, with the addition of those that
we import its modification or extinction/
Because these are facts that will reflect on the personal and family life of the citizen, they must

to be subject to mandatory registration.

The civil registry is intended to provide proof of acts subject to mandatory registration.
According to the law, in the absence of registration, proof can only be made by another means that is stated.

the actions of the state or of civil registration—art. 4 of the Civil Registration Code.
As we will see, several articles of the Family Code reiterate this principle: the
article 38, no. 1, regarding the act of marriage and article 162, no. 1, regarding the
establishment of affiliation.
In the Family Code, the intervention of the Registry Offices has been expanded.
Civil and the assignment of its competence in family proceedings. It has been up to them,
namely:
receive the declaration of the bride and groom regarding the adoption of the economic regime of

wedding
- the mutual consent divorce process that was already attributed to you by Law No.
9/78 of May 26, under certain conditions;
the process of recognition of common law marriage by mutual agreement;
the process of challenging a declaration of affiliation made by a third party who does not

the progenitor;

the process of distancing the presumption of paternity from the mother's husband;
 the obligation to send to the competent Public Ministry the certificate of
birth certificate that is silent regarding the ties of motherhood or
fatherhood.
The proof of the facts contained in the register when derived from statements made
by the declarants and not directly evidenced by the civil registration officer can be
object of proof to the contrary, in accordance with the usual terms of law.

The civil registry is institutionalized among us as a function of the bodies of

National scope state. Its strengthening and integration throughout the territory.
national is of vital importance for the consolidation of the state's own structures.
Specific nature of the guarantee
Some doctrines also point out that personal family rights are
fragile guarantee rights or resulting from norms of legalizing moral precepts
frankly coercive. The violation of rights imposed by law remains many
times without sanction.

Being norms of a personal nature, the behaviors or performances that they

determine whether they can or cannot be carried out, without being able to exert direct coercion

about the person who, by law, is obliged to comply with them.

any other, except in state actions and in registration actions. 2. The facts
registered cannot be challenged in court, unless a request is made for the
cancellation or the rectification of the entries and annotations corresponding to them.
In fact, as family law is eminently personal, if the very
the holder does not want to exercise or exercises it contrary to the law, the State or the holder of the right

only indirectly can it be coerced. The holder of the right that was violated cannot, as
for example, in the law of obligations, to obtain specific performance. But there is a need to
consider whether or not it is possible under the law to obtain compensation for moral damages, given that

nothing in the law seems to prohibit such reimbursement.

In the underlying conception of the current Family Code, it was not acceptable
principle of indemnification for moral damages due to the breach of duties
relatives, since it was not accepted in the socialist conception of law, the pretium doloris,
That is, moral damages could be compensated with monetary values.
 Other legal systems accepted the request for compensation for damages
morals in the case of serious family absences, with the request being made in
simultaneously with the divorce petition.
This right is provided for in Portuguese law, in the new wording of article 1792.
Civil Code, which was given to you by Law No. 61/2008 of October 31.
However, there are certain violations of family duties that, due to their seriousness,
constitute criminal offenses. Indeed, criminal codes classify crimes,
referred to as crimes against the family, such as the crime of bigamy, the crime of abduction of
minors, or the failure to provide moral and material assistance to the family, the violation
gross negligence of parental duties, etc.
Law No. 2,053, of March 22, 1952 (Family Abandonment Law), punishes the
non-payment of alimony to the minor or to the spouse, the lack of economic assistance and
moral to minor children and the spouse, the abandonment of the marital home, provided that
filled in the other conditions specified in the diploma. The fact is that this law is
showed almost completely inoperative and stripped of coercive value.
The very penal legislation regarding the unlawful violation of family duties
has evolved significantly. The Portuguese Penal Code, approved by Decree-Law
No. 48/95, of March 15, provided for crimes against the family, the crime of bigamy (art.
247.°), or for civil status fraud (art. 248.°), or for the abduction of a minor (art. 249.°),
and the violation of the obligation of alimony (art. 250). Law no. 59/2007 of April
September came to further punish intra-family violence, enabling the bad.
treats, the crime of domestic violence.
We will have the opportunity to address each institute of family law.
to study the provisions of penal law that apply to certain conduct.
The crime of adultery, for example, is no longer punished in most of the
penal legislations, being certain that, as a rule, a woman's adultery was punished with
much more severity than that of man.
In compensation, the law has been changed, providing that the crime of rape may
to exist between husband and wife. Today, there is an effort to protect the weaker members of
family, to improve the effectiveness of combating crimes related to domestic violence and the lack
of material assistance that jeopardizes the very subsistence of the people who
they make up the family.

The Preliminary Draft of the Penal Code concerning the crime against sexual freedom
considers sexual assault any sexual act performed through violence or coercion.
the placement of the victim in a situation of unconsciousness or impossibility of being
to resist—articles I68° and 169°.
It also specifically foresees Crimes against the Family, which include the crimes
against Marriage, Civil Status and Filiality and against Other Legal Assets
Relatives, such as Material Abandonment, Subtraction or Refusal to Deliver a Minor, the
Disclosure of False Paternity—articles 221° to 232°.
The Law against Domestic Violence, Law No. 25/11 of July 14 to which we referred earlier
we refer to Pune, among other things, events that occurred in the family environment.

When it does not constitute a criminal offense, the violation of family duties can
grant the holder of the infringed right the ability to exercise rights. It is the case of the
right to request divorce due to violation of marital duties by the other spouse.
In the case of a violation of parental duties, the Public Ministry or the other
The legal representative of the minor may request the inhibition of parental authority.
regarding those who are exercising it.

The referred draft of the Penal Code foresees as an accessory penalty for the
crimes of a sexual nature the decree of the inhibition of the parental authority of the agent of
crime—art. 187.
It should be pointed out that, in many legislations, it begins to manifest itself, through

various mechanisms established with the purpose of protecting the family, the tendency
to ensure greater guarantee of family rights.
 CHAPTER 5.0
THE PARENTAGE
Notion
Kinship is the bond that connects two people, as a consequence of one of them.
descend from the other or both stem from a common ancestor.
In the Family Code, the concept of kinship by blood ties is included
in its article 9, according to which 'kinship by blood relations is the bond that connects'
two people by virtue of one descending from the other or both descending from
common ancestor.
Thus, there is as a cause the biological fact of someone descending from another or among

both have a common ancestor. Just like the generality of family rights,
kinship is an ongoing relationship between two people who, in this case, are
bound by ties of blood.
The concept of kinship is, therefore, primarily based on fleshly or emotional ties.
blood, but that does not mean that it is uniformly accepted by all peoples,
because in some family structures it is not only blood ties that establish
the kinship relations.
It is enough to remember that in Roman law the patriarchal family was agnatic,
because it was made up of members subjected to the patria potestas, even if not
linked to each other by ties of blood.
There are some who distinguish between agnatio, which is the bond that is established by
common subordination of family members to their respective head, and the cognation, which is the

blood relationship based on community. When precedence is given to

kinship ties we have the family lineage; if we focus more on the ties of alliance,
we have the family home, more restricted. These two concepts of kinship can appear in the
traditional African societies, in which, in certain cases, women are considered
as a family member, although not connected by blood ties to the husband and
your relatives.
If the relationships of
relationship we will find the extended family or large family. If the ties of
restricted or limited family ties, we have the close or restricted family that
represents the trend of modern societies.

One can still accept spiritual kinship, such as that of canon law, which
links the baptism sponsors to their godchildren, a figure that also emerges with greater
or lesser relevance when someone is introduced by someone else in a certain
community.
Lines and degrees of kinship a) Lines of Kinship
The concept of kinship in the Family Code is the same as that stated in the Code.
Civil in its article 1578, but the Family Code does not allow any type of
discrimination between 'illegitimate kinship' and 'legitimate kinship', instead of what
it made the Civil Code. From the perspective that was defended by this Code, the
legitimate kinship was that which derived from people united by marriage and the
Natural kinship was that which derived from people not united by marriage. In the lines
of kinship, there is a distinction between the paternal line and the maternal line that identify the

ascendancy on the father's side and ascendancy on the mother's side. In certain systems of
kinship predominates either one or the other line of kinship, but the Family Code
does not make any discrimination.
Lineage can still be classified as 'double' or 'simple' kinship.
being double kinship the one of siblings from the same father and the same mother, that is, from parents

common and with the same maternal and paternal lines of kinship. In kinship
It's simple, there is only one bond that connects one brother to another brother, that is, only through the paternal side.

only through the maternal side.

The degree of kinship is usually classified according to its lines and branches.
your degrees.
The lines and degrees of kinship serve to determine the closeness and the
nature of the bond, as defined by Article 10 of the Family Code.
The lines of kinship are classified in article 11, number 1 of the Family Code.
in the following way:
a) straight line or lineage that connects people who descend from one another;
 b) collateral or cross line, which connects people who have a descendant
common.
A. Kinship in the direct line
The straight line connects, therefore, between each other, the people who descend from one another, that is to say

the lineage. The lineage is a common trunk of people who have a common ancestor.
When considering the straight line from the ascendant to the descendant, that is, from
grandfather to the father and to the son, we have the straight descending line if we walk in that direction

in reverse, starting from the descendant, that is son, father, and grandfather, we have the straight ascending line

Article 11, number 2 of the Family Code, just like Article 1580 of the Civil Code.
In the line of collateral kinship, the chain of relationships is no longer found.
affiliation, as this line originates from the fact that relatives have only one ancestor
common.
The ascendants and the collaterals bifurcate into two distinct trunks, those of the line.
paternal and maternal relatives, when the common ancestor comes through the father or through
through the mother.

Regarding the siblings, there may simultaneously be the same.

paternal and maternal ancestry and we have the full siblings or bilateral.
But if the siblings have only the same father, they are already blood relatives and if they have

Only the same mother are uterine siblings, with some and others being unilateral siblings.

Let's look at the different lines of kinship and how we can represent them.
graphically for better understanding of this family bond.
Taking X-EGO as a starting point, we have its ascendants in line.
maternal line and its ancestors through the paternal line.
The first are the mother, the two maternal grandparents, the four maternal great-grandparents and the

eight maternal great-grandparents. Those from the paternal line are the father, the two paternal grandparents, the four

paternal great-grandparents and eight paternal great-great-grandparents. In the direct descending line, we have two children.

four grandsons and eight great-grandsons. In our ancestry, the number of ancestors increases
in arithmetic progression: 2, 4, 8, 16, 32, etc. in a.l., 2.a,
3. a, 4.*, 5.a generations, successively and infinitely. Figure 1—Kinship
in a straight line

B. Collateral kinship
 The common ascendant is A, who had a son B and a daughter B hat are relatives.
in the 2nd degree, relatives in the collateral line, that is, siblings. B is the father of C and B* is the mother of

In the second generation, we have the uncles and the nephews, that is, B is C's uncle and C is the niece.

B is, in turn, C's aunt and C is B's nephew. Between them, C and C are cousins. Uncle and
Nephew and niece are relatives in the 3rd degree of the collateral line. C and C' being cousins, are related.

in the 4th degree in the collateral line. C's son is D and C's daughter, who is D', are
respectively, great-nephews of B and B hat are their great-uncles, relatives in the 4th degree
from the collateral line, and they are cousins of C and relatives in the 5th degree of the collateral line and, among

yes, they are relatives in the 6th degree of collateral lineage, which is the legal limit of kinship

established in Article 13 of the Family Code.

A - COMMON PROGENITOR
Figure 2—Kinship in the collateral line C. Bilateral and unilateral siblings

Let's take as an example A (father) who had two children, X' and X''. A came to
marry B (mother). A and B had three children, namely C, C’ and C”.
Later, B was widowed from A and married Y. From B and Y, the children were born.
Y* and Y.”
Regarding C, C' and C”, we have that they are either full siblings or
bilaterals. As for X and X', they are only siblings on the father's side, that is,
blood brothers.
And, in relation to Y* and Y”, C, C’ and C” are brothers on their mother's side, that is,

uterine brothers. Any of these are, among themselves, unilateral brothers.

Thus and by way of example:
A and B had children C, C' and C” —full siblings.
A and X had children X and X', who are, in relation to C, Ce C'', siblings.
blood relatives.
B and Y had the children Y' and Y'', who are, in relation to C, C' and C'', siblings.
uterine.
The blood siblings and the uterine siblings, as they have only one common parent, are

unilateral brothers.
 It is noteworthy that X* and X" have no kinship ties with Y* and Y".
for not having any common parent between them.
Figure 3—Bilateral and unilateral siblings
b) Degrees of kinship
Kinship is measured by degrees, and it is closer the fewer there are.
degrees of kinship that exist between two relatives.
The law defines the method of calculating degrees of kinship, starting from there ...
natural counting base of the various generations.
Article 1581, section 1 of the Civil Code explained how the computation of degrees was done.
saying: 'Between parentheses in a straight line, there are as many degrees as there are people that form

the line of kinship, excluding the parent.

Article 1581, No. 2 stated that in the collateral line, the degrees were counted by
same way, going up one of the branches and coming down the other, but without counting the

common progenitor.
The Family Code equally counts the degrees of kinship,
although in article 10 it speaks of generations and not of the people who make up the line of

kinship.
Applying these concepts, we will see that the counting of degrees of kinship is
It counts the generations between the people involved, or counting the relatives included.
in the line of

relationship and excluding the common parent, depending on whether it is a straight line or

collateral line.
Thus, between a father and a son there is one degree of kinship; between a grandfather and a grandson, two.

degrees; between great-grandfather and great-grandson, three degrees.

In the collateral line, we have siblings as relatives in the 2nd degree; uncle and nephew.
third-degree relatives; the cousins who are the children of siblings, fourth-degree relatives and their children

the cousins are related to each other in the 6th degree.

In this line, the degrees are summed and the common ascendant is excluded.

Civil law imposes limits on kinship in the collateral line, since in the straight line, the
relationship has no limits.
 Thus stated Article 1582 of the Civil Code, stating that, except for provisions of
Unless otherwise stated, the effects of kinship were produced at any degree of the straight line.
and up to the sixth degree of the collateral line.

In the same sense, Article 13 of the Family Code provides.

In a straight line, there are no limits of kinship, as they result from the natural fact of
term of human longevity, which does not allow more than three to coexist
rarely four generations.
On the collateral line, kinship could be produced indefinitely, and hence the
limit provided by law.
Canon law counts degrees of kinship in a way
different, counting only the number of generations between the common ancestor and the relatives

in cause. According to this criterion, siblings are first-degree relatives; cousins co-
brothers, relatives in the 2nd degree; second cousins, relatives in the 3rd degree, etc.. Having
two branches of different extension, the more extensive one is counted, like the kinship between uncle
and the nephew, who is of the 2nd degree.

Effects of kinship: rights, obligations, and incapacities

Kinship produces important effects of various natures: it derives from it
rights, obligations, and impediments.
It is verified that these effects tend, more and more, in the various legislations, to
to produce oneself among relatives of closer degrees, as the extended family gradually diminishes
its social importance and, by restricting the family circle, is gaining greater prominence
the restricted family.
a) Succession effect
The main effect of kinship is the succession effect. In the case of the author of the
inheritance when passing away without a will, the legitimate successors are called—art. 2131.
Civil Code.

According to the terms of Article 2132 of the Civil Code, legitimate successors are relatives.

the spouse. The order of legitimate succession is specified in Article 2133 and has as
limit the collateral of the 6th degree.
 The class of successors is ordered in a staggered manner, according to the
order and the proximity of the degree of kinship.
Article 2157 of the Civil Code defines as legitimate heirs the
descendants and ancestors, who are especially protected.
b) Obligation and right to alimony
Another important effect that arises from kinship is the obligation and the right to
foods, which, as we have already said, come from the right and duty of assistance that must
to exist between family members.
The right and obligation of alimony are regulated in Title VIII of the Code of
Family and are established among people connected by different family ties, such as
kinship, marriage, common-law union, affinity, and guardianship, sometimes.
Article 249, no. 1 of the Family Code provides for who is obliged to
provide food to the minor, mentioning first the parents and then the adoptive parents
the other ancestors, older siblings, and uncles and the stepfather or stepmother, what does it mean

that the duty of support for a minor extends up to the 3rd degree of collateral line and
to a purpose, as we will see.
Among the larger ones, the obligation is regulated in paragraph 2 of article 249 and is established

between spouse or ex-spouse, descendants or adoptees and siblings, that is, in the line
collateral obligation extends only to second-degree relatives.
c) Marital impediment
0 kinship still produces effects in the field of matrimonial law, as it can
constitute matrimonial impediment.
There are types of kinship that entail an absolute prohibition on entering into marriage,
as is the case of marriage between relatives in a direct line (e.g., between father and daughter, or between

mother and son) and also the marriage between relatives in the 2nd degree of the collateral line, that is,

between brother and sister. It was what was prescribed by article 1602 of the Civil Code and is recorded

No article 26 of the Family Code.

Article 26 prohibits marriage between relatives or in-laws in the direct line in its section
a), and marriage between relatives of the 2nd degree of collateral line in its item b). The current
Articles 25 and 26 of the Family Code were reformulated in their wording after the
popular consultation conducted on the project of the Code to make it more understandable.
its content. In the body of these articles, the very concept of
absolute and relative marriage impediment.

The wording of Article 26, paragraph b) has also been changed, as where before it
the "natural or adopted brothers" came to be referred to as "relatives in the second degree"
collateral line grade", which, by virtue of what is already established in Article 8, has
precisely the same reach.
The kinship in the 3rd degree, between uncle and nephew, constituted an impediment.

merely impeditive according to what was provided in item b) of article 1604 of the Code
Civil.
Such impediment is not foreseen in the Family Code.
This issue was the subject of controversy during the popular consultation of the project.

of the Family Code.

There were those who argued that it should be mandatorily introduced
marriage impediment between uncle and niece or between aunt and nephew, given the place
privileged one who has an uncle and aunt in the society where the system predominates
matrilinear.
Such a type of union would be considered incestuous in various areas of law.
costume maker in our country.
Nevertheless, this position did not prevail, because it was concluded that it would not be

it is necessary to prohibit such types of marriage when it was customary law itself that
reject it.
The relative matrimonial impediments are established in norms of a nature
exceptional, as they are of a prohibitive nature. They prevent the celebration of marriage
between certain and specific people and contain restrictions on the right to marry. Now the fact
not prohibiting does not mean, as is obvious, that this type of marriage is
favored by the legislator.
The marriage between aunt and nephew or uncle and niece may, therefore, occur between
couples who do not follow the prevailing norms of traditional law, for which the
the prohibition was not introduced in the Family Code as a marriage impediment.
d) Exercise of functions and right to take action
 We will also see that kinship is relevant in the exercise of certain functions.
of a family nature, such as that of a family council member (art. 17, nos. 1 and 2),
or as a tutor for a minor or an interdicted person (arts. 233 and 235).

The family council member's role is assigned to the relatives of the parties.
in the process and the guardianship primarily belongs, in a general way, to the relatives of
under guardianship.
Similarly, the heirs can propose certain state actions, such as that of
recognition of the de facto union upon the death of one of the partners (art. 123, b)) and
of the challenge to the declaration of affiliation (art. 189°), and the relatives in the direct line have the

right to proceed with the action for annulment of marriage (art. 68, n. 1).
e) Impediments and disabilities
Kinship, on the other hand, hinders the exercise, in certain cases, of the
functions of someone who is invested in them. It can substantiate the judge's disqualification,
in the case of article.

122.°, n.° 1, subsections b) and d) of the Civil Procedure Code, which refer to spouse
to relatives or in-laws in the direct line or in the second degree of the collateral line or to be a cause of

deduction of suspicion with the grounds of art. 127, n. 1, paragraph a) which refers
to the spouse and to relatives and in-laws in the direct line up to the 4th degree of the collateral line and d) that

refers to the spouse and relatives or in-laws in the direct line, of the same Code, in cases
as specified.
The Civil Procedure Code, in its article 618, item b), defines what are the
legal disabilities, for moral reasons, to testify as a witness,
mentioning the descendants and the ancestors.
The Code of Criminal Procedure has rules prohibiting certain relatives from being
witnesses (art. 216, no. 3) and prohibits questions about certain facts to relatives,
relatives and spouses (article 218). Article 125 of the Code of Civil Procedure extends
to the representatives of the Public Ministry and to the judicial employees the articles of
Civil Procedure Code that regulates the disqualifications and suspicions of judges.
f) Relevance in other branches of law
 The bond of kinship is also relevant in the field of criminal law, as it,
in cases where there is a relationship between the defendant and the victim, such fact may constitute

aggravating circumstance, as in the case of the crime of parricide, which provides for the quality of

ascendant of the victim as a qualifying circumstance of homicide - art. 355 of

Penal Code. In the Preliminary Draft of the Penal Code, article 136, subsection a) punishes as

qualified homicide is one committed against an ancestor, descendant,

adopter or adopted or relative up to the 3rd degree of the collateral line.

When the agent has acted in disregard of a relative, this circumstance is considered
in consideration of the mitigation of guilt - article 39, no. 13 of the Penal Code.

Kinship is also relevant in lease law, as the Decree.

No. 43,525, of March 7, 1961, recognizes the right to transfer the lease.
by the death of the tenant, to the spouse, descendants, and ascendants, under the conditions
fixed in article 76.
 CHAPTER 6.
The Affinity
Notion of affinity, lines and degrees
The bond of affinity, according to the law, is the one that links each of the spouses.
to the parents of the other spouse. It is the bond that derives from the alliance between husband and wife

and extends to the family of the other spouse. It does not arise from blood ties but from
wedding.
It's a personal bond that connects a person to all relatives of the
respective spouse.
Article 14 of the Family Code states: 'The relatives of one of the spouses are relatives by marriage.'

of the other spouse.

Affinity begins with marriage and only produces effects from it.
celebration. Unlike what happens, for example, with the establishment of
affiliation does not have retroactive effects.
Affinity does not arise from the natural fact of procreation and has as its cause the act

legal aspects of marriage, constituting a relationship to an external kinship, that is, to

relationship of the other spouse. But since affinity does not generate affinity, it no longer connects the

spouse to the interests of the other spouse.

Affinity reproduces the same lines and the same degrees of kinship.
Article 15 of the Family Code states precisely that affinity is determined
by the same lines and degrees that define kinship by blood ties. Identical
the theory regarding the lines and degrees of kinship was established in article 1585 of the Code

Civil.
ss
Affinity Link
GRANDPA GRANDMA GRANDPA GRANDMA w Av. Av: Av.*

(STEPSON)
Figure 4—Affinity
A married B.
B is the daughter of C and D.

B is the sister of B\B" and B"\

 B is F's mother.
C is the son of Av. and Av.' and D is the daughter of Av." and Av.'".
B' is the father of S, B" is the father of S', and B'" is the mother of S".

Due to the marriage of A and B, A has the following ties

affinity with B's relatives:
A is the son-in-law of C and D who, in turn, are respectively his father-in-law and mother-in-law.

being these your relatives in the first degree of the straight line, which is ascending in relation to A and

descending in relation to C and D.

A is the brother-in-law of B, B' and B'', who are therefore his relatives in the second degree of kinship.

collateral.

A is the stepfather of F, who is A's stepson, that is: A and F are related in the first degree.

straight line, descending in relation to A and ascending in relation to F.

Father-in-law and mother-in-law, stepfather and stepmother, stepson and stepdaughter, and brothers-in-law are

specific designations of the bond of affinity, as for the other relatives, such as
grandfather, uncle, nephew and cousin, the designation is the same as that of kinship,

adding 'by affinity' to express that the bond is not

established by blood ties.
As made explicit, the affinity is not established with the relatives of the spouse but
only with relatives of their own spouse.
This strict concept of affinity is not the one that prevailed in the past and that
still predominates in traditional African society, where marriage will establish
alliances between the family members of both spouses.
Affinity, as recognized by current law, is therefore limited to the bond.
that unites the spouses to the relatives of the other spouse, but is not established between them

the relatives of one spouse and the relatives of the other, nor does it extend to their in-laws.
Thus, the siblings of one spouse are the brothers-in-law of the other spouse, but already they

the spouses of the siblings are not your relatives. Likewise, the siblings of a spouse are
brothers-in-law of the other spouse, but have no connection with his siblings.
 Similarly, if either spouse has children from previous marriages,
these children are not related to each other, and therefore nothing prevents them from marrying

marriage.
In the case of the marriage being declared null, the bond is immediately extinguished.
affinity, for the marriage from which it derived was rendered void.
Similarly, the common-law union that was never recognized is not a cause.
of the constitution of the bond of affinity.
According to the Family Code, affinity is also relevant for the
exercise of certain positions of a family nature, such as that of a member of the council of
family (art. 17, no. 1), the position of guardian of the minor (art. 233, no. 2).
The bond of affinity in a straight line also prevents someone from being called.
to appear as a witness in civil cases in which their relatives are a party, and, in the
criminal processes, the impediment also encompasses those related in the second degree,
that is, the brothers-in-law.

It also constitutes a case of impediment and suspicion of the Judge and the
Magistrate of the Public Ministry, under the terms of the procedural law, already mentioned in the chapter of

relationship.
No cessation of affinity
The bond of affinity depends on the marriage from which it derives,
and according to the conception that a valid marriage should last in principle for life
the life of the spouses, it was understood that affinity should prevail after the dissolution
of the marriage.

The guidance that the bond of affinity endured even after the
Dissolution by death or divorce of marriage is established in article 1585.
Civil Code This is the position adopted by other legislations, such as civil law
French, Italian and Spanish.
In the Family Code project, it was proposed in a different way, understanding...
I know that in certain cases the continuation of the bond of affinity beyond was not justified.
of the dissolution of the marriage.
 The theory of the project proposal was as follows: 'Except for the purpose of constituting
marital impediment, affinity ceases in cases of dissolution of marriage due to
divorce and also in cases of dissolution due to death when the surviving spouse remarries
new news.
But, after the public discussion of the Family Code project, the prevailing opinion was the

opinion that the affinity should continue in all cases after the dissolution of the
marriage, whether it was due to death or divorce.
The fundamental reason was the fear that the dissolution of the bond could come about
to affect the relationships between the relatives of the spouse and the children born during the marriage,

that is, grandparents and uncles in relation to the descendants of the spouse who died or is

divorced.
Although it is recognized that the bond of affinity becomes quite tenuous in
in the case of dissolution of marriage by divorce, and that it does not have repercussions in terms

legal issues in the situation that was at the center of the concerns presented,
for the bond of kinship with the minors is not affected by the divorce of the
country, the project was amended, stating article 15, number 2 of the Family Code that: 'The
affection does not cease with the dissolution of marriage." However, it is noted that in the

recent reform of Portuguese family law the corresponding article 1585 of the Code
Civil has been changed and affinity only ceases with the dissolution of marriage by death.
In any case, it must be taken into account that the dissolution of marriage leads to
that the relatives of the ex-spouse who arise after the dissolution are no longer related to the other

spouse.
For example, the children of the other spouse born before the marriage, or the children
Children born from a third party during the marriage are stepchildren of the spouse.
But those born after the divorce is declared are no longer.
After the dissolution of marriage, the bond of affinity no longer exists.
with the new relatives of the ex-spouse.
 CHAPTER 7.0
FAMILY COUNCIL
Notion and social reach
The new Family Code has given special prominence to the Family Council, which
arises as an auxiliary body of judicial functions, called to intervene in various
actions related to family legal relations.
By assigning such importance to the Family Council, one had in mind the reality
social underlying the traditional Angolan society.
The relief given to it results from the utilization of a family institute of
customary law referred to in the report of the Family Code Project.
It is well known the importance of intervention in family relationships.
family members from both sides, to resolve the disputes that arise in
family life. These are the so-called 'family meetings', which are called to
appreciation and deliberation on issues and disputes that arise in relationships between
members of the family community. They are typically called to intervene the elements
but older people or those considered more suitable by other family members.
It started from the idea that family members are those who, in principle, are best suited.
they must be aware of the problems and the facts that take place within them, their causes and
possible effects and, therefore, will be the ones who can best inform and give an opinion to
tribunal sobre as questões submetidas a julgamento.
The Family Council must, therefore, intervene in actions in which it
discusses the constitution, modification or extinction of family relationships. For that
the reason, the rules that refer to it are included in Chapter IV of Title II,
Constitution of the Family.
The Family Code project referred to the Family Council in two unique instances.
articles. After the conclusion of the public discussion and due to its importance
recognized having this new body in family actions, new ones were introduced
legal provisions that expanded its intervention and regulated the manner
of the appointment of the members of the Council and the respective adoption of resolutions.

Four articles (art. 16 to art. 19) were then dedicated to the institute of the Council.
of Family.
 It was intended to emphasize that family issues are not always within the scope of
exclusively personal of the parties involved and that they have repercussions in the social environment

in which the parts fit.

In the Civil Code, the powers attributed to the Family Council were very
restricted and were foreseen solely in the institution of guardianship, in arts. 1951 and following.
The Family Council was made up solely of two members and the representative.
of the Public Ministry, which he presided over.
Article 1954 assigned to the Family Council the role of overseeing the functions.
as a tutor, must be heard in deliberations on certain issues related to
establishment of guardianship and the administration of the assets of the ward and at the conferences of

interested in the mandatory inventory processes.

Another scope is given in the Family Code to the intervention of this body as
an adjunct to the administration of justice, as its participation with the court will
Certainly, allow for the clarification of the issues that are at the root of the disputes
existing, giving the Judge a version of the facts that is much closer to reality of
that which can be obtained through witness testimonies.
Advisory nature, constitution and appointment of members, functioning
a) Consultative nature
The Family Council is called to assist the court in its function of
administration of justice. It is assigned by law a function as an advisory body in
actions of a family nature.
The deliberations of the Family Council do not have, therefore, an executive nature but

merely opinionated, since, as its designation of council indicates, it is a

a multi-person body that gives its opinion on the case under consideration, but cannot
decide the issue.
However, given the composition of the body itself, the decision that will be made
decision, especially in the case of being taken unanimously, will have undeniable weight in
appreciation that the court will make of the case.

The court is not, however, bound by the opinion of the Family Council, as
According to the principles that govern the judicial function, the Judge only has to
 decide according to your inner conviction, based on all the elements of
constant facts of the records and according to the precepts of the law to which it must obey.

However, if the court understands that it should dismiss the opinion of the Council of
The family must justify the reasons that led them not to accept him; they should also
The tribunal expresses itself on the degree of exemption and impartiality that has been
evidenced by the members of the Family Council when they spoke about the
issues presented for your consideration.

b) Constitution and appointment of members

The Family Council is made up of four members. The Code provides
Family in article 17, paragraph 1 states that "The Family Council is made up of four people.
that are not part of the action.
It is thus said that the members who will make up the Family Council
they should have no direct interest in the decision of the case.
The choice should be made following this order of priority: first of all
the relatives, preferring those of closer degree, then the spouse and the in-laws.
When it is not possible to integrate any of these family members, they may then be
called to be part of the Family Council people who live with the parties,
that is, of your social relationships.
To intervene in the pending action, the members of the Family Council must have
residence in the jurisdiction of the court. It may happen that people from
family members reside outside this jurisdiction of the court or even outside the country.
In this case, the law allows the Family Council to be composed of people who,
although they are not part of the family group, they belong to the circle of relationships of
parts.
Article 17, No. 2 establishes the rule of equitable representation of the members of
Family Council, in order to ensure a fair balance in its operation.
Thus, if it concerns actions in which husband and wife are parties or
Common-law partners, the Family Council shall be composed of:
-by two members of the family of the husband or the partner in a common law union
and two family members of the woman, as happens particularly in actions of
divorce, annulment of marriage, or recognition of de facto union, of declaration
of the presumption of death and alimony between them;
If the action concerns parent-child relationships, such as those of establishment
or challenge of affiliation, exercise of parental authority, adoption, guardianship or alimony
between parents and children:

by two members of the paternal line and two members of the maternal line of the child.
In other actions, particularly regarding alimony outside the cases mentioned above,
by two family members from each of the parties, according to the same order of
precedence. What is intended is that both families, having the man as a reference
and the woman, the child or interdicted or both parties, considering their lineage
paternal and maternal or their respective families are represented equally in
conditions.
The members of the Family Council are appointed by the respective parties; if the
The Public Prosecutor's Office, if it takes part in the action, must also do so, either on its own or

together with the party with whom he/she is litigating.

In principle, the party that intends for the Family Council to intervene in the action
must indicate which members they should integrate, identifying them
in the initial petition, the other party must proceed in the same manner in their defense.
If the party that has the duty to indicate the members of the Family Council
if they do not do so, the court may set a deadline for the parties to do so and, if this is not done
the court itself will appoint them, after collecting the necessary
information. The law also allows the court, proceeding in a similar manner, to replace
the members of the Family Council when necessary.
This is how Article 18 of the Family Code regulates the indication of
members of the Family Council.
c) Operation
Once the Family Council is established, its members must, when
were called to intervene in court, to swear an oath before the Judge,
committing to faithfully perform their duties.
We understand that the provisions of Articles 559, 593, and 635, No. 1, of the Code are applicable.

of Civil Procedure, which requires all those who intervene in court to take an oath,
especially to the experts who swear to faithfully perform their duties. These are duties
of judicial advice that is attributed to you by law and that is covered with all the
relevance in the decision of the case.

When called to play such an important role, "a duty that is theirs
confident," and to express opinions on the ongoing conflict that results in decisive effects for
the parties and even for third parties, the members of the Family Council must prioritize above
all truth and justice and to perform the position in good faith, acting with impartiality and
with a spirit of neutrality, in order to help the
court to have a deeper understanding of the underlying situation
litigation and deciding justly.
The Family Council can only meet when at least
a member appointed by each party, and must make its decisions by
unanimity. When this is not possible, the decision will be made by a majority of its
members—art. 19, n. 1.
When it is not possible to obtain a resolution due to the inability to achieve a majority,
the court must have the content of the expressed opinions recorded in the minutes, in such a way

succinct - thus determined by number 2 of article 18 of the Family Code.

It is thus accepted that each member of the Family Council may express
individually or your opinion, in case it is not possible to obtain a decision
that links the organ.
Mandatory intervention and optional intervention of the Family Council
a new perspective of intervention
a) Intervention of the Family Council
The Family Code project already anticipated quite extensively the
intervention of the Family Council in family-related actions. But, as we have seen,
after public discussion to which the Code project was submitted, its scope was broadened
intervention in certain specific actions, such as divorce proceedings, even if in a manner
optional.
The legal criterion used is the following: the intervention of the Family Council is of
mandatory character, in certain actions specified by law, which means that it must
to be called to intervene in the action, under penalty of procedural nullity. The lack of hearing

of this body in cases of

that the law necessarily requires its intervention leads to the nullity of the records and

consequently of the decision that has been made.

In other actions, the law indicates that the Family Council may intervene.
optionally, whether by initiative of the parties or by initiative of the court itself,
when you consider it useful for the decision of the case.
It is important, however, to pay attention to the fact that, by virtue of article lé.°, no. 2 of the Code of

Family, the optional intervention of the Family Council depends not only on the fact that
as the parties may request but still the court understands that the request is relevant.
The intervention of the Family Council is, therefore, in these cases, subject to prudent
discretion of the judge.
In summary, we can indicate that the Family Council hearing takes place:
1—Intervention with mandatory character
a) in the authorization for marriage of minors when there is an unjustified refusal
by its representative—art. 24, n. 3;
b) the recognition by judicial means of the de facto union - art. 125.
c) in the choice of the child's name in case of disagreement between the parents—art. 133, n.

2;
d) in guardianship, for the appointment of the guardian for minors and for those under legal incapacity—arts.

232.°e235.°,n.01;
2—Intervention with optional nature
a) in divorce proceedings, when it is useful for the reconciliation of the spouses—art. 105.

No. 3;
b) in actions related to the exercise of parental authority—art. 139, a);
c) in actions for the establishment or challenge of affiliation—art. 195.
d) in actions for the establishment of adoption—art. 215.
c) in all other family proceedings, according to the general rule of Article 16, no. 1 b)
New perspectives of intervention
 As already mentioned, the existence of bodies is recognized as necessary.
family mediation that can intervene at a preliminary stage of the dispute, listening to the
parts, proposing new modes of behavior, likely to mitigate the
antagonisms. They appear with a markedly neutral function to pacify
the emotions and clarify the parties about their rights. These bodies are almost always
composed of specialized technicians, such as psychotherapists, legal experts, sociologists, etc.
Between us, the Family Council may soon be replaced by an agency of
mediation and being called to intervene at a pre-judicial stage, that is, before the introduction
in the judgment of any family action, what is about to be implemented.
 CHAPTER 8
The Affiliation

Importance of the law of affiliation; subjects of the legal relationship of affiliation

a) Importance of the right of affiliation
The affiliation is the legal relationship that is established between each person and their

progenitors. Like other family rights, it is of an intercorrente nature and

reciprocal and is established between someone and that man and that woman who the
they conceived.
Filial piety is therefore the first bond, certainly the deepest, between
all those who make up the family relationships.
The family bond is, in fact, the result of a more or less linked connection.
elongated by successive affiliations.
The legal status of the child constitutes a family state that holds importance.
fundamental within family relationships. It is in the relationships of filiation that it manifests
with greater emphasis on the principle of solidarity and cooperation that must prevail among
the closest family members, that is, between parents and children.
When the fundamental principles underlying the Code are stated
It is emphasized in article 4 that children deserve special attention within the family.
family and that it is its responsibility, in collaboration with the State, to ensure them the broadest

protection and provide for your education. This principle is now enshrined in the aforementioned article.

35, No. 6, of the Constitution.

Article 127 of the Family Code states that: "The rights and duties
parents must exercise their authority for the benefit of their children and society.

We are faced with true functional powers that are assigned to the respective
title holder more than this is not the beneficiary.
The State, as a politically organized society, has an interest in defense of
family and especially in the defense of children. This defense encompasses preservation
of your life, health and normal development and even more your defense regarding
to the aspect of their moral, intellectual, and professional formation. Therefore, the State provides a

special attention to how parental rights and duties are exercised,

preventing them from taking on antisocial forms that harm the child and themselves
society where she lives.
The interest of the State in protecting minors and society within relationships
Legal-family interests are safeguarded by the intervention of the Public Ministry in the actions.

judicial matters related to the legal status of minors—enshrined in Law No. 22/12 of the
PGR to which we refer. These powers are currently enshrined in the Constitution
—art. 186, letter b).
We can say that the State controls the way parents exercise their
functional rights and duties, calling the court to intervene when they are exercised
against the interests of the children or when the parents mistreat them physically or intellectually,
you are negligent in your duties, abandoning them and not giving them the attention they deserve

protection and assistance.

As stated in the Law of Juvenile Offenders approved by Law n.° 9/96,
April 19 and Decree No. 6/03, of January 28, which approved the Code of Procedure
Juvenile Court and complementary legislation, the State through its bodies
Judicial and assistance should provide social protection to the child.

The rights of minors deserve special protection from everyone.

state organs with the competence to intervene in matters that concern them,
like the Courts, the Public Prosecutor's Office, the Civil Registry Offices,
the assistance organisms, etc., constituting an area in which is at stake the
public interest.
The role of parents in the upbringing and education of children is considered paramount.
importance, always keeping in mind that parents have the duty to exercise it in the interest
of society in general, collaborating with schools and social support institutions for
childhood and youth in the formation of children and young people.
b) Subjects of the legal relationship of parentage

We can define the legal institute of affiliation as the set of rules that
establishes this specific relationship between parents and children, as well as those that define the

reciprocal rights and duties between each other.

The word affiliation comes from the Latin term filliatio, which has its root in the word
filius, from which 'son' is derived.
 The legal status of a child is thus a permanent family condition.
this situation, viewed in the reverse sense, corresponds to the legal situation of the father and of

mother respectively.
Filiação is, therefore, the legal bond that links the child to each of their
parents.
The legal relationship of parentage unfolds into two bonds, the one that is established
between the son and the father and what is established between the son and the mother.

One can also speak, accurately, of the bond of parenthood and the bond of
maternity.
When talking about affiliation, one generally thinks of biological natural affiliation. But in

our legal system also encompasses adoptive affiliation.

This shapes itself, in fact, precisely in the terms in which affiliation takes place.
natural, with the difference that the adoption bond is caused by its declaration by
constitutive sentence of the bond.
The right of affiliation encompasses the relationships between parents and children, as a rule
starting from the birth of the children, but with greater relevance during their childhood,
covering the so-called rights of minors and the complex of rights and duties that
they constitute parental authority.
These relationships extend in a different form after the children reach adulthood and
they remain as a rule during the lives of some and others.
The legal relationship of parenthood is caused by the natural fact of procreation and not
it depends on the marital status of the father and the mother. We will see that,
when the parents are united by marriage, the law presumes the bond of paternity
in relation to the mother's husband.

The basis of affiliation is essentially biological. But, because it does not always go
to directly determine biological affiliation, the law relies on certain criteria
legal for your establishment.
The Family Code thus removed the system according to which parentage is established.
establishes by the recognition of the parent (father or mother), which would be a voluntary act
this is itself constitutive of right.
 In the previous Civil Code, this act was designated as 'legitimation'. It is now accepted.
the system of affiliation based on the natural fact of procreation, with legal repercussions
of biological affiliation.
The establishment of filiation, however, does not depend on the will of the progenitor.

since it can be verified through legal presumptions, through the declaration of

progenitor, or of the third person, or even arising from a judicial decision that it
recognize.
Right to establish parentage
So that parents assume the fullness of their rights and fulfill their obligations.
duties towards the children, the State has every interest in having it established that
affiliation, whether in relation to the father or in relation to the mother.

The right to establish parentage is now expressly recognized in

art. 129, n. 1, of the Family Code: "Everyone is recognized the right to
"establishment of parentage" which must be regarded as a fundamental right of
human person.
The Convention on the Rights of the Child in its article 7, number 1, states: "The
the child shall be registered immediately after birth and shall have rights from
moment when a name is born, a nationality, and, to the extent possible, a
to know your parents and to be cared for by them.
This article ultimately enshrines the right to identity that belongs to every human being,
distinguishing each person from all the others.
This right is supported by Article 8 of the same Convention, which obliges to
to respect the child's right to preserve their identity, including nationality,
the name eas family relationships.
For its part, the African Charter on the Rights and Welfare of the Child in Article 6.
ensures that the child has the right to a name, the right to registration, and the right to a
nationality.
Decree No. 31/07, of May 14, came in its Art. 1 to determine 'The gratuity
of birth and death registration for early childhood (...) and in the granting of
identity card for minors in the age range provided for in article 7. This diploma
came to take the free registration of birth performed from 0 to 5 years old and the
free issuance of identity cards to minors aged 8 to 11 years.
The right to establish paternity is underpinned by the public interest in
protect the right of every citizen to know their parents and the right to
the affiliation established corresponds to the true natural affiliation. Right today of
newly established in Law No. 25/12 of August 22, 2012, which we referred to earlier.
The establishment of paternal and maternal filiation grants the child the right to
substantial ownership of the parent-child relationship.
The concept of affiliation as we see it today is not what existed.
previously and that opposed the legitimate children (who came from the marriage of
country) to illegitimate children or natural children, these often considered as
children born of sin, the illegitimate children.
Today it is accepted that the family can be formed based on marriage,
like in a de facto union, in kinship based on blood ties, or in adoption, no
there being room for discrimination among its members based on their origin.
Thus, all children have equal rights and duties in relation to their parents.
regardless of the existence or not of a marital bond.
Moreover, the aforementioned art. 35 of the Constitution stated in its paragraph 5: 'The children

are equal within the family, and discrimination against them and the use of
any discriminatory designation related to parentage.
Parents have, in relation to their children born inside or outside of marriage,
equal rights and duties and the Family Code already established in its article 128.
equality of children, stating: "Children have equal rights and are subject to
the same duties towards the parents, whether they are united by marriage or not.
Thus, a unitary concept of affiliation was accepted, according to which
the legal situation of the child is one, corresponding to a single state of being a child.
The establishment of parentage essentially consists of the legal issue of
determine, in relation to each person, their affiliation. If it is true that no one, at birth,
is externally identified as the child of such father or such mother, the legislator has to
to rely on legal criteria that specifically attribute motherhood and the
parenthood in relation to the person in question.
 We know that, regarding the right to parentage, the Family Code enshrines
the following principles:
every citizen has the right to have their parentage established;
The established affiliation must, in principle, be in accordance with the biological affiliation.

or natural.
If the affiliation is not established, the child lacks the legal status of a child and
the father and the mother lack their respective status, being unable to legally exercise their rights and

duties that are assigned to them by law. It is the State itself that seeks to ensure the right to
establishment of affiliation for every citizen.
The substantial ownership of filiation derives from the natural fact that is procreation and
born alive, becoming formal ownership of parentage when it is
registered in the civil registry.
In the field of reproduction of the human species and other living beings, also the

advances in science in recent decades have been considerable and it has

developed at such an accelerated pace that the issues raised, of a legal, social nature
and ethics are becoming increasingly complex.
For what now concerns us, which is the establishment of the legal bond of
affiliation, it is important to accept that affiliation can arise, in addition to the normal form of

carnal union between a man and a woman, and other forms included in the
generic designation of 'medically assisted procreation'.
These scientific methods of procreation arose from the need to make
possible that a man or woman sterile or with difficulty having children or even in
reason for the death of the male partner, may have offspring.
The hypotheses of this medically assisted reproduction are quite diverse:
donation of eggs and/or sperm donation, with the fertilization of embryos
implanted in the uterus of the biological mother;

artificial insemination in which the woman is artificially fertilized, being

that, if the woman is married, it may happen that fertilization is carried out with the
husband's sperm, or from third-party donors, with the husband's consent;
- laboratory fertilization, that is, in vitro fertilization, which gives rise to
"test-tube baby", which is inserted into the mother's womb;
 - situation involving surrogate mothers, surrogate mothers or mothers
substitutes, a situation in which the woman who provides the egg that is fertilized is not the same one.

in whose womb the embryo is inserted and in which the entire gestation and childbirth process takes place;

post-mortem insemination of the widow using frozen sperm of the deceased

husband
It is evident that the various situations that were described require a
legal conditionalism that regulates them, as well as a support of ethical principles in
which are based on and vary according to the accepted convictions by the different
human communities.
Issues such as the right to resort to assisted reproductive technology when
there are no conditions for normal fertilization through sexual intercourse, those of fate to give to the

excess embryos after artificial fertilization performed in the laboratory, go

to be bound by principles as important as determining what the moment is in
that begins the life of

human being. Being that these embryos stored in the laboratory could
to be used to give life to human beings beyond the death of their respective
progenitors.
In the case of carrier mothers, it is important to define whether the child should be assigned to

woman who donated the egg or the one who endured the entire gestation process and in whom
the uterus developed successively until birth. In the case of prior agreement
with the biological mother about the final delivery of the child to the woman who provided the egg and in whose

interest based on pregnancy, how to classify this agreement and what is its validity?
Ethical and legal principles, such as the anonymity of donors,
free donations with prohibition of sale of genetic materials,
the cindibility of consent from the various participants in the procedures used,
are generally accepted. Define what limits to place on the right to procreation that
assists each human being, and if it should be conditioned to the fact of the progenitor
whether heterosexual or homosexual, have been the subject of heated controversies.
The question arises whether the right to procreation should or should not be considered as a

fundamental human right, it should be limited by economic conditionality.

social of the parent. In other words, how to demand so much from both the future mother and the future

for a conscious motherhood and fatherhood, prioritizing the interest

of the child?
We do not yet have any legislation on all this in Angolan law.
complex and controversial matter, and the Family Code only makes a brief reference to it.
artificial insemination that occurs within marriage, stating in article 192, section 2 that:
The husband's mother cannot challenge the paternity of the child conceived by
artificial insemination, to which they have given consent.
It is assumed, in this case, that there has been a donation of sperm by a third party who
not the husband, what is usually referred to as heterologous procreation, coming from a donor
that the husband does not.

But one may question the procedure to be followed if later on the

Husband comes to answer for his paternity.
Given the omission of our legal system regarding medically assisted procreation
assisted, which does not mean that Angolan citizens do not resort to it, we will have
Certainly, we must rely on integrating norms to fill the legal void.
New methods applicable to the establishment of filiation; legal concepts
of the establishment of affiliation
Regarding the substantial ownership of affiliation, the law points out legal criteria that
will help to define how filiation is established. These criteria vary depending on whether
it tries to establish the bond of motherhood or the bond of fatherhood and still
depending on whether it is a child born of marriage or out of wedlock.
The bond of motherhood will be established through the natural fact of childbirth,
which is directly verifiable. But the same does not happen in relation to the link of the
fatherhood,

that has its origin at the moment of fertilization of the egg, through sexual means,

this moment that, in the state of evolution of science in which we find ourselves, is not
still determinable.
Currently, given the extraordinary progress and advancements in genetic science, it is
it is possible to prove with a very high degree of certainty the biological relationship between parents and
children. Each individual has its own genetic-chromosomal system.
different from the other.

Examining the respective cells with a nucleus, the DNA (defined as a

complex macromolecule contained in the cells of each person, more precisely in the
cell nucleus) determines either the identity of each individual or that of the respective ones.
parents.
The gene is a unit in the DNA chain, which is the molecule inside the nucleus.
from each cell. In very simple terms, we have that each human being has in each
a cell has a nucleus that contains 23 pairs of chromosomes that constitute the genome. For
specific exams can be advanced, with a practically zero margin of error, who
it is the biological father and the biological mother of each human being.

The determination of DNA is a true genetic identity card.

There were therefore a variety of situations, which then had their root in the
inability of biological determination of paternity and which used to be synthesized,
although with manifest exaggeration, in the Latin expression mother is always certain, father

never.
The mother may be right and therefore adheres to the rule according to which the establishment

Maternity derives from the fact of childbirth.

This is what is provided in Article 167 of the Family Code, which establishes: "0

The establishment of maternity results in any case, from the fact of birth.
the beginning of civil capacity only starts with the life of the holder. It will therefore be simultaneous.

it is necessary for a certain woman to give birth to a child, which translates to the fact that

birth, and that the child born from this delivery is born alive and has a determined
identity.
The proof of the identity of the person who was born can be done, in the normality of
cases regarding the possession of the status of a child in relation to the mother.

In short, motherhood is established by the natural fact of childbirth and identity.

biological of the child.

There are legal concepts that must be taken into account and that were crucial.
importance for understanding this subject, presenting itself today with much less
relevance.
 These concepts are that of legal child custody and the legal period of
conception. The first concerns the entire institution of the establishment of filiation, whether
in relation to the bond of motherhood, as well as in relation to the bond of fatherhood, as
the material situation of a child. The concept of legal conception period
It is interesting to make the presumption of paternity rule work and it matters whether there is
parents' wedding, whether there is or not.
a) The possession of the status of a child

In the introduction to the study of family law, we have already mentioned that there are

certain factual situations in family life that, due to their importance, the legislator
cannot be ignored, being forced to give them legal relevance.
One of the most important aspects of family law is the possession of status.
of the son.
The possession of state of son means that this person is actually enjoying the situation.
of the child, being in the ownership of the rights and duties that derive from this possession. The possession

of status corresponds to a material and apparent situation of being a child.

the content of the state of possession of a child, according to the ancient commentators, can

to unfold into three distinct and complementary aspects: nomen, tractatus, and fama.
The name {nomen} means that the son uses the family name of the father or the mother.
highlighting its integration into the family and at the same time that this, when directing-
if to your parents, you call respectively father or mother, receiving from them the
child's name.
The treatment (tratactus) encompasses all the specific conduct of a father or mother in
regarding the child, such as the provision of care and attention appropriate to such a relationship

familiar and the corresponding moral and material assistance. This treatment must also
extend to other people connected by family ties, especially through
relationship.
Ayk/tfrf (/£;»*) encompasses the reputation that the son has with the general public,
and especially with the mother's or father's family and their respective social environment, of their

situation of a child. It is the recognition of the situation of a child as such, by the family and by

society.
 To be relevant, state possession must meet certain requirements.
legal. It must be continuous (that is, it should extend over time without interruptions) and must

be constant. It should, in principle, arise at the moment of the child's birth and
proceed in time, peacefully and unambiguously.
The state ownership linked to the existence of a birth seat, that is, to the
formal establishment of affiliation constitutes an almost irrefutable probative index
of the affiliation.

The state possession of a child is a concept that will be applied either in

establishment of the maternal bond, whether in paternity.
establishment of paternity has even greater relevance as it constitutes a
preferential index of biological affiliation.
As we will still see, she will be relevant to the issue of the husband's paternity.
regarding children born to a married woman, and still as a general presumption of
paternity, in the case of children born out of wedlock.
Article 169 of the Family Code defines the concept of possession of status by stating:
Possession of status is established when the child is regarded and treated as such.
by the progenitor and shall thus be considered by the family of this person and by the people in their milieu

social.
b) The legal period of conception
The legal period of conception is a legal concept established for the purpose of
it is possible to attribute to a man the paternity in relation to a certain child. This derives
of the fact of

it is generally not possible to directly verify the fact of

fertilization of the egg, which is a hidden process, hence the need to
indicate the parameters within which it may have occurred.
The legal period of conception is broadly determined by law.
Proven that the alleged father had sexual relations with the child's mother.
character of continuity during the referred period, it derives from this fact the
legal presumption that he is effectively the father. This legal presumption works
 whether in the case of marriage of the parents, or in the case of a simple common-law union,

even if not recognized. This is a presumption of law that can be susceptible to be

dismissed by contrary evidence.
To establish the legal period of conception, one must take into account, as a point
From the match, the certain and determined fact is the date of the child's birth. It will then
count backwards from the date of birth, an immediate period
anterior to 300 days.
Article 166 of the Family Code defines this concept and assumes that the conception
The child's verification occurs in the first 120 days of the 300 that precede its birth.
Generally speaking, it is expected that the gestation period of a human is confined between
minimum of 6 months and a maximum of 10 months.
The countdown to establish the legal limits of conception operates from the
following form:
a) the day on which the birth occurred is not counted, as per the rule of art. 279.
item b) of the Civil Code, a rule that applies to all deadline calculations
fixed by law under the force of Article 296 of the same Code;
b) a countdown of 300 days is made from the date of birth and goes
thus establishing the maximum gestation limit for the child;
c) they are counted, from the date thus found, 120 days forward, establishing
the minimum gestation limit, which cannot be less than 180 days.
The legal period in which the conception of the child may have occurred is, thus, the entire

period of the first 120 days that goes from 300 to 180 days prior to birth.
It is accepted that fertilization could have occurred on any day during that period.
what will make the presumption of paternity work, which is assumed to have operated ornni
best moment during this period of time.
Let's take as an example the case of a child born on December 1st
a non-leap year. To determine the legal period of its conception, we will have
to find out what the 300th day before your birth is, not counting the day in which
it happened.
The maximum conception period, that is, the three hundred days, will be retroactive.
fall on the previous February 4th. Then, count 120 days forward from that date and
it is June 2nd. The legal period for conception, in this case, is that which
took place between February 4 and June 2 inclusive.

This time period is not of a rigid nature and is usually set having in mind
counts the interest of the son, admitting that conception may have occurred within it all.
this period. It is possible, in concrete terms, to determine the likely date of conception, through the

determination of the period in which the sexual relations occurred that could have
after fertilization.
Currently through forensic examinations conducted on the person of the newborn
It is possible to determine the duration of your gestation with a limited margin of error.
These exams, which should focus on weight, height, head circumference, and others
aspects of their physical and neurological development can retrospectively reach the
fixation of the time of conception within a probability margin of about 2
weeks of difference.
Consequently, the determination made a posteriori that the date of conception
and the duration of the pregnancy was more or less prolonged, it may lead to the removal of the assignment of

paternity to a supposed father. But if, during the entire legal period of conception, the
relations between the mother and the supposed father were maintained, the presumption operates in full.

In setting the legal period of conception, the legislator aimed for the time
the normal gestation period for a human fetus is at least 180 days, about six months, and,
at most, 300 days, about 10 months. Exceptionally, it is allowed that the period
the gestation may be less than 6 months or extend beyond 300 days, possibly,
according to some, reaching 302 or 310 days.
If that happens, it will have to be the interested party (the child or any third party
legitimately interested) in providing proof that the conception occurred outside of that
period. This is what is stated in paragraph 2 of article 166 of the Family Code. Here, an inversion occurs.

the burden of proof and the court, according to the evidence that is produced, may establish the
likely date of conception outside the legal period.
The determination of the probable date of conception can be requested in a specific action.

proposal for this effect, or raised as a matter of essential fact in action that
to establish or contest paternity, whether to conclude that it is
it must be proven, whether to dismiss it in the specific case.
Filiação where there is marriage of the parents

In the case of the parents' marriage, parentage is established by legal presumption.

The marriage of the parents constitutes the legal form of family constitution. Therefore
however, the law derives from it, in relation to the husband and wife, simultaneously,
(5) Guilherme de Oliveira, Legal Criteria of Paternity, p. 321. Coimbra,
1983: "The gestational age (...) reducing the legal period of conception to a space
of a much shorter relevant time and managing to prove that the cohabitation between the mother and

the defendant was verified at that time, the plaintiff clearly adds the causal value of
cohabitation proven relative to birth(...).

the establishment of parentage regarding children conceived and born in the

constancy of marriage.
This is the rule contained in Article 163 of the Family Code: '0 this-
the affiliation of the child conceived and born during the marriage,
even if it is annulled, it results regarding both parents from the fact that
"birth, except in cases provided for in this law." The fact that marriage may come to be
cancelled does not change the legal effects it produces in relation to the children.
The rule for attributing paternity of children born to a married woman to
respective husband has the deepest historical roots and is common to all systems
legal. It is the principle of favor legitimitatis that aims to protect the offspring born to a woman
married and born and conceived in the continuity of marriage. The legal presumption that the
Husband is the father, as already expressed in Roman law, which stated: pater is est.
who demonstrate marriage.
This principle is based on the fact that married life between husband and wife
establishes between both a full communion of life underlying the very substance
wedding materials.
The married woman must maintain sexual relations with her husband, fulfilling the
marital debt, being certain that she is still bound to the duty of fidelity. Therefore
dual situation derives the legal rule from which it is inferred that the paternity of the children
Children born to a married woman should be attributed to the mother's husband, since it is to be accepted.

the exclusivity of the relationships maintained between the spouses.

The duty of fidelity of the woman to her husband derives by operation of law the legal rule of
that the husband is the father of the children born during the course of the marriage.

This general rule only allows for exception when the possession is not established.
status of the son between this one and the mother’s husband.

In legal systems that accept the classification of filiation into filiation

legitimate and illegitimate, it is understood that legitimate parentage is indivisible, because,

Established the maternity of the married woman, the paternity of the husband is also established.
this, for no one can be a legitimate child of a woman united in marriage to
determined man without this man being the father.
Or, conversely, if the husband is not the father, the child will necessarily be illegitimate.
If the presumption of paternity of the husband has to be set aside, the child will no longer have the

statute of legitimate child to be linked to the mother by a bond of natural filiation.

In Angola, as we have seen, the distinction between legitimate and illegitimate affiliation has left

of relevance, although the existence of marriage between the parents will cause it to derive,
by the force of law, the bond of paternity in relation to the mother's husband. It is the protection

of the child that is envisioned when the rule contained in article 163 of the Code is established.
of Family.
According to the content of this article 163, it is necessary to distinguish between the child

conceived and the eye born in the constancy of marriage.

Now I am interested in invoking the concept of the legal period of conception for better understanding.

we will apply the provisions of this article 163.

a) Child conceived and born during the marriage

A child born during the marriage period is considered to be conceived within that period.
starting from the 180th day after the celebration of the marriage act. This is because it should be taken into account

It states that the minimum gestation period set by law is 180 days.
The child born before 180 days have passed since the date of marriage
(let's say, within the first 179 days after marriage) it is considered
conceived before marriage. The birth during the duration of the marriage,
180 days after the celebration of the marriage, grants the child full rights to
assignment of the bond of maternity and paternity in relation to both spouses.
b) Child born after the marriage has been dissolved or annulled
A child born during marriage is still considered to be conceived during the marriage.
up to 300 days after the dissolution or annulment of the marriage.
If the dissolution of the marriage has occurred due to the husband's death, the 300 days
they are counted from the day following the date of their death.
If the marriage has been dissolved by divorce, it can already be understood that it is not

the date of the dissolution of the marriage by a final judgment that will serve for
set the period of 300 days.
In principle, the count of the 300 days should start from the date of the transit.
in the judgment of the sentence, according to article 81, no. 1 of the Family Code. But
can the personal effects of marriage cease before its dissolution is declared
when the end of cohabitation is established in the verdict. In the case of divorce by mutual consent.

agreement, the provisional divorce granted at the conference of the spouses, makes
suspend the duty of cohabitation of the spouses—art. 94 of the Family Code.
In the case of a contested divorce, either spouse may request that it be established
in the sentence that declares the divorce, the date of the end of cohabitation and the request that they cease,

from this date, the effects of marriage. This is stated in number 2 of the cited
art. 81.°. What is fundamental in each case is to determine whether during the legal period of
the couple was or was not separated in fact.
Thus, if the duty of cohabitation between the spouses has ceased, or if the
Cohabitation effectively ceased due to separation in fact; it is from that date that we have
what to do the count of the 300-day period. In these cases, although it still exists

the formal bond of marriage, it has indeed ceased to exist as it has come to an end
full communion of life.

The child born up to 300 days after the cessation of cohabitation benefits from the
presumption of paternity of the mother’s husband. This rule, as we have already emphasized, is susceptible

to be removed by contrary evidence that can be demonstrated before

 0 court that the pregnancy in concrete lasted more or less time, through
examinations performed after the birth of the child.
The woman may also use means of evidence aimed at demonstrating that,
even after the cessation of cohabitation, she resumed having sexual relations with her husband.
In this last case, the legal presumption of paternity of the husband will cease to function.
mother, with the burden of proof shifting, it is up to the woman to prove the paternity of the
husband. These principles apply mutatis mutandis to a marriage that has been annulled.
by final judgment.
c) Child conceived or born before marriage
A child is considered conceived before the marriage of the parents if born up to the
the first 179 days following the marriage. Let's assume the child was born on
June 1 of a year when parents A and B got married on March 1
of this year.
The legal period for granting is confined between a maximum of 10 months and a minimum
of 6 months. Now, in this hypothesis, we would only have the period that covers the months of
March, April and May, which leads to being certain that the child was conceived before the
marriage, a fact that immediately dispels the presumption of paternity of the husband such
as configured by law. For the same reason, the same happens when the child is born.
before the parents celebrated the marriage.
Any of these situations is very common today. Often, the fact that the
a woman finding herself pregnant before marriage leads to hastening the marriage so that
the child is born after the marriage of the parents. The children conceived or born before the
marriage were, according to the criteria of the Civil Code, in the situation of illegitimate children.
The marriage of the parents operated the legitimization of the children. The effects of legitimization,

provided for in article 1875 of the Civil Code, were those of granting the child the status and the

title of legitimate child.

The Family Code addresses this matter in its article 164, encompassing the same.
dispose in case the conception or birth of the child occurred before the
wedding celebration.
 This provision no longer aims, as is obvious, to grant to the children
conceived or born before marriage the status of legitimate child, which does not have
today any legal shelter.
With this, one could see the reception of a very generalized situation of existence.
of children whose protection is intended to be assured, as it simplifies the way of
establishment of your affiliation with both parents, if this, for any reason,
still if not operated. Thus, it is allowed that, by declaration made in the process
marriage preliminary, the spouses must mention if there are any children already conceived, in

in the case of unborn children or children already born before this date.
If such a declaration is made, the Civil Registry Conservator shall draw it up,
concomitantly with the marriage record, the birth record or records
respecting the children. This in case the respective birth certificates do not have
they were registered, because if they already exist, their affiliation in relation to one or
to both spouses whether or not parentage has already been established in relation to
to both parents.
The provisions of the Marriage Act Regulation apply fully here.
Decree No. 14/86), which requires the parties to declare whether or not they have children born
before the celebration of the marriage (art. 3, n. 2, letter e)). Considering that there is
often neglect by parents in registering their children, this way
allows, in an expedited and simplified manner, to obtain the statement that leads to

establishment of the child's affiliation in relation to both parents, if not

have checked before.
d) Son born from the mother's new marriage
This issue will be addressed regarding the non-existence of impediments.
merely impeding designated as "interim period" we can however clarify
What is the reason for the legal provision contained in Article 165 of the Family Code.
It may happen that a married woman dissolves her marriage and goes to marry.
new marriage before 300 days have passed since the date of the dissolution of the marriage
previous. It may even happen that a married woman may enter into a second
marriage without dissolving the previous marriage, that is, in a situation of bigamy.
In such situations, we face conflicts of paternity presumption.
 Now, within the rule prescribed in Article 163 in conjunction with that of Article 166.
No. 1, both of the Family Code, children born up to 300 days after the dissolution of the
Marriage presumes children of the mother's husband. But if the mother has contracted a new one.
marriage immediately following the dissolution of the previous marriage, given that the Code of

The family has not established any interim deadline, there may be a double presumption of

fatherhood.
According to the concept of the legal period of conception that matters for defining
What should be understood by 'child conceived during marriage' if the woman comes to
to enter into a new marriage and if the child is born after 180 days after the celebration of
second marriage and within the 300 days following the date of the dissolution of the marriage
previously, two presumptions of paternity will come into conflict regarding this child,
the first husband's and the second husband's.
In the case that the second marriage was conducted without the first having been dissolved.

previous marriage, we will be faced with a marriage that is affected by an irremediable flaw
due to the lack of marital capacity of the bride. But, even if the marriage is
cancelled, this fact does not alter the presumption of paternity in relation to the second
husband. As we will see regarding the effects of annulled marriage, they are
safeguarded by the provisions of Articles 71, paragraph 3 and 163 of the Family Code,
the rights of his children born.

Consequently, due to the force of these legal provisions, a conflict may arise.
presumptions of paternity. To resolve such a conflict, one must take into account what is provided
Article 165 of the Family Code. This provision contains the legal presumption that,
in this case, parenthood should be attributed to the second husband and not to the first, and this is because

a matter of realism, given the relationship with the husband of the last one
Marriage should be the one that is most likely to lead to conception.
Although Article 165 of the Family Code does not state it explicitly, it must be
understand that the presumption of paternity of the second husband is a legal presumption
only and as such can be challenged in a proper action of challenge. In this action of
an appeal may be intervened by anyone who has a legitimate interest in it, that is, the child,
represented by the Public Prosecutor's Office or by themselves, when of legal age, and the first or

the second husband, to dissociate or claim paternity of the child.

Parentage without the marriage of the parents
When parents are not united by marriage, the law does not operate.
relatively to them, the establishment of the paternity bond by the fact of
birth, therefore it is necessary to operate its establishment through legal presumptions,
when such is the case in question.
a) Link of motherhood
Article 167 of the Family Code contains the general rule according to which the
the establishment of maternity results, in any case, from the fact of birth,
as already mentioned.
There is, therefore, a need to prove that a woman gave birth to a certain child, as well as the

identity of the child. By birth, it should be understood as the complete separation and being alive.

of the fetus from the womb.

If the fetus separates lifelessly from the womb, it is a stillbirth, which does not arrive.

the legal personality. The proof of the child's identity is generally done in the
cases, for the possession of the status of a child, manifested in the proper treatment of a child that
the mother dispenses him. But, in the absence of possession of state, this evidence can be by others

means (documentary evidence, by witnesses, expert etc.).

The false statement about the existence of a childbirth by a woman who does not have.
Giving birth constitutes a criminal offense, the crime of childbirth assumption, provided for in art.

Article 340 of the Penal Code. The false indication of birth or death of a child is also
criminally punished, under the terms of article 341 of this Code.
The draft of the Penal Code also includes the crimes of registration of
non-existent birth—art. 0 226.° and the crime of supposed childbirth—art. 227.°.(5)
ARTICLE 340.
Assumed birth and substitution of infant
1. The woman who, without having given birth, claims another's childbirth as her own, or who having given birth

A living or dead child, replacing it with another, will be sentenced to a greater prison term of 2 to 8 years.
 § Io. The same penalty shall be imposed on the husband who is aware and consents.

ARTICLE 341.
False statements regarding the birth or death of an infant
The false declaration will be punished with imprisonment of 2 to 8 years and with a fine.

a country of a child, made with or without their consent, before

competent authority and with the purpose of harming someone's rights, and likewise the
false declaration made before the same authority and with the same purpose, of birth
or the death of an infant who never existed.
ARTICLE 226.
(Non-existent birth record)
1. Anyone who declares a non-existent birth in the civil registry is punished with a penalty of

prison sentence of 1 to 3 years or a fine of 120 to 360 days.

2. If the statement is made with the intention of harming another person, the penalty is
prison from 2 to 6 years.
ARTICLE 227.
(Supposedly)
Whoever assists in childbirth that is not their own is punished with a prison sentence of 1 to 5 years.

The provision of article 167 is quite clear in stating that the establishment operates,
in any case, by the fact of birth, and this has the effect of making produce the
legal effect of the establishment of the bond, regardless of the fact that the mother has
you are not of marriageable age.

Even if the mother is not of legal age, motherhood is considered established.

because it does not depend on the will of the parent, but rather derives from the legal fact of

birth.
b) Parental bond
The law establishes two cases of presumption of paternity, even if there is no
marriage between the mother and the alleged father.

These rules of presumption of paternity are expressed in article 168 of the Code.
of Family, which uses a less conclusive form than that contained in article 167.
regarding the establishment of maternity.
 Article 168 states that parenthood 'can result', an expression that indicates a
simple legal presumption, the admission of the possibility that it is so, and that the
the legislator wanted to embrace in the law.

It is a presumption ope legis, which the law formulates for the benefit of the attribution
from parenthood to children born to unmarried parents. We are faced with a provision
innovative that was not part of the previously existing legal system. This provision
The Family Code aims to implement the legal presumption of paternity benefit.
in two very common situations among us that in principle should lead to
consider paternity established.
This is the case of the status of child possession and the existence of a de facto union between the

mother and the alleged father during the legal conception period.
In any of these cases, the child or their representative only needs to make the
proof that one is in possession of the status of child, or that their mother lived in union
de facto with the one who intends to be your father, during the legal period of conception.
It is not required, as was the case in the Civil Code in the case of 'cohabitation.

"notable" or "long-lasting concubinage" referred to in article 1862, that the situation of

de facto union if it had lasted beyond the birth of the child.
For the application of the provisions in article 168, paragraph b), it is enough that there has been

cohabitation situation during the legal period of conception. It is not necessary for the
common-law union has not even been required to meet the
legal assumptions for it to operate its recognition.
The scope of this article 168 is precisely to allow to benefit from
legal presumption of paternity in relation to the mother's partner for the children

born from all existing de facto unions in our country, including the unions
polygamous, which cannot be subject to recognition.
The strength of these legal presumptions is, however, not sufficient to prevent the purported

a father may distance himself and come to deny his paternity. Simply put, if he wants to do so,
he will have to prove that he is not the father.
The removal of the presumption that derives from the possession of the status of a child, as stated

from the abundant jurisprudence established on the matter regarding the provisions
relevant provisions contained in the Civil Code, is not a matter of easy application.
 The custody of a child can only be revoked if the supposed father proves that, for
a decisive and convincing reason led him to withdraw the treatment he was giving to his son
in this regard. In other words, the father will have to prove the fact that altered the situation.
before which he considered the child as his and which led to the modification of the ownership of the
possession of the state of a child that was attributed to him.

In the case of presumed parentage derived from a de facto union, the alleged father will also be.

that will have to prove that the mother had sexual relations with another man during the
legal period of concession, or that the de facto union did not occur during that same
period, or there was a physical impossibility for the child to be conceived by him.

Establishment of filiation by declaration

It is not exactly a form of autonomous establishment of
parentage, as the declaration of paternity or the declaration of maternity must coexist
whether or not there is a marriage of the parents, and in general, it coexists with the
other rules for the establishment of filiation derived from legal presumption.
In fact, when parents are married, they can and should come to declare the
birth of the child, which can even be done by just one of them. The declaration, in terms of
of the Civil Registry Code, which applies subsidiarily, is mandatory for the parents and
even for third parties mentioned in the law. As a declaration made by a
citizen before a public authority, the civil registry official, she is subject to
to the rules of criminal law in the case of fraud.
The declaration must therefore attest to a real and not fictitious situation.

Decree-Law No. 33,725, of June 21, 1944:

ARTICLE 22.
Whoever declares or falsely attests to a public authority or official
in the exercise of functions, identity, status, or any other quality to which the law assigns
legal effects, whether own or others', will be punished with imprisonment of up to 6 months.

The Family Code distinguishes between the declaration made by the parent and the
statement made by third parties. This statement only becomes final after the deadline has passed
for challenge, with the challenger being, depending on the cases, either the person
indicated as the parent or the mother’s husband.
 The father or mother have the right to declare their situation to take on the
substantial ownership of the parental or maternal bond.
However, this right is subject to legal restrictions.
In the case of a child born to a married woman, it is no longer allowed, except as a title.
exceptional, as we will see later, that another man other than the husband comes to declare
your paternity.
The other case occurs when the adoption bond is established between the child and
beyond, who takes on the legal position of adopter.
As we will see when studying the institution of adoption, it creates a bond between the adopted and

the adopter finds a legal situation identical to that which binds the child to the father or mother

natural.
Now, if a child is adopted for whom the...
parental or maternal link, the law does not allow that, once established
the adoption, let the natural parent declare that they are the father or mother of the adopted (art. 202.)

of the Family Code.

In the case where the parents are not married, the declaration of paternity or of

Maternity can be done together by both, or separately. A statement

does not depend on the other and either one can, indifferently, be done first
place.
Such is not the case in various legislations that, in the event that the parents are not

married couples do not allow the declaration of paternity to be made in the first place,
even if it is done separately by the father, without the mother giving her consent to
declaration.
Between us, it was understood that these restrictions would harm the situation of the son and

that is why the declaration of paternity should not depend on those who consider themselves
natural progenitor, under any condition of the mother's consent.
The Family Code does not restrict the right of the father or mother to declare
individually in your capacity as a parent, not needing mutual authorization
to do so. The declaration of affiliation, according to the provisions of articles 171 and
172.° of the Family Code can be done by
 The penalty will be imprisonment for up to 1 year when the statements are intended to be

laid out in official document.

$2°. If the falsehood referred to in the body of the article and § 1 has been committed
for negligence a fine of up to 1000 KZ R will be applied.
mother and by the father and also by a third person. But the declaration by a third party is

subject to certain legal conditions and has no definitive value, unless it is not
challenged.
Declaration of the parent
When the declaration of parentage is made by the parent, whether it is the father or the mother,

it has its own legal nature and produces specific legal effects, distinct from the
statement made by third parties.
The declaration of affiliation that the Civil Code referred to as 'profiling' had
a legal nature different from that which is currently enshrined in the Family Code.
This does not consider it already as a unilateral act of recognition and attribution of
link of motherhood or fatherhood, for it is not through this that the bond of
affiliation is constituted.

In the conception of the Family Code, the declaration made by the

progenitor as a voluntary and personal legal act, but not a legal transaction,
given that it is not constitutive of rights and the effects it produces are not determined
by the declarant himself, given that they are established in the law. It is a declaration of awareness.

issued by the parent, "a statement with the legal nature of a confession."
She relies on the declarant's conviction regarding the motherhood or fatherhood that will be.
It can thus be said that we are dealing with a legal act in the strict sense.
The declaration has retroactive effects as they will take effect from the date on which it
operated the birth, date on which the legal relationship of filiation began.

It is a personal act, as it can only be carried out by the person themselves or by a third party who

to be constituted as an attorney with special powers for the act. It is still an act
voluntary, which must stem from the free and informed will of the person who issues the
statement. If there is a defect in the statement due to essential error, coercion, or falsity, the

declaration can be annulled.

 Once the declaration is made, it is irrevocable, so it cannot be
be withdrawn by the declarant, as stated in Article 173 of the Family Code. It presupposes
the law that concerns an exact confession made in accordance with the truth of the facts.
Article 170 of the Family Code refers to the establishment of filiation.
operated by declaration in cases where none of the
circumstances provided for in the previous articles, or when it is necessary to set aside the presumption of

paternity provided for by law.

The declaration of affiliation is, as in the generality of acts provided for in the law of
family, a formal act by which the progenitor acknowledges themselves as such.
Article 175 of the Family Code establishes the legal forms that must be
restate the declaration:
a) declaration before the civil registry authorities, which must be recorded in a register
signed by the declarant;
b) statement before the court, which must be put into writing, in accordance with
established in article 7, paragraph 2 of Law no. 1/88, which approved the Family Code;
c) statement in an authentic or notarized document drawn up by the notary,
it being necessary, in this case, that it be a document with in-person recognition
of letter and signature—art. 375 of the Civil Code.
The declaration of the parent before the civil registry official constitutes the way
most common in recognizing the bond that connects him to the child, and it can be included in the

birth certificate can be done later.

The statement made before the court presupposes, as is obvious, that it is
proposal in court for the establishment of paternity.
If the party against whom the action was proposed in the capacity of presumed parent,
to accept the attribution of maternity or paternity assigned to him, the judge of the case
it must send a document in the records that contains not only the identification of
progenitor like that of the child and in which the declaration of parentage is formally received.
The declaration made before the notary may consist of an authentic document (such as
public deed or will) or authenticated document whose content aims
expressly this statement.
 There has been discussion in the doctrine about the declaration of affiliation made in a will.

will lose its validity in the case of the will being revoked. The Family Code does not
expressly addresses this issue, but, given the way article 175 is written,
we understand that if the will is valid regarding the testator's capacity and the form
used, and as long as the expression of will is free from defect, the declaration made about
the affiliation contained in this authentic document maintains full support for the

establishment of the respective bond.

In summary, we can conclude that the declaration of affiliation is a personal act,
voluntary, formal and irrevocable.
It often happens that, when a man is getting married
with a woman who already has a previous child for whom there has not yet been
establishing paternity, the husband, even though he is not the biological father, makes the declaration

to be the natural father, in a statement contrary to the truth, and with the complicity of
mother.
The aim is to integrate the child into the new family being formed, relinquishing
of an adoption process that would be suitable. It is parenthood by 'complacency'.
It is intended in this way to establish a relationship of parenthood.
socio-affective that is not based on biological parenthood.
The ability to issue the declaration is established in Article 174 of the Code of
Family, which allows it to be done by those who have the minimum age to contract.
marriage. They are therefore able to make the declaration to the woman over
15 years old and the man over 16 years old, in accordance with the provisions of the
item a) of article 174 of the same Code.
In the case of the parent's incapacity, the declaration must be provided in accordance with the terms.

general law, as provided for in item b) of the same article 174. It is, however, about
act of a strictly personal nature, for which the declaration always comes from the person themselves

progenitor, even if he is smaller or incapable.

The declaration of maternity can be established by the mother herself at any time.
time (art. 171, no. 1 of the Family Code) and the declaration of paternity can be
established by the father at all times (art. 172, no. 1 of the same Code). It also allows
the declaration of paternity in relation to the unborn child, provided that identified
the person of the mother (article 176).

This possibility of making the declaration at any time must, however,

understood within the legal terms, because, besides the case of the constitution of the bond
In addition to the adoption mentioned earlier, there is another restriction provided for in article.

177.°, n.° 2, regarding an adult child, as in this case the declaration cannot be made
without the child's consent.
It is understood that if the parent did not fulfill their duty to declare their
quality of father or mother, up to the child’s adulthood, that is in the childhood phase and
youth when it was most needed, this must be heard regarding such a statement, and,
according to your interest, to come or not to give your consent to such act.

If, however, the son has passed away and left descendants, they shall be,
by themselves or by their legal representatives, who must give consent - art.
177.°, n.° 2, already cited. The reasons for such legal conditionality are the same as those in n.° 1,
therefore it was understood that the right to consent is transmitted to the heirs of the deceased child
or not in the declaration. If the child has already passed away without leaving descendants, it must

it is understood that the statement can no longer be issued because there is no one to provide it

consent.
In the case of incestuous affiliation referred to in Article 183 of the Family Code,
both statements can be issued, but the one made second will be
considered secret. The incestuous affiliation is the result of the fact that father and mother

we shall be prohibited from marrying due to ties of kinship or

affinity in a straight line or kinship in the 2nd degree of the collateral line.
The guidance of article 183 is to allow the establishment of paternity and
maternity, but with the caveat that one of these ties, regardless, must be
considered secret to not reveal before the child and third parties the situation of incest
the immorality in which procreation took place.
Notwithstanding, the obligation remains, according to paragraph 2 of article 183.
the provision of food by the second parent in relation to the child, being still the
relevant affiliation for the constitution of marital impediment.
 Statement made by third parties who are not the parent
The Family Code has allowed the declaration to be made, under certain circumstances.
legal conditions, by a third party who is not the parent.
With the expansion to third parties of the possibility of making such a declaration, there was

in mind to make it possible to establish parentage in a greater number

of cases.
Given, however, the delicacy that may arise from a statement made by a third party, the

Family Code grants, in return, the broadest possibility of

challenge to the person who has been indicated as the parent and who does not accept it
such imputation. Nevertheless, if the parent is aware of the declaration of
maternity or paternity assigned to you and not challenge it within the legal period, the
the declaration becomes fully effective, producing the same legal effects attributed
the statement made by the parent himself.
The law establishes different legal conditions in the event of a declaration of
maternity or a declaration of paternity made by a third party who is not the parent.
Regarding the declaration for the establishment of maternity, it governs the
second part of art. 171, nos. 1 and 2 of the Family Code. It can be performed by
third party declaration, provided that the following conditions are met, as stated in no.
1 of this article:
a) to be made by a third party who is aware of the fact of the birth;
b) to be done within 3 years after birth;
c) that is done during the mother's life.

According to number 2 of this article 171, the declaration of someone other than the mother

must be notified to the mother.

The notification shall be operated by the Civil Registry Official according to the
form prescribed by law, allowing the alleged mother to contest it or not.
Regarding the declaration of paternity, it can only be made by another
person if this is the child's own mother. It is a provision of a character
truly innovative. By means of such legal permission, the law allows that a woman
who gave birth to the child shall make the declaration, attributing paternity to whom she
understand being the natural father.

This statement made by the mother of the child is subject to legal conditionality.
rigorous and can be freely challenged by the alleged father.
Article 172, No. 2 of the Family Code establishes the following conditions for
paternity of the child can be declared by a third party:
a) that the declaration is made by the child's mother;
b) that it be done within one year after birth;
c) that it should be done during the father's lifetime;

d) that can be personally notified to the person declared as the father.

This way, it prevents the obligation for the person indicated as the alleged father.
to become aware of the attribution of paternity that is made to him and is limited to
legitimacy to make the declaration to one's own mother, shortening the deadline to one year.
within which the declaration can be made. Serious is the responsibility that falls
about the mother of the son, because, by making such a statement, she knows that she may end up being

challenged by the interested party, which leads to the subsequent necessity to prove the fact
through legal means.
Any of these statements made by a third party who is not the parent do not have the
affirmative force of the fact that is attributed to the declaration of the parent himself, because it is

the challenge by the alleged parent is allowed through a simple declaration of opposition.
Article 178 of the Family Code allows, without restrictions, that the declaration of
the affiliation made by a third party may be challenged, imposing only a time limit for such.
the challenge must be raised within one year after the indicated person
as a parent to have knowledge of her, but it cannot be done through the registration process
civil after 5 years from the date on which the registration act was recorded.
It is agreed that if the person indicated as a parent did not dispute,
together with the Civil Registry Office, the quality that was attributed to him by a third party,
from father or mother, it is because they give their consent and accept the statement made.

If 5 years have passed since the declaration in the register, for a matter of
stability of the child's situation, which must be protected, as the declaration of contestation
it cannot be done with the Civil Registry authorities, as we have already mentioned.
 Notwithstanding, the last part of art. 178° is quite clear when it safeguards that,
want in case a year has passed since the date of knowledge of the declaration, want
in the case that 5 years have passed since the date the registration act is drawn up, the
pretend father who wants to sever the bond of paternity or maternity,
You can always resort to judicial appeal.
Declaration of waiver of the presumption of paternity of the husband of
mother
The establishment of paternity for the children of a married woman is attributed to the
mother's husband, in accordance with the rule established in Article 163 of the Family Code. Such
the disposition is of a generic nature, but it may be subject to exceptions, as provided in the final part

of this article 163., which, as an exception, allows the legal presumption to be set aside.
It is important to keep in mind that, by allowing oneself to deviate from the legal presumption of

fatherhood of the mother's husband, as we saw before, if they are anticipating situations of

de facto separation of spouses in which, as a rule, cohabitation has ceased, or in which no longer

there is a true union of life between the spouses.

Considering certain exceptional conditions in which a woman, even though
formally married to a certain man, may have actually begun a marital life
with another, the law allows the establishment of the true parentage of the child according
with the natural bond.
Exceptional rules have been established, which allow, within certain
conditions, whether for the married woman or for the person considered to be the natural parent,
make the declaration contrary to the presumption of paternity of the husband.

It should be noted that the same power is not granted to the husband, who, if he wishes
to remove the presumption of your paternity in relation to the child born to the woman with whom
For a married person, it will be mandatory to resort to an action to challenge paternity.
Articles 180 and 181 of the Family Code, which allow for the declaration of
paternity contrary to the legal presumption, therefore took into account situations in which the

spouses had been living separately in fact and that prevailed in the past when the
divorce was harder to obtain. It is acknowledged that they may still arise in the present,
precisely when spouses establish new unions, without having the caution of
dissolve the previous marriage in a timely manner.
There were, therefore, pragmatic reasons that led to the admission that,
regardless of the filing of a lawsuit, as happens in general.
two legal systems, would allow the married woman or the natural parent
remove, by simple declaration, a legal presumption with the force of that which
The derivative of regrapater is he whom marriage demonstrates.

This is a process that must be carried out at the Civil Registry Office and that
will allow the true identity of the parent to be restored, removing a legal attribution of
fatherhood covered by the bond of marriage.
However, it is important to consider that there is a strict legal conditionality to be
observed for the declaration to be valid.
Only the married woman and the parent have the legitimacy to make the declaration.
natural, according to the provisions of No. 1 of art. 180 and No. 1 of art. 181.
The declaration is only considered valid and effective if the following conditions are met

conditions:
a) there is an absence of state possession between the child and the mother's husband;

b) that the declaration may be personally notified to the mother’s husband;

c) that the husband does not challenge her within a period of one year.
The first condition (the non-existence of state possession between the child and the husband)
of the mother) is of substantial nature and of decisive character, as it must be based on a

real and concrete situation that the declarant must be aware of, and that cannot
falsify, under penalty of liability (civil and criminal) for false statements.
If the husband recognizes and treats the son as such, and if, therefore, he has
established between both the possession of state, already the declaration of the removal of its

parenthood cannot be established either by the woman or by the one who considers himself
natural progenitor.
In this case, the legislator chose to prioritize the stability of relationships.
family members specifically to social paternity, postponing possible fatherhood
biological or natural. In fact, if the mother's husband considers the child as his and by
once your paternity is established, it can only be dismissed through
self-action, which is the action to challenge the paternity of the husband.
The second condition set forth in the law is that the declaration of removal from
the husband’s paternity can be notified to him personally. This prevents
that such declaration be made in the event of the husband's death or absence.

Finally, the last condition for the declaration to become effective is

in the fact that, once the notification is made personally to the husband, he does not come
to challenge within the legal deadline, which the law sets at 1 year, both in paragraph 2 of article 180 and in

.° 2 of art. 181.
The silence of the notified party during the entire period granted by law for the

challenge is understood, by way of legal presumption, as proof of its

agreement with the statement made about the renunciation of your paternity in
relationship to the child born of a woman with whom he is still united by marriage.
Article 182 of the Family Code exclusively assigns to the husband the
legitimacy to make the objection and defines the manner in which it should be presented.
The form of the declaration is the same as provided for in Article 179., relating to
challenge to a statement made by a third party who is not the parent.
That is to say, it is accepted that the appealing husband may use any form of

oral or written challenge, it is only necessary that the civil registry official
ensure the identity of the challenger. If there is opposition to the declaration by the husband,
the law considers the declaration made by the mother or by whomsoever is believed to be nonexistent

natural progenitor, officially registering the birth of the child to

fatherhood of the mother's husband.

If this happens, the legal provision that requires that the ...
the presumption of paternity established in relation to the mother’s husband can only be
dismissed by means of a judicial challenge. In other words, it will have to be in court, which
it will be necessary to investigate the true paternity of the child.
Legal actions of affiliation
The actions related to affiliation are of two types:
- actions for establishing affiliation - intended for determination
legal bond of paternal or maternal affiliation;
 actions to contest the established affiliation link but that
understand to be contrary to biological truth and therefore must be replaced by
true.
The trend in doctrine nowadays is to consider that the two types of actions
should not be subject to any statute of limitations or prescription, as they have the
to ensure the safeguard of a fundamental human right, the right to
individual identity of each person. It thus dominates in the doctrine that the norms that
the time limit for proposing these actions should be considered as wounds of
unconstitutionality.
On one hand, it is important to defend the child's interest in knowing their true
progeniture, but on the other hand it is also important to defend socio-economic stability.
emotional foundations on which family relationships are based.

(?1 Guilherme de Oliveira—cited work, p. 465: "It is necessary to organize a

a regime that opens up to biological truth and provides an opportunity for each individual to discover

your place in the dc kinship system; but certainty and security are also values
of social organization.
Given the already stated principle of the right to establish parenthood, the law
allows with the greatest scope that, in case it is not verified through presumptions
legal or by declaration, it shall be the court to establish this affiliation by sentence.
Article 184, n. 2, of the Family Code allows for the initiation of the action:
a) to the Public Ministry unofficially, up to 3 years after birth;
b) to the son, on his own or through his legal representative while he is a minor or
for
who is appointed as your special curator for this purpose in the case of
incapacity.
The action proposed by the son can be filed without a time limit, and
regardless of the fact that the Public Ministry has failed in the action on its part
proposal—art. 186.

The action may be based on the existence of legal presumptions.

(like the possession of state of a child, the de facto union between the mother and the alleged father,
marriage promise, written by the parent, simple relationships of love affairs, etc.,
because the law does not specify any specific ground. The cause of action can only be
is the natural fact of procreation from which filiation automatically derives.
The Family Council may be called to intervene, either by official decision of
court, at the request of either party, as provided in Article 195 of the Code
In parentage actions, the Court must, either ex officio or at the request of the parties,
whenever he deems it appropriate, to listen to the Family Council.
And it is well understood how, in this type of actions, it can be beneficial for you
intervention, clarifying to the Court about the actual situation of the child and the intended

parents. As for the means of proof, article 196 expressly opens the broadest
availability of investigation, stating: 'Can the Court in paternity actions,
to resort to all means of evidence, namely:
a) From the declaration of the parties, and their relatives or in-laws in any degree;
b) From hematological, somatic and other examinations.
This means that from the confession to the statement by testimony of the party of
people prevented from intervening as witnesses, witness testimony, documents,
recordings, photographs, and forensic medical examinations, everything may be taken to court
as a means of evidence. The principle of freedom of evidence applies.
By the way, nowadays for the safeguarding of the right to identity, considered as
fundamental right of the human person, the acceptance of all means of evidence in these
actions are considered a legitimate and inalienable means of the child.

The doctrine classifies means of evidence into two types:

—Historical evidence.
Genetic immunological tests.
As we mentioned in the introduction of this Chapter, the advances in genetic science
they came to supplant the other tests that were used circumstantially for the
determination of parentage and that made rivers of ink flow provoking
very abundant case law on the subject.
Until a few years ago, the expert evidence used in the actions for the establishment of
affiliation (which in the Civil Code were referred to as actions for the investigation of maternity)

paternity) were mainly the forensic medical examinations of a hematological nature.

 The exams may focus on the person of the supposed mother, the supposed father, and
of the child and may have as their objective only issues of a medical, biological or nature.
anthropometric. Issues such as determining generative impotence or coendi by
the man's part, or the impotence to conceive on the woman's part, can be taken into account
of false attribution of paternity or maternity.
In actions for the establishment of paternity, it was used as a means of defense
from "investigated" to the so-called exceptioplurium concubentium, it was alleged that
the mother of the son has not maintained strict fidelity during the period of
relationship with the supposed father. Today such a claim is not acceptable, which should not be

to be considered as a true exception in a procedural sense, which by itself can

to declare the action unfounded.

If it is proven that the mother of the child had sexual relations during the
legal period of conception with the alleged father and with other men, the determination of
Fatherhood will be more difficult, but it will depend on more convincing means of proof to
the judge to formulate his decision.
Since the beginning of the 20th century, hematological exams have predominated or

serological, as mentioned in article 196 of the Family Code and that were
evolving with the improvement of the systems used. They were focused on certain
existing genetic markers in the blood, which are classified into blood types that
are divided into four main large groups.
It was necessary to determine the respective blood groups of the mother and the presumed
father and son, to ascertain whether he could or could not be the son of both, as the
the characteristics of the child must necessarily derive from the combination of those of both

progenitors.
Through an ever-increasing number of classification systems used,
It became increasingly possible to exclude the assignment of motherhood.
or parenthood, being this the one that is usually the subject of the largest number of cases
brought to the judicial instances.
It was, in short, through negative nature exams that one could conclude by
impossibility of A being the father of B, or the possibility of A being the father of B.
 But currently the situation has reversed and negative evidence has become possible.
obtain a positive response to the question posed.
In the current state of genetic science and through the knowledge of DNA(8) of
Each living being can determine the link of heredity.
Regarding obtaining evidence through the hematological-genetic exam to be conducted.
for determining the respective genetic patterns of the child and the alleged
parents raise issues that can only be resolved by the force of law,
and which we understand to be of evident urgency.
The first, which is of a procedural nature, relates to whether it can be expected that in the actions

for the determination of affiliation, a preliminary admissibility phase will be established

of the request, in which the person indicated as parent may immediately request the
DNA testing of the participants in the action. Such a procedure may be legitimized.
when there may be doubts, justified or not, on the part of the defendant about
if it is to attribute the quality of your child to the claimant and obtain a practical certainty of

whether or not there is a bond of motherhood or fatherhood.

For the examination to take place, it is generally necessary for the individual to
the defendant shall have a collection of either saliva or blood performed, provided that

usually this type of examination is conducted in public agencies equipped for

the effect. Now the question that has generated the most controversy relates to the definition
legal about whether the Judge of the case can or cannot order the obligation of the intended
progenitor, to submit to the examination for DNA determination even if it is against the
your will.
In this case, two fundamental rights held by the
parties in dispute, on the part of the alleged parent the right to freedom and integrity
physics by providing the elements of collection. From the child's side, the right to their identity.
and to get to know your parents.

According to one point of view, the defendant will not be required to submit to
examination and coercive means that would compel them cannot be used. However, when
it is understood that the exam cannot be imposed coercively jurisprudence almost
uniform, has been considering that in these cases the judge of the case understands that it is
unjustified the refusal of the defendant to submit to the
 DNA—Deoxyribonucleic acid that forms the basis of information
genetics.
You can draw your conclusions against it from this behavior.
of the defendant.
But in the opposite position it has been argued that the DNA examination must be able to

to impose coercively on the defendant even against their will. Firstly,

place due to the collection of material to be done (a little saliva or blood)
not to achieve the examined in its physical integrity and that is in proportion to the end to
that is aimed at the right to personal identity of the claimant, which is a right
fundamental that assists every human being whether constitutionally or
internationally, regarding your status as a child.
Apparently, there would only be a need to question whether the act of collecting material
biological should be considered a violation of the physical integrity of an individual or to
your right to freedom (...) this violation is not arbitrary as it presents itself as
absolutely necessary for the exercise of a constitutional right, the right to
personal identity (...). As recognized by the Committee of Experts for the right to
Family of the Council of Europe, in the current state of knowledge, the DNA test is the
better evidence in a process of establishing affiliation based on a derivation
genetics (...) the realization of this type of exams does not constitute any violation of the
European Convention on Human Rights as it is in accordance with the best interests of
child (...). The collection of blood by means of a prick on a finger does not constitute
violation of physical integrity, moreover it is considered in accordance with the Constitution the collection of

blood in the case of driving under the influence

The execution of tests of this nature, which involve complex equipment
Adequate and technical is recognized, it is now within reach through Angolan justice.
what constitutes an indisputable advance in determining DNA as the key to the
determination of affiliation, which satisfies the public interest and the protection of the State in

situations of this nature, expanding the use of this means of proof.

 Formal ownership of parentage
The legal bond of parentage is established, granting the child ownership.
substantial from the situation of a child, this needs to be converted into ownership
formal, which is reflected in the entry in the civil registry. From the establishment
The public and formal nature of the affiliation in the birth registry results in the child holding the title.

formal of affiliation.
Article 162, No. 1, of the Family Code states that the establishment of filiation
it is proven by the act recorded in the civil registry office. This is provided for in the Code of

Civil Registry, art. 1: "The following facts are the object of civil registration: (...) b)
Affiliation. As we saw earlier, the evidence of the facts subject to registration "(...) can only be

made by the means provided for in this Code"—art. 5.

The birth certificate is an administrative act that does not have nature
constitutive. It contains a declaration made by one or two people who
intervene in the act. This declaration, as we have seen, can be made by a parent, by the
two parents simultaneously, or even by a third person. In this entry, a
public authority issues an administrative act of the birth of a person, by means of
of the receipt of a declaration, a declarative act that should not be confused with it.
0 civil registry employee receives the declaration of the fact of birth which
if made by someone who declares themselves a parent, it simultaneously produces the effects mentioned earlier.

described in terms of birth and in terms of the bond of affiliation and also gathers the
other identifying elements related to the person who was born.
As we have already pointed out, the declarant is subject to criminal liability for
crime of falsehood when intentionally making a statement contrary to the truth whether regarding
on the fact of birth regarding the identity of a parent who is not the one who gave birth
the registered. But the declaration of affiliation, maternal or paternal, can be made
subsequent to the birth declaration and being subject to annotation to the declaration of
birth.
The obligation of registration for proof of affiliation means that one cannot
to invoke before third parties the legal status of a child without the formal title of filiation. There is

who understands that registration constitutes a true condition of eligibility for the
affiliation.
 In 1998, a nationwide campaign for the Civil Registry took place.
free for Angolan children up to the age of 17, with the aim of supplying the
difficult situation created by the lack or disappearance of the registration of many thousands of
children as a result of war, the mass displacement of populations and also of
widespread practice of the behavior of not submitting the declaration on time
births to the Civil Registry offices.
However, it is necessary to take into account that the declarations of paternity and maternity

made in these birth seats by someone other than the parents and not
confirmed by these, serve exclusively as elements of 'identification'
personnel," in accordance with Article 4 of the Executive Decree of the Ministry of Justice No.

3/98 of January 16.

Effects of the establishment of parentage
a) Date of the production of effects
Once the establishment of paternity is operated, it will have retroactive effects to
date of birth, as explicitly established in Article 162, No. 2 of
Family Code.
The son is granted ex tunc status as a son, since the legal cause of filiation
it derives from the natural fact of procreation and birth with life. Therefore, once
upon verifying motherhood and fatherhood, the legal relationship between the child and their parents

Parents are considered to have begun from the moment of their birth.
b) Parent-child bond
From the establishment of parentage arises, as a primary effect, the acquisition of
legal situation of a child with the global acquisition of rights and duties that belong to them

they correspond and are of a personal, property, and moral nature. On the side of
Country, these also play a role in the status of father and mother.
From this bond of affiliation, it follows, ipso facto, the establishment of the others.
family ties of blood and affinity with their respective relatives and in-laws of
both parents, through maternal and paternal.
c) Right to a name
The child has the right to use the surnames of the father and mother, as established.
No article 133, number 1 of the Family Code.
 Law No. 10/85, of October 19, which regulates the Composition is in force.
Name and what came to revoke Law No. 10/77, of April 30, allowing a greater
flexibility in choosing the first name and family names or nicknames. As much
for proper names, at least one of them must be in the national language or in the language
Portuguese (art. 1, no. 3), allowing up to two words.
The surnames must necessarily belong to the paternal or maternal family.
(art. 1st, no. 5) and it may go up to three words. The order of the assignment of surnames does not
is provided for by law, but according to the predominant use among us, the paternal surname

appears in last place.

The choice of the proper name must be made by agreement between the father and the mother. In

In case of disagreement, the name will be chosen by the court, after hearing the Council.

of Family—art. 133, n. 2 of the Family Code. This is a case of

mandatory intervention of the Family Council, which is justified to assist the judge in
to render an equitable decision for the case at hand.
The Civil Registration Code (art. 120) assigned first to the father and only
afterwards the mother had the obligation to make the birth declaration, and it was the declarant who

had the right to declare the name of the child—art. 129.

In this way, the father was privileged over the mother regarding the choice of the name of the

son, a situation that was altered with the coming into force of the Family Code,
that puts the parents in a position of equality with regard to all rights and
duties related to the child.
This precept, which is discriminatory concerning the rights of the mother, must be
considered as injured by unconstitutionality in light of the provisions of article 35, n.º
3, of the Constitution and art. 127, no. 1, of the Family Code.
d) Right to nationality
As a consequence of greater prominence, we have the right to Angolan nationality.
of origin.
All nationality laws that have been in force since Independence
they have always favored nationality based on the rule of jus sanguinis, being
considered as a full-fledged Angolan citizen the child of an Angolan citizen
(man or woman), whether born in Angola or abroad.
 The Nationality Law in force, Law No. 1/05 of July 1st, provides in Article 9:
I am an Angolan citizen by origin.
a) the child of a father or mother of Angolan nationality born in Angola;
b) the child of a father or mother of Angolan nationality born abroad.
It is a very comprehensive law under the criterion of nationality transmission.
by hereditary means, prioritizing the citizenship quality of either parent.
In private international law relations, the applicable law must be the law
national of the son at the time of birth.
Articles 56, paragraph 2, 57, paragraph 2, and 58 of the Code are to be considered revoked.
Civil that contain discriminatory material regarding the mother by privileging the law.
national of the father and therefore should be considered as wounded from
unconstitutionality.
e) Right to social security pension
The legal situation of a child has repercussions throughout the entire legal system and

specifically in the area of social security.

Law No. 7/04 of October 15, Basic Law on Social Protection, states:
Article 6: They are bound to Mandatory Social Protection under the condition of
dependents of the insured: (...) b) The children under 18 years of age or disabled,
as well as children aged 18 to 25 who are attending university accordingly
with the current legal provisions in the field of benefits.
Article 6 of Decree No. 38/08, of June 19, which regulated this Law,
are bound to the Mandatory Social Protection as dependents
the insured: b) The children under 18 years of age or invalid, as well as the children
from 18 to 25 years old with university attendance according to the provisions
current laws in the field of services.
Presidential Decree No. 8/11 of January 7, 2011 regulates Article 18.
of Law No. 7/04 of October 15 and constitutes the following subsidies included in Article 1.
the Legal Regime of Family Benefits:
Maternity allowance;
Breastfeeding allowance;
Family allowance;
 Funeral subsidy.
The first three subsidies are granted respectively to the working woman,
to the children of the insured from birth up to 36 months of life, to the descendants
of workers and pensioners of old age from 3 years to 14 years of
age and the last subsidy to the descendants of the insured and to the spouse of the insured and the

pensioner for the deceased's old age - art. 3.

 CHAPTER 9.0
Paternal Authority and Its Exercise

Scope, ownership and duration of parental authority

One of the fundamental effects of establishing the filiation bond is the
the assignment, to the father and mother of minor children, of parental authority. It aims to
prosecution of the primary purpose of the family cell, which is conception, creation, and education

of children. The set of specific rights and duties assigned to parents for raising
the education of children is, let's say, of a natural order: it exists in human societies
since its inception.

In Roman law, it was called 'patria potestas' or 'potestas genitoria'.

characterized by the absolute power of the father over the children, which extended throughout the

life of the son, regardless of the son's age and whether he is married or not.
In the Civil Code, the legal expression used was 'parental power', meaning that
it was a power especially exercised by the father, who was the hierarchically highest element
superior within the family, whether in relation to the wife or in relation to the children. To the mother

a secondary position of merely being an advisor in matters that said

respect for children.
In European law, a new term is sought—"parental authority"—,
to prevent the concept from containing a discriminatory sense towards the mother.
More recently, the expression parental responsibility is favored, which
considered to be "more rigorous and more suited to the evolution of social reality and
legal (...) of the parents on equal footing and in agreement with the minor children if
we will find invested in a mission to pursue their interests, feeling-
both responsible.
Family Law
Your Recommendation No. R(84)-4 defines: ZmLdespZZlão the set of duties.
the moral and material well-being of the child, specifically taking care of the child

maintaining personal relations with him, ensuring his education, his

legal representation and the administration of your assets.
 Jigo dc Family adopts the expression 'paternal authority', seeking to go to
equality of parents and indicate that it should be exercised based on both parents.
the aridity of paternal authority belongs, in principle, exclusively to the father;
exercise may, however, depend on the specific circumstances alone. The paternal authority
it is therefore a right granted to the father and to the personal nature, irrevocable and
non-transferable. Exceptionally, the paternal right is renounceable—it is what happens in the case
from the constitution of adoption.

functional nature, as it is attributed to the father and the mother, not in your own task as if

Article 127, paragraph 2 of the Family Code states: 'The duties must be exercised'
in the interest of the children and society." The 'es' are linked to the legal purpose.
provided for in the law and does not hold a purpose.

or duty, an office, a task, which is not exercised over the son.

the interest of the parents, in their own interest, of paternal authority, of the interest
of the child, constitutes abuse of rights and must compel the D of the education and
assistance from the Public Prosecutor's Office, more in defense of the minor. Given the superior
In the interest of the defense of minors, paternal authority is, in general, in most systems ...
the surveillance and control of society and the state organs, the country does not show itself
In the task of educating your children, you may have to take certain measures.
what can change the court intervention '8° 'i Family*la provides Succ. » request from the Ministry

The life of 61ho7qlV"^ SSÔe*<1UeOSPaÍ*tCnham tomad°:m general. ^ m Csivas

mtcressc of the minor c dad°—- **
Apply a punitive measure ^T * moral training' H1' S^MoroM ,qUC C
3 inibits "total or partial of parental authority. In summary: it can be stated that the
parental authority is a power-duty assigned to parents but must be exercised in
benefit of children, being under the control of the State through its organs of
administrative and judicial nature.
The legal cause of parental authority lies in the natural incapacity of the being.
Human beings are self-sufficient in their early years of life, both physically and intellectually. She

represents the most relevant expression of the duty of solidarity, of mutual assistance and
moral and material assistance that should prevail in family relations.
 Paternal authority aims, in the legal sense, to compensate for the incapacity to exercise.
of the minor, who, due to his inexperience, lacks someone to guide him in his upbringing
personal and to those who take care of their property interests, through legal representation
that is attributed to parents to act on behalf of their children.

Parental authority is exercised, consequently, during the minority of the

son and ends when he reaches adulthood. Adulthood is reached, according to the law
Angolan, at 18 years old, as provided by Law No. 68/76, of October 12, is now
enshrined in art. 24 of the Constitution.
The United Nations Convention on the Rights of the Child states in its article.
1. That "(...) a child is considered any human being under the age of 18 years."
Article 134, number 1, of the Family Code states that paternal authority is
exercised during the minor age of the child.
It lasts throughout this period of the child's life and can only be extinguished by
two causes, as provided in paragraph 2 of the cited article 134.

the death of the parent;

the establishment of the adoption bond.
Death is a natural fact that puts an end to family relationships of a certain nature.

Folks. The constitution of the adoption bond will create a new bond of affiliation between
adopter and adopted and as such will terminate the bond of natural affiliation. The parents are,
however, called to give their consent to the adoption art. 202.
Family Code.
For their part, the duties of children towards their parents are expressed in the article.

Children owe respect, care, and assistance to their parents. These are duties and
permanent extensive to the entire parent-child relationship both during the less ^ as
after reaching adulthood.
Parental authority consists of a set of powers, duties and
of the prerogatives that affect the physical and moral person of the child and on the
your heritage.
With a view to pursuing the ends for which authority is attributed
paternal, the law provides for the duty of obedience of children to their parents. It is established
Article 137 of the Family Code establishes the general principle that children must
obedience to parents. However, the law establishes the guiding principles of this duty, as in
Article 137, item 1 mentions that: "Minor children must obey the legitimate
paternal authority, which emphasizes that this authority must be exercised
within the legal purpose for which it is assigned (the interest of the minor), as if not
for it is deemed illegitimate and as such there is no need to demand obedience from the child.

According to paragraph 2 of article 137: "The measure of its development

the personality and will of the children should be taken into account by the parents.

It should be emphasized here the necessity of applying one of the fundamental principles.

of the Family Code (provided for in its art. 2°, n.° 2 and art. 6°), which refers to
contribution that all family members must give so that each one can
fully realize your personality and your skills, taking into account respect
for your personality, the special protection of the child and the spirit of collaboration and
mutual aid.
The constitutional reform introduced by Law No. 23/92, of September 16,
previous to article 30, number 2, that the State shall promote harmonious development of
the personality of children and young people; and article 31 explicitly enshrined the
principle that the State, the family, and society should promote development
harmonious with the personality of young people and children.
No. 80 (Childhood) of the current Constitution is enshrined in number 2: "The
public policies in the fields of family, education, and health must safeguard the
principle of the best interest of the child as a way to ensure their full
physical, psychological, and cultural development.
By the way, the United Nations Convention on the Rights of the Child in its article.
12.°, n.° 1, already grants the child "(...) the right to express their opinions freely
about all matters related to the child (...)" and in number 2 the expression
freely express your opinion on all matters that concern you in "(...)"
judicial or administrative process (...)" and "right to have their opinions taken into account
in accordance with your age and maturity.
We are faced with a new conception, opposed to that of authoritarianism and prevalence.
the will of the adult over that of the child and the young, which was previously dominant.
 Parents must respect the personality, abilities, and personal inclinations of
son, not imposing rules of conduct or options in your life, such as the choice
of religious faith, of profession, of the celebration or not of marriage, etc., that contradict
will of the son.
The content of parental authority includes powers-duties of a personal nature,
of a property nature and representation of minor children.
Personal nature content
The content of personal nature of parental authority is expressed in Article 135.
of the Family Code, according to which "It is the duty of parents to guard, supervise and
0 support for minor children and the provision of care for their health and
education ». It is important to analyze each of these powers-duties described in the law:
1—Power-duty of guardianship
This power-duty involves, in its materiality, the direct responsibility of the child by
country and is therefore linked to the child's own physical person. The duty of custody or
custody is of the utmost relevance and it can be said that the other rights derive from it
parental duties. This right is once again enshrined in article 9 of the Law on
Full Protection of the Child (Law No. 25/12 of August 22, 2012,
D. R. No. 162). Parents must keep their children in direct cohabitation with them,
protecting them in their physical and moral integrity and integrating them into your household

family in common living.

The right of custody thus consists of the obligation and the right of the child to
to live with the parents in their residence. This power-duty is provided for in article 136.
of the Family Code: 'Minor children must live with their parents, and may not
shall leave the residence of these without their consent.
By virtue of the duty to guard, parents are invested with the right to establish the
domicile of the minor child. The domicile of the minor is, as a rule, that of their representative

legal, as provided in article 85, paragraph 1, of the Civil Code.

The removal of minor children from the parents' residence without their consent
it constitutes a criminal offense that can be classified as the abduction of minors
 —art. 342.°, no coercion of the minor to leave the parents' house or
tutors
—art. 343.°, or in the concealment, exchange or misappropriation of minors—art. 344.°

all from the Penal Code.

The Draft Penal Code provides in Article 231 the crime of Subtraction or
refusal of delivery of minor.
Parents can request police intervention for the delivery of their child who
illicitly taken from your custody.
Conversely, the law does not allow parents to remove their minor children from
family residence, whether through eviction or any other violent means or
fraudulent. Article 18 of the Juvenile Court Law, Law No. 9/96, of April 19,
characterizes the violation of the duty of social protection for minors and includes it in its item b)

as a violator of this duty: "The order for the minor to leave the family residence does not
authorized by the Juvenile Court, by the parents, guardians, or any person who
have the least in your charge.
The abandonment of children also constitutes a criminal offense, being one of the
forms of the crime of abandonment of family.
Parents can, however, delegate their powers to a third party.
putting the child in school, at a relative's house, or social institution, as long as it is
suitable for the entity to whom the minor is delivered.

Then the exercise of the duty of guardianship continues through this

intermediary. This delegation of the power-duty of guardianship by the material delivery of the child

The third party is an act of temporary nature and always revocable.

2—Power-duty of vigilance
The power-duty of vigilance assigns to parents the duty to oversee the integrity.
physics and morality of the children, keeping them away from the dangers that may affect them in their own

person or in their moral formation. Parents must protect the child in their integrity
physics, not allowing him to be exposed to dangers from which, due to his
minority, not being able to defend oneself, preventing them from suffering injuries or that their

life runs some risk.

 CHAPTER 9.0
Paternal Authority and Its Exercise

Scope, ownership and duration of parental authority

contravention procedure for violation of the social protection duty, in case the conduct
do not integrate a more serious offense.

The Customs Code approved by Decree-Law No. 5/06, of October 4,

Article 175, paragraph 1, holds parents responsible for tax and customs offenses committed.
for the children/
3—Power-duty to provide support and health care The duty of
support and provision of healthcare is part of, as well as the duty of education, of
general duty of providing child support that parents owe to their child. It is the duty
primordial of parents in relation to their children, recorded not only in article 135 but also
no article 249, number 1, of the Family Code.
The obligation of alimony is a form of the duty of material assistance and it consists of
include the provision of food, clothing, housing, and education, as detailed below
we will see. This obligation rests with the father and the mother and is of a joint nature, which

It means that it can be required in full from either parent. If it is a

the sole parent who pays it will have the right to recourse against the other. Between the parents
there is a joint responsibility.
The amount of this obligation varies according to the economic and social situation of
country, for the child must be guaranteed a standard of living identical to that of their

parents and proportional to their income. The support should not,

to limit oneself to the necessary quantity for the mere subsistence of the alimented.

The provision of health care (also included in the general obligation to

food) involves everything related to the physical and mental development of
minor, protecting it from diseases through vaccinations and other means of sanitation and
proper preventive and curative medical assistance. This right has been newly enshrined
no art.° 14.° of the cited Law no. 25/12 on Protection and Integral Development of
Child. It is the parents' responsibility to give authorization for treatments or surgical interventions.

to which the minor shall be subjected.

 Customs Code:
ARTICLE 175.
Parents or legal guardians of minors are responsible for the infractions.
customs duties committed by them.
■
We understand that it is beyond the powers of the parents to authorize that the minor child be

object of sterilization or that is an organ donor to a third person given the nature
of physical mutilation from such interventions.
4—Power-duty of education
The primary purpose of paternal authority is the upbringing of the minor child, who in
The first responsibility lies with the father and the mother. Article 130 of the Family Code, already mentioned,

consider the moral formation and professional preparation of children as citizens

valid and socially useful" as the most relevant social purpose of paternal authority.
(No. 2).
The power-duty of educating children is in accordance with the capabilities.
and the resources of the parents, as mentioned in number 3 of article 130, which implies that the more

elevated for the living standards of parents, greater quantity they must provide to
children for your training and education.
The child's right to education is enshrined in Article 28 of the Convention on
Children's Rights.
It is precisely in the altruism and spirit of selflessness of parents that it is rooted

possibility of the less privileged generations allowing their descendants

overcome situations of cultural disadvantage in which they find themselves.
In the effort of educating the child, the father and mother should collaborate with the

state bodies dedicated to the education and assistance of minors, given that
the importance and complexity of the task do not allow it to be carried out solely by the parents.

cable. But on the other hand, parents cannot relegate these responsibilities to state agencies.
fundamental tasks.
Parents can choose their child's education and guide them in their options.
school and professional. The duty of education thus encompasses the duty to provide
instruction to the minor, requiring the enrollment of children of school age in
establishment of education and the fulfillment of the obligation to attend school.
Parents who prevent their child from attending school should be penalized, or who
they are negligent in how they accompany their school-aged child.
The National Regulation was approved by Dispatch No. 30/08, of January 24.
of Literacy and School Failure, which allowed for the recovery of students who
they had interrupted their training within the normal education framework.

The trend in various legal systems is, as has already been mentioned, in the direction
of the State to control parents in the way they take care of the instruction and education of
children, establishing oversight channels through the competent authorities

school and social assistance agencies.

The education of the child also involves their gradual integration into the execution of

daily household tasks, according to the lifestyle habits of each people, such as
form of learning and transmission of cultural values.
The power-duty of education encompasses within itself the power of command over the
children, from which the power to correct children derives. As the old saying goes, "who
"Give the bread, give the education." The power of correction allows parents to sanction their children.

imposing punishments on them.

Punishments take on various forms: corporal or of another nature,

such as deprivations of activities or benefits given by parents, etc.
The issue of applying corporal punishment to minors is highly controversial.
to what extent can they be applied by the parents themselves.
In fact, the concept predominates that violence against children is a scourge to
combat and the Convention on the Rights of the Child in its article 19, no. 1: "(...) mandates
adopt appropriate legislative, administrative, social, and educational measures to
will protect children against all forms of physical or mental violence (...)
The application of corporal punishment by parents, relatives, or teachers, or others,
must always be considered illegal. Effectively from a new concept of
domestic violence, approved by Law No. 25/11 of July 14, are prohibited all
the acts carried out within the family, in schools, and institutions that involve all types
of violence whether physical, verbal, or psychological.
 The methods of correction for minors vary according to the customs and practices of each.

society, with some being more repressive and dominated by authoritarianism, others more
liberal and open to non-coercive methods of education.
The right to correction whenever it involves violence is punishable by law, as
harms the minor, in their physical or psychological integrity.
If, on the other hand, the children prove to be difficult to correct or with special
vocation for the practice of antisocial behaviors, parents can request the court to
imposition of correction measures that may extend to hospitalization in institutions
educational or appropriate assistance, as established today in article 14, paragraph
c), from the Law of Minors (Law no. 9/96, of April 9), which provides for the application of
social protection measures for the minor "who is shown to be severely maladapted to discipline
from the family and the community.

Content of a patrimonial nature

1—Ordinary administration of the children's assets

Parental authority generally encompasses the legal powers of administration of the

assets of the children—art. 138 of the Family Code. The administration of the minor's assets
It is a right and a duty that the father and mother must exercise together.
In exercising this right, parents have the duty of diligence, as imposed by the article.
144.°, n.° 1, of the Family Code.
This administration is focused on the conservation and normal fruiting of
benefits of the smaller ones, taking advantage of the fruits and yields they produce, without

change its structure and substance. The acts to be carried out must aim at management
the conservation of heritage, are therefore acts of ordinary administration.
The right to manage assets involves the right to the legal enjoyment of the assets.
of the children (art. 143.° of the Family Code). It is understood, by means of this assignment, that

the parents bear the necessary expenses for their children's food and, if excessive
they revert in favor of the parents as compensation for the charges of
administration. In the current Portuguese Civil Code, the child's income must be
applied to your own sustenance and in the needs of the family unit.
 The right to the usufruct by the parents cannot, however, be alienated or encumbered by

own or in a lawsuit brought by third parties.

Related to the right of usufruct is what is stated in the last part of number 1.
Article 144 of the Family Code, according to which parents "are not obliged to provide
accounts of your administration of the children's assets.

In practice, it would be difficult to impose on parents the duty to account for income.
of the children's assets, since they all live in a common economy and taking into account
the principle of solidarity that governs family relationships.
Parents can be held responsible for the acts of management that,
intentionally or with gross negligence, act to the detriment of their children" (art.
144.°, n.° 2 of the Family Code). In the event of a violation of the duty of diligence in
management of the assets of the minor child, in addition to civil or criminal liability of the
progenitor, they may be deprived of their administrative powers and these may be
attributed to the other parent or to a third party appointed as guardian.
This decision must be made by the court, within the scope of measures of
inhibition of parental authority that we will study later.
2—Benefits excluded from parental administration
The legal administration of the children's assets may, however, in certain cases, not
belong to the parents. This is what is observed, according to the provisions of Article 142 of the Code

of Family, when it concerns:

—of assets excluded from the administration of the parents by express imposition of

third or of the court;

—from the product of the work of the children.

In the first case, there are the assets that have been donated or bequeathed to
succession title for the minor, on the condition that they do not remain under the administration of the parents,

or with the condition of being aimed at a specific purpose in the minor's life, such as
or to pursue a certain professional career, an artistic vocation, etc..
In this case, the donor or heir can appoint as administrator
a third party who is not either parent.
 In the second case, the law provides for the minor himself to earn income with
the product of your work, allowing it to manage the amount for you
awarded.
Angolan labor legislation allows for the provision of work on behalf of
except for the youngest who has completed 14 years of age.
It was already like this in the General Labor Law (approved by Law No. 6/81, of 24 of

August), whose art. 160 allowed for the admission of minors to work who had
completed 14 years of age, anticipating article 161 the validity of the labor legal relationship
established with minors from 14 to 18 years old, provided that authorized by
legal representative.
Today, Law No. 2/2000, of February 11, also allows for the celebration of
written employment contract, provided that the minor proves they have completed 14 years
years of age; for the validity of the contract, the express authorization of the person is required.

represent either the minor or the tacit authorization, if the minor has turned 16 years old
—art. 282.
By Resolution No. 8/01 of the National Assembly—D. R. of February 16,
Angola has adhered to the Convention on the Minimum Age for Admission to Employment, which establishes

that it "must not be less than the age at which compulsory education ends, nor
in any case, 15 years.
The law does not cover the work referred to as 'domestic' that the minor performs on a title

permanent, most of the time without any type of compensation.

The minor who works for someone else and earns their own salary has
right to dispose of one's remuneration.
But if you live in a common economy with your parents, you must contribute to the

common expenses that constitute the normal burdens of the household.

3—Acts of extraordinary administration
The legal administration of the children's assets is, however, of a restricted nature, as it is

exercised within the limits of the so-called ordinary administration, intended for
conservation of assets and their normal fruition. Acts that exceed these limits
can only be practiced with the authorization of the court.
 The acts mentioned in article 141, which are subject to judicial authorization, are:
alienation or encumbrance of real estate;

alienation or encumbrance of durable movable assets;

disavowal of inheritances;

—assumption of obligations that bind the child after reaching adulthood.

All these acts, which are beyond the parameters of normal administration of
they must be specifically authorized, case by case, by the court, which,
Given the circumstances, you should consider whether the legal transaction presented for your assessment is

patrimonially beneficial for the minor.

The contracts made by the parents during the minority of the child, such as the
lease, exploitation, or rental agreements terminate when the child reaches the
majority. It is sought in this way that when minority ceases, the child does not remain
linked to obligations that were not incurred by you.
After the adoption of the so-called 'market economy' in Angolan society,
the question of whether or not the authorization of
court for parents to establish commercial capital companies with their minor children,
or make them intervene in the newly established societies.
It is not a case of the minor child receiving, by way of succession, shares.
of commercial societies, but from the re-emergence of the minor as a holder of
a social quota or share of a company that did not previously exist.
The issue has been the subject of great controversy, with there being in the doctrine and in

jurisprudence of the Roman law systems the dominant opinion that the entry of
a minor, even as a mere capital partner in a commercial company, must be
authorized by the court.
This was not the guidance of our jurisprudence, which understood to be covered
the powers of representation of the children assigned to the parents, that of acquisition by

minors in companies with limited liability

Since it was not a transfer or encumbrance of acquired assets
previously at least, but in reality it is a donation of values made indirectly
hair
 progenitor, it was understood that this act was outside the legal provisions of article 141.

of the Family Code.

This doctrine adopted by our jurisprudence, in light of the law then in force,
it must be reviewed due to the coming into effect of the Companies Act
Commercials, Law No. 1/04 of February 13.
Article 76, number 1 of this law stipulates that the founders, managers or
society's administrators are jointly liable to the society for the
inaccuracy and deficiency of any statements they have made for their
constitution. And item 3 of this article holds the founding partners liable for damages that
causes to society. Furthermore, Article 78 of that law establishes that the responsibility of
founding partners, managers, and administrators are

of a solidarity nature, any clause that excludes or limits this is prohibited

Responsibility that by virtue of article 79 will be declared null.
Now involving the quality of founding partner the personal responsibility.
described in commercial law, it is a manifestation that exceeds the legal powers of representation
from the youngest child for the formation of a new society in which he appears in
quality of founding partner.
In fact, as we have already seen, the powers of legal administration of the child's assets

the minor is essentially aimed at ordinary administration acts and therefore,

intended for its conservation and normal fruiting, it cannot involve acts of which
personal responsibility may be attributed to the minor.
Under the current provisions of the law, we understand that the constitution of a new society

commercial, in which the minor cannot be a founding partner, nor can he be

framed as an extraordinary administrative act whose authorization may be granted
by the court, as provided in article 141 of the Family Code.
The quality of a founding partner involves personal responsibility and
can only be assumed by those who have full civil capacity for the effects it brings.
They derive. Hence, it cannot be the subject of judicial authorization either, being of
completely remove the involvement of a minor in the act of forming a society
commercial.
 For a greater reason, it is also to be rejected that a minor can be invested in
any social position in the capacity of manager or administrator, for which it
Law No. 1/04 requires that appointed individuals have full capacity to act. The minor
A non-founder can only be a partner in a capital company.
Now the situation that arises after the formation of the company and acquisition
the quality of the partner must be viewed differently. The smaller partner does not
commercial management functions may be assigned, even
through its legal representative, as these are functions assigned by reason of the person
chosen for the management and cannot be subject to delegation.
As a result, any acts are subject to judicial authorization.
that involve alienation or encumbrance of social quotas or alteration of the social agreement. But
it fits within the acts of ordinary administration, the powers of parents to represent the
children in acts arising from the normal life of society, such as the approval of accounts,
receipt of dividends and profits, election of governing bodies, etc.
4—Annulment and validation of acts performed by the parents
The acts of administration carried out by the parents within or outside their powers
of administration that are harmful to the interests of the children can be annulled—
Article 145 of the Family Code.
The annulment can be requested by the Public Ministry during the minority of the
son. And the son himself can come to request the annulment of the act within one year after
having reached adulthood.

In addition, as we have already pointed out, parents can be held responsible for their actions.

that, intentionally or with gross negligence, act to the detriment of the children (art.
144°, no. 2). To parents who mismanage their child's assets, violating the
your duties towards him, abusing his powers, can be removed
the legal power to manage the assets of minors, proceeding with the removal of their
powers of administration.
The removal from administration is a sanction against inappropriate management of
parents who affect the economic interests of the child, either by
inability of the parents, whether due to appropriation or undue dissipation of the assets thereof.
 On the contrary, the acts wounded by invalidity, for not having been duly
authorized by the court, may be validated under the terms of article 146 of the aforementioned
Code.
It may happen that a certain act has been beneficial to the child's assets,
justifying that the defect in its celebration be remedied. The validation can be done at
request from the parents during the minority of the child or by the child himself after reaching the

majority, not imposing the family law a deadline for the request.
When the child reaches adulthood, the parents must deliver the assets to him.
that are under your management sending them to your possession.

Legal representation
As a corollary of paternal authority, the law grants parents the power of
legal representation of minors.
Article 138 of the Family Code assigns to parents the "power-duty to
representation of children in all acts and legal transactions except those of a nature
strictly personal.
This power of representation has both personal and property nature.
It encompasses acts related to the person and property of the minor.
The representation is attributed to the father and the mother indistinctly when they exercise in

together with parental authority.

In fact, with parental authority divided in diarchy between the father and the
the mother is the one who, in the case of cohabitation, is responsible for the common representation of the minor child

(art. 139, n. 1 of the Family Code).

It is assumed that the expressed will of one is the will of both, dealing with
a simple presumption, which can be rebutted by any contrary manifestation
of the other parent. This presumption is valid before third parties acting in good faith and, in general, for

the usual acts of the life of the minor child.

For these normal daily acts of the minor, it would be harmful for it to be
it is necessary to call both parents to intervene, complicating the necessary ones
procedures to resolve each case.
 When a matter of serious nature or exceptional character is at stake
(such as, for example, the choice of profession, continuation of professional training,
authorization for the

minor to undergo a surgical intervention, the minor's exit from the country for
long time, etc.) it is already necessary for both parents to be called to represent the
minor.
The power of representation of parents excludes acts of a nature
strictly personal (art. 138.º of the Family Code) with acts of a patrimonial nature
subject to judicial authorization (art. 141 of the same Code).
Acts of a strictly personal nature are those that are linked to oneself.
will and awareness of the minor, holder of the right, and it is this own will that
it must be expressed.
As acts of a strictly personal nature are encompassed: consent
for marriage, provided for in Article 35 of the Family Code that must be given by
the spouse himself, although it must be complemented with parental authorization
provided for in article 24, paragraph 3.

The consent to adoption, referred to in Article 203, which is essential for

constitution of the bond of adoption of minors who have turned 10 years old.
The declaration of the bond of parentage, whether of maternity or of
paternity, made by a minor who is of the minimum age to contract marriage, or
be, 16 and 15 years old, respectively, for man and woman, as allowed by art. 174.
Item a) does not require authorization. However, in the case of an age lower than those, the declaration is

made by the minor and must be subject to authorization by the legal representative—art.
174., item b).
The hearing of a minor who has turned 10 years old in all cases
Article 158, paragraph 3, of the same Code also represents a right
of a personal nature to be exercised by the minor.
The minor's hearing constitutes 'one of the most important consequences of
principle in favor of the child that the judge must take into account as a relevant element of their

decision.
 It is important to emphasize that the European Convention on the Exercise of Children's Rights,

from 1996, in its article 3, states:

The child who, according to domestic law, is considered to have the necessary
discernment, in the processes in which he is interested and before an authority
the judiciary holds the following rights (...)
a) receive all pertinent information;
to be consulted and to express their opinion;
c) to be informed of the eventual consequences of the application of your opinion and the

eventual consequences of any decision.

Father-child relationships after the child's coming of age

Once the children reach adulthood, the exercise of authority ceases.
paternal, consequently altering the paternal-filial legal relationships that
they come to be processed between adults who hold their rights and duties.
Children, even when they are older, are still bound by certain duties.
specific, pertaining to the quality of being a child, in relation to their parents.

They are, as we saw before, the duties of respect, care, and assistance, such as
prescribes the aforementioned article 132 of the Family Code.
We see that the law, in a family bond as close as that of parenthood, requires,
first and foremost, the respect of children towards their parents.
The duty of care implies the duty of assistance and attention of the children by the person.

of the country and the duty of assistance in moral and material provision. Just as it happens in
relationships between spouses, the law imposes that children provide assistance of a nature
moral and material to the parents.
This translates to the obligation of alimony, as stated in Article 249, paragraph 2, letter
b) of the Family Code, which obliges descendants to provide support to their
ascendants.
Exercise of parental authority
The exercise of parental authority primarily belongs to the father and the mother.
as a result of a natural right. Nevertheless, it is necessary that it be established that
link of affiliation in relation to both for the ownership of the right to it to exist
exercise.
In our legal system, and because the concept of child of a mother or
For "illegitimate" children, paternal authority is exercised depending on whether or not it exists among them.

cohabitation.
Thus, it is necessary to take into account the concrete fact that they are in ownership of the

your parental rights, that is, whether or not the link of parentage is established
in relation to each parent, regardless of whether they are united by
marriage.
Regardless of whether the parents are married or not, parental authority is
exercised equally, with the same rights and duties concerning the children,
especially if both live together.
In the relationships between parents and children, the new perspective had a considerable impact.

of the law that has been emphasized in the last two decades and has begun to face the
child (covering childhood and adolescence) as the holder of rights that are granted to them
directly attributed.
Instead of giving priority to the rights of parents over minor children,
an important shift in perspective began and attention started to focus on the
Rights of the child in relation to their parents. Regarding the exercise of authority.
paternal that we now appreciate, the child's right to have a father and mother is fundamental and

maintain, whatever the circumstances of each case, the normal relationship with
both parents. It is understood that it is beneficial
(n) Francisco Rivero Hernandez. "Personal Relationships between Grandparents and Grandchildren"

in Reconstituted Families,” in Lex Familioe—Portuguese Journal of Law

Family, pp. 36-37: "The

grandparents and the extended family, in general, offer a space for socialization
suitable that favors an adequate individual and social development. The grandparents, in the
current society plays an important role in socialization concerning its niches.
for the child to establish with the progenitor-father and the progenitor-mother a

balanced relationship. That is, the permanence of biparentality.

 This principle is enshrined in Article 9 of the Convention on Rights of
Child, who protects the child ensuring that she "is not separated from her parents".
except for the exemplary exceptions of the child being "subject to negligence or abuse"
agreements by the parents" or when they live separately. But when this happens
the child's right to maintain 'personal relationships and direct contact must be respected
with both parents regularly", unless this is contrary to the best interest of
child.
This orientation is also shared by the Family Code, which does not privilege,
in relationships with the children, neither the father nor the mother, not discriminating against them according to whether they

matrimonial or natural family matters, and assigning children the right to companionship
with both parents in perfect balance and parity.

Joint exercise of parental authority

The exercise of parental authority together is ensured when the father and
the mother lives in cohabitation, that is, as long as they live as husband and wife under
under the same roof. Both fully exercise parental authority.
For our law, it is irrelevant to know which of the parents established
first your respective affiliation bond in relation to the child, because, once this
established, they derive fully all effects of paternal and filial relations.
Article 139, paragraph 1 of the Family Code establishes that paternal authority shall be
exercised jointly by the father and mother, in case of cohabitation, thus establishing the
real model of a nuclear family composed of the father, mother, and minor children, who constitute
the core of the family structure.
In the common exercise of parental authority, each of the progenitors of per
if both together, can perform the acts of representing the person of the child
minor or managing their assets.
As we saw, there is a presumption that each of them is acting with the
express or implied consent from the other parent and in accordance with their will,
which is maintained as long as there is good faith in the relationships between the parents and between them

and third parties. In front of third parties in good faith, when the father or mother of the minor child act

An act in the name of this, it is assumed that the act was agreed upon by both parents.
 The agreement between the parents in exercising parental authority is the rule.
normal and of common procedure, which does not mean, however, that before being
obtained can not be serious misunderstandings between both and that the agreement only
it becomes possible after long discussions and reciprocal concessions.
In case it is not possible to reach an understanding between the parents, not
neither of their authority will prevail and the matter will be submitted for consideration to the

court.
Unlike what previously happened, the court can be summoned to
to resolve conflicts between the parents, even if they live together. Previously, it prevailed the

the will of the father, as head of the family; now the father's will does not prevail over that of the

mother not even of this about that one. Today Article 140, number 1, of the Family Code
it establishes that, in the case of disagreement between the parents, it is up to the court to make the decision. It is

assuming that they are of a serious nature and relevant to the child's life
submitted to the court for decision.
Considering the constitution of the nuclear family and the existence of solidarity
among its members living in cohabitation, article 139, paragraph 2 of the Code of
The family brought an innovation. It imposes, on each of the couple's members, the duty to
cooperation in the exercise of parental authority over the minor children of the other
they coexist with them.

In this case, with the minor child cohabiting with the couple and although he is the child
only of one of them and of a third person, the balance and harmony of the family unit
they impose that a stance of neutrality or detachment not be adopted by
of one who is not the natural father (or mother) of the minor.

Cooperation involves actual participation in the paternal authority exercised

by the other spouse or partner in a common-law union, often taking on the role
of "father" (or "mother") alongside the minor child of the other. This reality imposes the duty of

to provide constructive help in all the complex duties that constitute authority
paternal.
However, it is important to note that this does not mean that it is assigned to
ownership of the right to exercise parental authority to the spouse who is not the father
(or mother), as this is only assigned due to natural or adoptive parentage.
 He is exclusively exercising paternal authority. If the bond is present
established in relation to both parents, the sole exercise occurs in cases
mentioned in Article 147 of the Family Code.
First of all, when one of the parents dies, the authority
paternal authority is exercised solely by the surviving parent who assumes it—art. 147., n. 1
the totality of rights and duties that comprise the exercise of authority
paternal.
The exclusive exercise by the mother, in the case of the father's death, was not accepted.

In the Civil Code of Seabra: the mother had to be assisted by a guardianship council.
It also does not occur in traditional African law, where paternal authority is, in
rule, exercised by a male member of the family.
There are still other cases of the exclusive exercise of parental authority provided for.

the no. 2 of art. 147 of the Family Code, which are absence, incapacity or
impossibility on the part of one of them. We are facing situations that take away from the

progenitor the possibility of exercising paternal authority, whether for factual reasons or
for legal reasons. If the temporary cause of the impediment ceases, it may be
regained the exercise of parental authority.

Exercise of parental authority separately

a) Disjunctive regime
The exercise of parental authority separately results from the end of cohabitation of
country. As an example, article 148 of the Family Code mentions that this can
occurs in the case of de facto separation, annulment of marriage, or divorce of
country.
The end of cohabitation is not always easy to determine, as it, like a situation
de facto, it can be interrupted and resumed one or more times, or even maintained
only due to the existence of the common children.
Once the de facto separation of the parents is carried out, it will have repercussions.
about the person of the youngest son, who, in principle, will have to be placed under the custody of

one of the parents. The de facto separation of the parents will not affect the ownership of the
parents' right to parental authority. They continue to have the rights that are due to them.
attributed due to the existing parent-child relationship. But it will have effects, without a doubt,

regarding how this exercise will be carried out in practice.

One of the deepest transformations in current family law
it precisely impacts the relationship between the child and the parents after their separation.
The statistics, especially in European and American states, showed
that, after the separation of the parents, especially due to their divorce, the children in most cases

they were often delivered to the mother, who was almost exclusively exercising the rights and

duties of parental authority, with the father having almost no intervention in the
the life of the son and increasingly distancing himself from this relationship, moving to
figure of the 'absent father'.

This situation had harmful effects on the emotional life of the son and on his
education, as on the father's side there was often an evasion of
fulfillment of your parental obligations, not paying alimony.
cutting off the relationship with the son.
Therefore, currently there is a search to reverse such a procedure, considering that the
the fact that the parents live separately should not affect their respective rights and duties
father-branches.
It had an influence on this new way of seeing the fact that one has stopped
consider divorce as a sanction for the misconduct of one of the spouses, with
the inherent punishment that involved the "loss" of the children to the declared spouse
guilty
The new view of divorce as a result of an objective situation of rupture of
marital bond, de-dramatized the previous situation, taking the interest of the son and the
its normal development as a focal point to take into account.
The family conflicts that arise from the separate exercise of authority
paternal are sources of destabilization and cause suffering for the children and for the
country.
To resolve family conflicts, increasingly, forms of
mediation aimed at making it possible for the parents themselves to find agreements that
it benefits all parties involved.
 It is also worth noting that the issue of knowing how is becoming increasingly relevant.

will process the exercise of parental authority separately, when the father and the mother are
nationals from different states or have permanent residence in different states, the
what it entails for one of the parents the more or less effective loss of maintaining relationships
personal matters with the son.

Given the increasing number of marriages between citizens of nationalities

different is the fact that the father or mother, to whom custody of the child was not assigned,

to kidnap his own son and take him to his country, led to a search being conducted.
to provide a solution to very delicate situations through the Hague Convention of 1980
about "Civil Aspects of International Child Abduction." The same concern led
the celebration of regional conventions on this matter, by Latin American countries
Americans and Europeans.
Angola is not a party to any treaty or international agreement that stipulates the
inter-state commitments in the case of Angolan children being taken outside of
Angola by a parent of foreign nationality, which has been a source of serious
cases of family breakups where the law of the strongest usually prevails
from an economic standpoint.

In the exercise of parental authority separately, it is necessary to determine, first

place, which of the parents will be given the custody and care of the minor and how it will be
distributed the other powers that make up parental authority, such as that of
surveillance, provision of healthcare and education.
These obligations should be shared between both parents, and the parent
to whom the child is not delivered retains the right to visitation, which consists of the
the right to have the child in your care during certain periods of time.
It is understood that, in determining what is in the best interest of the child, the court
must decide which parent is more capable of promoting and ensuring their physical well-being,
moral, emotional, and spiritual...
The criteria are as follows:
the love, affection, and other emotional bonds that exist between parents and the child
and its compatibility with the child;
 the capabilities, character, and temperament of the parents and their impact on the

the needs and desires of the child and the ability to guide them;
the possibility of each parent providing for the child's physical needs
(such as food, clothing, housing, and other material needs) and provide for their
education and well-being.
The obligation of support is fulfilled in different ways. The parent to whom
for the parent fulfills this obligation by integrating the minor into their household
familiar, while the parent who does not live with him must provide for his needs
in the form of monetary compensation and for other goods and services that the minor may be
to benefit
Article 149 of the Family Code states that to the parent to whom it is assigned the
the exercise of parental authority will especially involve the exercise of rights and duties
for the son.
The other parent will generally have the obligation to provide support, as
indicate the final part of art. 149.
Article 150 clearly states that the parent to whom this exercise is not granted,
maintains the right to personal relationships with the child, and must cooperate in their upbringing

and to monitor the exercise of parental authority by the other.

The expression right of inspection was replaced and the term cooperate was adopted to
to make it clear that the exercise of parental authority by the other parent is not limited
a kind of <right to monitor>.
With these principles, efforts were made to change the prevailing situation in the Code.

Civil, who was indifferent to such an important issue. An effort was made to safeguard, with
the greatest possible latitude, the rights and duties of the parent to whom the child does not belong

delivered, in such a way that he does not feel estranged from the son, creating a situation of
loss and amputation in the reciprocal relationship.
When it is mentioned in the law that the parent has the right to maintain relations
it was emphasized that the relationship of the minor with the father or the
mother, with whom he does not cohabit, should remain as normal and as close as
possible, so that human experience between both is not affected.
 The right to personal relationships is a personality right directly
linked to the people among whom it is established.
The parent who does not live with the child will have the right to visits, to contact.
phone calls, in correspondence, inquiring about your health situation or wanting to know about your life
school, etc. It will thus maintain the right to have the child with them and to communicate with them.

when you are far away.

Furthermore, it is his duty to cooperate fully, within his capabilities and
possibilities, in the upbringing and education of the child, as even living apart,
should exercise the ultimate purpose of paternal authority. Both parents should, in the interest
of the child, always monitor the development of the minor.
In the exercise of parental authority, the issues to be resolved are
essentially three: the delivery of the child to a parent, the right of visitation by the
Another is the obligation of alimony.
The issue concerning rights is gaining more and more relevance.
the coexistence of other close relatives, such as grandparents and siblings in the case of families

dysfunctional, such as that of separated parents or because they divorced or because they did not

they established a communion of life. In these cases, the tendency goes in the direction of
recognize these relatives as entitled to maintain personal relationships with the
child.
In the Family Code of Catalonia, the right of grandparents to maintain relationships
personal with the grandchildren, unless there is just cause that prevents it, has been recognized

no art. 135.°, n.° 2, the same happening in several European legal systems that
they recognize this right 'in relation to people considered special.
relationship with the child." The issue is viewed mainly from the perspective of the
child's interest.
b) Joint custody regime
The way the exercise of parental authority will be regulated separately has
has been the object of study and evolution in various legal systems, aimed at providing
solution to the issue of such great embarrassment in family relationships.

Now emerges as a model to be adopted, whenever possible, the designated

joint custody, in which the minor child can reside in one parent's house, or
to alternate between one and the other, but in which both parents maintain
the right to be called to intervene in all matters of particular importance
for the life of the son.
This new trend aims to replace the previous position of delivering the child to a
of the parents and the assignment of certain rights and duties to the other to whom the child
was not delivered, that supervised how the other parent exercised their authority
paternal, now giving way to a true involvement of both parents in
exercise of parental authority.
Defending the joint custody regime, it is understood to be that which
functionally comes closer to the previous family structure, which is the
but stabilizing and deserving of credit for the child and that corresponds to her ideal of
family, that is, the 'assertion that both parents remain beyond separation,
reinforcing the continuity of the family.
Joint custody assumes that both the father and the mother are equally capable.
and responsible in the exercise of their duties and that, even when separated, it will be of interest

that both continue to provide him with all the necessary support for his upbringing
and education.
The distribution of the exercise of parental responsibilities should promote
also in the interest of the minor, co-parenting (art. 1905 of the Civil Code)
It will be of particular interest to ensure communication and information between the parents.

respect for the child, especially whenever their essential interests are or
may be affected
can only be done under the title exeedonTTM 'T'8' ü<> 'T': to justify it C
heavy reasons for the situation of exercising by force
Force of concrete circumstances. Sc o
minor delivered to a third party, the court must also regulate the rights
the duties of each parent in relation to the child.
The same provision of art. 151 also provides for the assignment of the exercise of
parental authority to the third person when in danger of physical safety or
moral of the minor. In this case, we are already in the field of the legal foundation of inhibition.
of parental authority, which can be declared expressly or derive implicitly from
attribution of parental authority to someone other than the parent.
In choosing the third person to whom the exercise of authority should be assigned
the court must primarily take into account the best interests of the child and,
preference, choose a close relative of the minor, grandparents, uncles, older siblings,
so that the minor remains, as much as possible, within the family environment where they
feels integrated. And, in the absence of relatives, someone who shows particular affection for
younger and who is suitable.
As a last resort, if it cannot be delivered to a third person, the aforementioned article applies.

151.° that the minor must be delivered to an assistance establishment.

In this case, parents maintain the rights related to their children as contained in article 150.

° of the Family Code, regardless of the duty of alimony.

As we see, the exercise of parental authority must correspond concretely.
the real situation lived by the minor child regarding capacity and responsibility

of the countries to respond for fulfilling their duties. The pnncqno erd
that must be ensured
the interest of the minor child, contained in the.
allow decisions to be made that may be different for each case.
the provisions of art. 77, § 2, of the Penal Code: "Those convicted of the crime of
seduction become definitively unable to exercise
In custody.
Parental authority does not operate of its own accord, even in criminal matters.
progenitor for a willful crime committed against the

(Article 152 of the Family Code).

The Penal Code provides for the conviction for sexual crimes inhibition of
paternal authority. "61 In this case, the inhibition of the nal will be decreed as an accessory penalty.

of the conviction for

I sexual.
Isos, Article 152 requires that, if necessary, a procedure be followed.
if sending the certificate of the sentence, which convicted the competent court to
procedure.
 types of inhibition of parental power, and which are, respectively, refers to
situations of legal incapacity or absence,
, which covers cases where there is a factual impediment to suitability.
or repeated negligence by the parent, envisaged in art. 153, the extinction of the
inhibition operates ipso facto. incapacity of the parent due to minority or
from the absence, according to Article 154 of the Family Code, it results from
another legal situation of incapacity or parent and was not caused by
no legal action directed against the lack of exercise of parental authority.

-, the legal cause from which the inhibition derives ceases, it ceases leniency
of the progenitor, of incapacity or absence), ceases: to the inhibition, assuming the
progenitor to the fullness of their exercise Family Code). s of art. 152.°, above
mentioned, and from article 155.° the inhibition is initial and must be lifted or changed
also judicially competent process. And this is because only the court can decide if
that the previous decision be changed.
The declaration of inhibition can be total or partial, always after
properly considering the circumstances of the case. The same occurs with the
lifting
of inhibition.
These provisions of the Family Code aimed to safeguard all the more
various situations that may arise in the relationships between parents and children and in which it is

necessary to protect the person from the child.

Subparagraph a) of article 155 mentions the circumstance of the parent being impeded.
de facto of exercising parental authority. This may occur in the case of illness.
prolonged absence from the country for a long period, although the whereabouts are known
of progenitor, sentencing to prison, etc..
Item b) of this article refers to all the behavior of the parent that may
involve moral danger to the child, such as acts of cruelty, physical abuse and
morals and socially condemnable behaviors, which may reflect on your
relationship with the son.
 The parent's negligence regarding the fulfillment of their duties towards
with the child mentioned in item c) of the cited art. 155.° It includes abandonment and
more or less complete abandonment of the minor.
Negligence can also manifest in the poor management of assets.
son, practicing harmful acts or omitting duties to protect his interests, which
will lead to the removal of the powers of administration of assets by the parents by decision
judicial.
Greater severity applies to the practice of a deliberate crime committed against the person of one's child.

and the condemnation of the parent to a greater penalty, especially if it concerns the practice of

crime of serious bodily harm or attempted murder, or crimes of a nature

sexual.
Even in cases of greater severity, the inhibition of parental authority translates
it is a suspension of rights and does not permanently remove the parents' ownership of them
rights.
It is, thus, of a temporary nature, although its extent and duration
they vary according to the nature of the specific case.

The declaration of inhibition does not exempt the parent from their obligation to provide support.

to the child, as the obligation of support is a duty that always comes first.
country.
For this reason, Article 157 of the Family Code enshrines the principle that,
even after the inhibition, the parent must provide support to the.
The situation of the minor in relation to their family and, especially, to their parents, their

social framework and the whole process aimed at its physical and intellectual growth
these are issues of such great relevance that they cannot be confined to the scope of
private legal relations.
The child and the adolescent lack legal protection throughout the period that
precedes adulthood and this protection is the responsibility of the court in which the Prosecutor of

The state always intervenes on behalf of the interests of the minor.

0 court can intervene, not only during the cohabitation of the parents in the case of art.

140.°, but also when the parents are de facto separated, as established by art.
148.°, or whenever it is necessary to declare or lift the authority's inhibition
paternal—arts. 155 and 156 of the Family Code.
As a general rule, article 158 of this Code stipulates that the court must take
the necessary measures for the protection of the minor and decide on the issues related to it
they should be respected whenever the circumstances require it.
Decisions will be made after mandatory hearing, in all cases, of
agreement with numbers 2 and 3 of the same article:

—from the representative of the Public Ministry;

to the minor who has reached the age of 10 in matters concerning them.
The hearing was established, on an optional basis, decided ex officio by
tribunal or at the request of the parties, of the advisory bodies which are the Council
of Family or social assistance organizations supporting youth—art. 159.
same Code.
As the ultimate goal to be considered in all judicial decisions is the benefit
the interest of the minor and that of the society in which he is inserted

The prevalence of this superior interest of the child over that of the parents, guardians or

Other interveners in the case cannot suffer any deviation, as imperatively

who is stated in art. 160.°. Define what constitutes 'the best interest of the child'
has been the subject of deepening.
The criterion of the minor's interest cannot fail to be linked to
assumption of valuing and adapting to the specific circumstances; In fact, a vote
to fill in, from time to time, as a criterion of a subjective nature that this
linked to the personal and particular identity of that particular minor c not of nature
predetermined objective not determinable... the hearing of the minor establishes the
difference, as it represents in my opinion and undoubtedly the instrument
"the most effective process to try, if not to carry out, at least to have it in view."—Lea
Querzola, in Researcher of the University of Bologna, pg. 1361.
As we have already mentioned, the concept of the child's best interest is
prevailing in all decisions whether judicial or administrative that pertain to it
respect is an indeterminate legal concept that materializes for each case of
according to your specific circumstances.
 The law leaves the boundaries blank so that when applied it can meet
to the conditionality of the moment in individual and social aspects.
The judicial decisions made in processes of this nature are temporary and
susceptible to change whenever the very circumstances change
facts that served as their foundation, as happens in all decisions
issued in voluntary jurisdiction processes. But Article 161 of the Family Code
understood to express this principle again.
The competent court from a territorial point of view is that of the minor's residence.
at the moment of the initiation of the process—article 6, no. 1 of the Code of Procedure
Juvenile Court.
a) Judicial intervention in the case of parents cohabiting
The court should intervene at the request of one or both parents when the
divergence of these should be on a matter of serious nature.
In these litigations, the court will have to perform the role of an arbitrator of the conflict,

seeking to obtain a conciliatory solution from the parents, never losing sight of the
primacy of the interest of the minor child.
In all cases of parental disputes, the judge has to carry out the work.
delicate from a counsel of the parties, seeking to clarify the conditions
of family life, what are the rules of conduct followed so far in similar situations,
what is the purpose envisioned by each of the parents, etc.
Judicial intervention in the case of de facto separation of parents
The exercise of parental authority separately can be established through
agreement between the parents, as we have seen, is provided for in Article 148, paragraph 1 of the Code of

Family, as we will see regarding divorce by mutual consent (article 85, item a)) and
in relation to contested divorce (art. 109, no. 1 of the same Code).
In all these cases, either parent or a third party, through the
Public Prosecutor's Office may go to court to request their intervention, with the decision being

mandatory for the parents, for the child, and for third parties.
c) Judicial intervention in the case of inhibition of parental authority or of
need for the application of social protection measures
 The intervention of the court in the case of needing to declare the disqualification of the

parental authority is the initiative of the Public Prosecutor's Office. The procedural norms are,
in addition to those contained in the Family Code, those of Decree No. 6/03, of 28 of
January, of the Code of Juvenile Procedure.
In broad terms, they can participate in the Public Ministry so that it may come to
to act in court on behalf of the minor, any relative of this, a relative, or person who
or have in their charge, as a public official or private entity that has
awareness of the need for judicial proceedings.
We are facing a situation where the public interest in defense prevails.
younger, undermining the family structure, as it is unable to fulfill the role that is assigned to it

reserved by law, and in which the social right to defend the minor must be assumed
by the judicial bodies and social bodies designated for that purpose.
Law No. 9/96, of April 19 (Juvenile Court Law) establishes in its article.
14.° when social protection measures should be applied to minors,
specifying, moreover, in its items a) and b), that this occurs when they 'are
victims of physical or moral mistreatment or neglect by those who have them
your custody or find themselves in situations of abandonment or helplessness." In these cases,

the Juvenile Court will intervene to take the appropriate measures provided for in
No. 18, and not the Family Court of the Provincial Court, as is always the case when
family relationships are at stake.
In turn, the Juvenile Court when applying any measure that involves
change or inhibition in the exercise of parental authority must inform the
fact to the Public Prosecutor's Office before the competent Family Chamber for proceedings—
Article 22 of Law No. 9/96.
 CHAPTER I0.
THE MARRIAGE
Brief history of the evolution of marriage
A brief historical retrospective of the institution of marriage shows that, during
For a long period in a man's life, marriage was not formalized by any act.
solemn. It was the establishment of a fully shared life between man and woman,
made for the purpose of founding the family, which characterized marriage. In law
In Roman times, the simple concubinage was already distinguished from marriage by the affectio maritalis.

subjective element that evidenced the common purpose of lasting coexistence among
man and woman.
With the advent of Christianity, religious convictions began to dominate.
the entirety of the institution of marriage, which has come to be considered as a sacrament
in which the divine will intervened. Marriage should, therefore, take on a form
canonical and was the minister of worship who authorized the celebration. Only in a later period

recent, that is, from

From the Council of Trent, in the 16th century, the priest began to intervene in his
celebration, being the issues regarding the validity of the marriage within the knowledge of
ecclesiastical authorities.
Meanwhile, the advent of Protestantism and its predominance in many countries
Europeans came to remove marriage from the control of the Catholic Church, subjecting it to power.
of the State, as a worldly matter. It is the absolute power of the monarch that is being asserted.

In countries like England, the need for the dissolution of a royal marriage led to
the breaking of relations between the king and the Catholic Church, which was a step on the path
of absolutism. The secularization of matrimonial law began in the countries where it
checked the counter-reform, but in predominantly Catholic countries, marriage
was within the competence of the church.

It was with the French Revolution, at the end of the eighteenth century, that this was changed.

situation and started to adopt the conception that marriage is merely a civil act,
based on the free will of the parties and as such not subject to mandatory intervention
from the church. It was on this date that civil marriage of a secular nature emerged,
 regardless of the religious marriage, and of the competence of the representatives of

state.
In Portuguese law, civil marriage was only introduced in the Civil Code of
19th century, with a purely optional nature, remaining fully valid the
canonical marriage to be celebrated by those who profess the Catholic religion. With the
the proclamation of the Republic in 1910, civil marriage became mandatory and left
to attribute civil effects to Catholic marriages.
Subsequently, with the celebration of the Concordat between Portugal and the Holy See, in

In 1940, the duality of forms of marriage, civil and canonical, was reintroduced.
it again began to produce civil effects, making the celebration of the
civil marriage.
This system persisted with the Civil Code of 1967, which admitted both
marriage modalities, canonical marriage and civil marriage (art. 1587°). To
Catholic marriage was recognized for its value and efficacy in terms of the provisions of
Code. This duality of forms of marriage still remains in Portuguese law.
Moreover, the canonical conception of marriage influenced Catholic jurists, who
they seek to define marriage as an institution. From this perspective, marriage,
giving rise to the constitution of the family, an organized body made up of the spouses and
children, is considered indissoluble during the life of the spouses.
The individual will of the spouses cannot surpass the interests of the self.
institution.
The Family Code recognizes only marriage as valid marriage.
civil, because, as we have seen, the Angolan state asserts itself constitutionally as a
secular state, not recognizing any effects of the marriage celebrated according to
the rites of different religious denominations.
Consequently, the marriage celebrated before the civil registry authorities does not
it has a subsidiary character, but rather an obligatory character, as only it produces legal effects.

In fact, the Family Code only recognizes the validity of the marriage celebrated or
recognized in the terms thereof
 foreseen (art. 27) as the only entity with the authority to celebrate the
Marriage is the conservator of the civil registry—art. 34.
The Family Code in its article 20 defines: "Marriage is the voluntary union
between a man and a woman, formalized in accordance with the law, with the aim of
to establish a full communion of life.
This concept highlights the following essential elements:
the subjective element of the voluntariness of the act of marriage on the part of the
the bride and groom, man and woman.

the necessity of its formalization according to the form established by law, which
it constitutes the fundamental trait that distinguishes marriage from de facto union.

the legal purpose of marriage, which is the establishment of full communion

of life. [60] The promise of marriage in positive law and customary law
The fact that marriage constitutes a common phenomenon among various peoples and cultures

be preceded by the existence of a reciprocal promise of marriage by both parties

brides and grooms.
The engagement or betrothal is much more relevant the greater it is
economic, social, or even political importance of the grooms, as in these cases the
marriage serves a function of establishing alliances to reinforce
political influence or for the accumulation of capital. Within this perspective, marriage was
usually preceded by understanding protocols agreed upon by the counselors
relatives and only more recently by the groom and the bride.
As a rule, an agreement was sought between both families regarding the celebration of

marriage and the provisions of a patrimonial nature that would be in effect during the
marriage. The betrothals, as they were called, were a true pact in
engagement. The French call us 'fiançailles' and the English call it
reciprocal marriage promise "engagement".
In our days, although with much less prominence, engagement is still attributed to
social importance, as can be seen in major newspapers in Europe the engagement
shall be announced and made public.
On the other hand, pre-marital cohabitation is becoming increasingly common.
bride and groom, especially in the Germanic and Nordic countries. Among us, it also enhances the
phenomenon of the establishment of a de facto union between a man and a woman, with
common marital life more or less prolonged that is transformed into marriage
formal, dispensing with the recognition process that we will talk about later.

The engagement consists of the cohabitation that precedes common life and translates into

a mutual commitment aimed at better understanding of the futures

betrothed. In Western tradition, engagement is usually expressed through the giving of the
the groom gives the engagement ring to the bride, which comes to symbolize the mutual commitment. In

meanwhile, the importance of engagement is becoming increasingly lesser as one

individualizes the act of marriage and it sheds formality
social, that is, as the notion of marriage as an act is reinforced
will of the personal forum of the parties, increasingly understood as an agreement between
the relatives of these. And this is because, in more developed societies, emancipation
the economic and political situation of men and women ensures them greater independence in

exercise of your personal rights.

On the other hand, and according to its economic and social development,
in traditional Angolan society, the promise of marriage still holds significant prominence,
expressed in deliveries made by the groom or by his family to the bride's family, as a title
of the interlace or interlacing.

For a long time, and unanimously, the various legal systems have considered
as not relevant, from the point of view of forcing marriage, the fact that
to have a marriage promise, as this does not grant the right to demand its celebration.
In fact, in all legal systems that include rules regarding the promise of
marriage, there is the care to determine that she does not constitute the promisor in the obligation

of marrying.
It should be noted that in the family laws published after the independence of Cape Verde

In São Tomé and Príncipe, any reference to the promise of marriage is omitted, which
it means that any legal relevance is denied to it. The legislative reform carried out in
Cape Verde, with the introduction of Family Law in the Civil Code, changed the omission.
of this institute in the law of Cape Verde.
 It seeks to respect the freedom of the bride and groom, allowing them to
they can change their minds until the moment of the wedding.
The law stipulates that the spouses give their consent at the moment when
the marriage is celebrated, that is, to verify the current mutual consent
in this precise moment, and this is because it is considered that marriage is an act of
too much importance and so it must be celebrated in full acceptance and freedom
by both parties of the bride and groom.

It is necessary to clarify what should be understood by a promise of marriage, both in

a generic concept universally accepted, as in the specific case of law

Angolan traditional culture and its various ethnicities.
The marriage proposal is in itself an act already imbued with a certain social resonance.
conducted with seriousness between the couple, but also known to their family members and
people from your social circle.
It is obvious that it is not just any marriage promise made lightly and
veiled in secrecy, which can be considered as such. There was even jurisprudence
French woman who understood that the promise, to be understood as such,
It should take written form, but this understanding has been dismissed by doctrine. The
dating is not in itself a promise of marriage, but a simple way of
affective coexistence.
In traditional law, the promise of marriage is a preliminary to marriage.
It is cloaked in more or less rigorous formalism. The practices differ by ethnicity.
for ethnicity, but always involve the intervention of the families of the future spouses and it is

always brought to the public's attention in the bride's place of residence and the
groom, through external acts that signify him.
They manifest in the sending of verbal or written messages, in the delivery and

receipt of offers, meetings between the relatives of the bride and groom, celebrations of
celebration and other signs that vary but retain an identical essence.
We can say that they are essentially the preliminaries of the traditional marriage itself.

In positive law, the promise of marriage was regulated in the articles.

Article 1591 of the Civil Code. In summary, Article 1591 established the principle
on the ineffectiveness of the promise, stating that "it does not grant the right to demand the celebration of
marriage." Article 1592 defined the right to restitution of the donations made by
promisers or by third parties by virtue of the promise or in anticipation of the marriage. The
art. 1594.° prior to the right to compensation that belonged to the 'innocent spouse'. It was
a deadline of one year is set for the respective actions of restitution or indemnification in
art. 1595.
Another is the position adopted in the Family Code, asserting its legal ineffectiveness.
from the marriage proposal, even if it is accompanied by the delivery of goods or
values to the other party or to their family As is clearly expressed in the law, art.
22.°: "The marriage promise, whether or not accompanied by the delivery of goods or
values to the other party or their family do not produce any legal effects and do not
gave the right to demand the celebration of the marriage.

It is redundantly added that, through it, either of the spouses is

prevented from demanding that the marriage be celebrated. The irrelevance of the promise remains.

despite goods or values having been delivered to the other spouse or to their
family.
This positioning was taken precisely considering that, in practice of
Bending, the offers are generally made to the bride's family, translating to
many times in the delivery of fungible and quickly consumable goods. It was intended
primarily prevent these deliveries from being used indirectly, as a way
of coercion by these family members over the bride, forcing her to celebrate the marriage
and curtailing your freedom. It is evident that if the situation is reversed and it was the groom
who received the offers, he cannot likewise be coerced into the practice of the act of
marriage.
Now, not providing for the Family Code the obligation to return the goods or
values delivered with a view to the celebration of marriage, we must understand that the law
deliberately chose not to recognize the right to the restitution of these goods, prioritizing
legal to the personal freedom of the parties involved over the property interests of whoever may have

made these offers.

We come across an obligation that is not legally enforceable, that
we can classify it as a natural obligation. "The natural obligation opposing-
The civil law is distinguished from this by being devoid of action, thus the debtor cannot do so.

to be directly compelled to fulfill the obligation.

Today, the natural obligation is provided for in the Civil Code, which defines it as a

obligation based on a moral or social duty, whose fulfillment is not

legally enforceable, but corresponds to a duty of justice (art. 402).
This type of obligation—the natural obligation—unfolds in three aspects:
it is an obligation;
It is founded on mere duties that correspond to a duty of justice;
it is not legally enforceable.
For a natural obligation to exist, it is essential that there is a legal provision.
who sees for any reason the recourse to the courts.
We can thus understand that the restitution of goods or values received by
the other party or by his family is a simple natural obligation, which may be
voluntarily satisfied by the interested parties, but whose compliance cannot be
coercively required.
This is what is verified in the current law, since, by express provision of the law, not
the restitution of goods or values received can be demanded. However, if the other party
spontaneously operate this refund, returning all that has been received, this
The refund is effectively valid, not giving rise to the repetition of the undue - Article 403.
of the Civil Code.
As for the right to compensation, it is recognized, but only under the terms
restricted by number 2 of article 22. It is necessary, first of all, that there is a rupture
unjustified by one of the parties, which means that it is necessary that your
the procedure was not caused by misconduct on the part of the other spouse,
justification for the withdrawal of the previous intent.
Therefore, it will be necessary to determine the cause of the rupture, taking into account

that in the Family Code the concepts have been set aside in the various family institutes
of guilt and innocence that arose at every step as a dividing line of conduct in the
provisions of the Civil Code relating to family law.
The behavior of the nuptials should, therefore, be assessed, as much as
possible, in objective terms and not based on discriminatory prejudices. The
the right to compensation referred to in this article 22.° is confined to the parties themselves,
whose legitimacy for the action will have to be determined on a case-by-case basis, not being extensive
to third parties, such as the parents or relatives of the parties getting married, who will have to be compensated.

in general terms of law. Between the parties, the limits of compensation are
limited to the obligations undertaken with the agreement of the other party.
Also within the guidance of socialist civil law, in art. 22, no. 2, it does not
any compensation for moral damages is provided for. This article refers to the
obligations of a patrimonial nature, namely those that may have been incurred
with the acquisition of furniture, from the couple's residence, of goods for the festivity of the
wedding, etc.. Here one can also raise the question of whether there could be compensation
for moral damages suffered by the bridegroom who has been a victim of unjustified rupture or
that has justifiably terminated the marriage proposal, since the
The conception of the law mentioned above, underlying this legal provision, has been altered.
The promise of marriage, as a matter of fact, may still have relevance in
establishment of the paternity of the child born from the sexual relations maintained by the
those getting married during the period of premarital cohabitation.

It is well known that the promise of marriage constitutes a suitable means, we would say

even the most suitable, for the seduction of a woman and to obtain her consent for
the practice of sexual relations before marriage. Although it is not explicitly stated in the law

any presumption of paternity attributed to the fiancé, the promise of marriage

it undoubtedly constitutes a predominant factual element for the judicial decision to be made
in action for the establishment of affiliation.
Legal nature of marriage
Marriage can be characterized as a legal transaction.
solemn, that is, formal, by which a man and a woman voluntarily accept and
reciprocally establish between themselves a common coexistence of a lasting nature. These
relationships are characterized by the stability and occurrence of rights and duties
complex, among which stands out the one of assistance and mutual help.
Thus, marriage can be understood as the act itself, by which it is
formalizes, or as the marital status that results for the participants, husband and
woman, from the celebration of the act of marriage.
 Marriage as a state is, therefore, a family bond that unites husband and wife.
It is composed of a complex of rights and duties that is established between both.
It is interesting for us to focus on the legal nature of the act of marriage.
determining what your true content is and what the intervention of the parties' will is
in its celebration and in the effects that derive from it. It predominates in the doctrine
civilist the conception according to which marriage is a civil contract in which intervene
two opposing but harmonizable wills, which, unlike the others
contracts imply the diversity of sexes.
In the same direction, there are those who argue that marriage can be defined
like a contract between two people of different sexes, personal, consensual, solemn and
indivisible.

There are authors who, although attributing a contractual nature to marriage,

they recognize that it is a family legal business, where the autonomy of will
granted to the parties has a limited margin.
There are still those who believe that marriage should be framed as the sum of two
simple legal acts... incompatible with the idea of contractual binding.
the attribution of the contractual essence to marriage actually comes from canon law, which
emphasizes the importance of the parties' will in its celebration.
The Civil Code itself expressly defined marriage as a contract.
between two people of different sexes (art. 1577).
More than discussing whether or not to use the term contract, we believe that the
What is actually relevant is to distinguish in substance what the limit and the scope of
intervention of the parties.
We conclude that there is freedom on the part of the parties to marry to celebrate or not.

to celebrate the marriage. Marital freedom, as we have seen, constitutes a right

fundamental of the human person.
But there is no longer any freedom of stipulation on the part of the marrying parties.
to the effects that marriage produces. We would thus be before a legal act stricto
in a sense and not before a legal transaction.
 However, there are those who believe that the concept of marriage should be dismissed.
considered as a contract, since marriage is not an act of a natural nature
patrimonial, but rather a legal transaction from which the constitution results
of relationships of a patrimonial nature. The rules do not apply to marriage
general contractual rules.
Legislation such as the French, Italian, and German abstain from defining what it is
marriage, starting from the principle that it is a concept that dates back to the dawn of
humanity and whose legal definition may create more difficulties than benefits.
In the Family Code of Cuba, marriage is defined as a union.
established voluntarily between a man and a woman, endowed with capacity
legal for that, and with the purpose of living together.
Setting aside the theoretical controversy about the legal nature of marriage, the
Cuban legislator wanted explicitly that marriage no longer be considered
like a civil contract, although it is recognized as a legal transaction.
The same understanding was accepted in the Family Code, which rejected the
designation of marriage as a contract, to define it as a union.
Marriage as an act should not, therefore, be seen as a strict contract.
therefore, the declaration of intent made by the betrothed will produce solely the
legal effects already provided for in the law and that are of an imperative nature. There is, in fact,
a convergence of

two wills for the acceptance of the effects that will derive from the act performed, which
are common and reciprocal and will establish personal relationships between both
own familiar to the marital bond.
However, it is necessary to take into account that the autonomy of the will of the parties is

it circumscribes two points, which are indeed of decisive importance:

each person is free to marry or not marry;
Each person is free to choose the person of the opposite sex with whom they want to celebrate.

the marriage.
The right to freely celebrate and choose the spouse is recognized in
international instruments already mentioned related to human rights.
 The expression of will declared in the act of marrying is subject to subsidiary application.

certain essential principles applicable to all legal transactions in general,

specifically those referring to nullity due to lack or defect of will.
But, once the will is expressed, it is the regulatory law of matrimonial rights that
determine all the legal effects that derive from the celebration of the act of marriage.
None of the spouses can celebrate the marriage imposing conditions or
clauses that alter or modify legal effects. For example, the law does not
would agree to a marriage being celebrated in which the spouses
I committed not to live together.
The law does not allow the parties to impose deadlines on cohabitation.
conjugal.
The will of the parties cannot, therefore, be imposed beyond the celebration of the act.
of marriage, as the effects of the act are previously established by law.
We are faced with a declaration of intent aimed at producing certain effects.
foreseen in the law, effects that cannot be either restricted or extended.
In the absence of consent, consequently, there is no freedom to stipulate what the
legal effects to be produced by the act, characteristic of the law of obligations.
In fact, as we will see, it is expected that during the wedding celebration the
the civil registry official shall proceed to read the articles of the Code in the presence of the parties

concerning the rights and duties that arise for the spouses from the act of marriage.
This assumes that the parties must be previously informed of the effects of the act.
that will practice and that accept them in advance and consciously.
How, then, to define the legal nature of marriage?
We believe that marriage should be understood as a family legal business.
bilateral, with the nature of a pact, celebrated between the parties. It is the legal act
condition of accepting the state of being married, which derives from it, the state of being married that it

establishes reciprocity between the two spouses.

Through the celebration of marriage, the newlyweds commit themselves to
establish a comprehensive and reciprocal coexistence of life, of a stable nature and
lasting, that is, marital-type family coexistence. They commit to fulfilling
your personal and marital duties, both among themselves and in relation to the children
commons.
But there remains the question of how many wills are involved in the legal act.
of the marriage: just those of the two groom and bride or also that of the State through the official
of the civil registry that celebrates the marriage?

Will marriage therefore be a multi-party legal transaction, in which it is necessary to

intervention of the will of the State when declaring the spouses married?
This opinion is dismissed by the doctrinal current represented by those who
they view marriage as a civil contract: the will of the State does not intervene in the act
of celebrating the wedding in a different way than that in which notaries intervene when
we will certify the authentic documents.
The civil registry official would be, according to this point of view, merely a witness.
privileged, as the cause of the marital bond would be in the exchange of declarations
of the will of the spouses and the act of marriage is perfected as soon as consent is given
lent.
We believe that this conception does not fully reflect the state's intervention in
the solemn act of marriage, the formal process of which we will have to study further along.

The civil registry employee must verify if the conditions are met.
legal prerequisites for the authorization of marriage, that is, the capacity of the
marrying, and it is necessary to issue an order to authorize its celebration.

And at the time of the wedding ceremony, the intervention of the

clouds and the civil registry official, in addition to two witnesses who certify the
practice of the act and the identity and marital capacity of the parties.
The consent of the parties is expressed, the marriage is considered celebrated and the
The civil registrar will proclaim that the bride and groom are united in marriage. It is certain.
that the will of the civil registry conservator does not intervene in the act itself, but its

intervention has a certifying nature and its participation is indispensable to it itself

legal existence of the act.
We see, then, that the State intervenes in the act of marriage before its
celebration, being present at the act through the civil registry officer and receiving
in the legal system, the declaration of the spouses to attribute legal effectiveness to it. A
declaration issued by the civil registry official, proclaiming the act, is, in our
understand, an indispensable element for its legal effectiveness.
We understand, however, that it is legally more correct to make the distinction between the

the vice of legal non-existence and that of absolute nullity.

Concerning the content of the essential Family Code norms themselves
legal existence of marriage, we can establish the prerequisites for the existence of
the marriage certificate itself, as follows:
a) Diversity of sex
It is essential that the act of marriage is celebrated between two people of the same sex.

different. This requirement derives from the very substantial nature of marriage, which the law
define the full union between man and woman. It distances from legal acceptance or the
equalization to marriage of any type of union established between people of
same sex, such as homosexuality.
In the Family Code, the very concept of marriage (art. 20) implies that
this act presupposes the union of a man and a woman in full communion of life,
legal concept that undoubtedly removes any type of union between people of the same
sex.
By the way, this concept of the obligation of diversity of sex is currently
strengthened by the already mentioned article 35, paragraph 1 of the Constitution, which defines the family

it expresses that both marriage and common-law partnership must be formed 'between
man and woman.
We must add that it has been emphasized at the level of many legal systems
the alteration of the very concept of marriage defining it as the union between two
people, but omitting that they must be of different sexes, precisely to
allow marriage to be celebrated between same-sex individuals.
More complex for our legal system, could be the cases of
intersexualism and transgenderism, where a person can be a bearer of
intermediate genes between the male and female genders (intersexualism) or being
susceptible to alteration of morphology from one sex to another (transsexualism).
 Actually, in a case like this, can one of the parties present themselves as being
of a certain kind, when it is later found that there is a change regarding
to the genre to which it belongs.

In cases like these, one would no longer be faced with the legal non-existence of
marriage, but in the case of annulment of the marriage due to mistake regarding the
essential physical qualities of the other spouse, if there had been concealment of these
circumstances.
b) Two declarations of will
At the moment of the wedding celebration, the existence of a
declaration of intent by each of the parties.
Marriage, as a bilateral legal transaction, presupposes that agreements are made.
two declarations of intent and the omission of a declaration by any of the parties
the marriage is a cause of non-existence. In the case of a marriage celebrated by proxy, it can
has ceased to produce effects due to its revocation by the principal
or due to expiration by reason of his death, or for the power of attorney being invalid
falsehood. The lack of declaration of

the will on the part of the groom makes the mutual consent in which
he will structure himself.
It is evident that the requirement for the existence of two declarations of will
presupposes the physical presence of two people present at the act on the part of the parties.
If by absurdity, the marriage is performed in the presence of only one, it will obviously be
nonexistent.
The Family Code explicitly states in article 35, number 1 that 'It is
essential for the validation of the marriage that each of the parties expresses in a way
expresses the desire to enter into marriage with the other spouse.
It is not enough for either of the spouses to simply give a gestural assent, imposing the

there is a verbal declaration that reveals the existence of the intention to contract
marriage. In the diploma that regulates the act of marriage, Decree No. 14/86, of 2
of August, in article 26, number 3 provides for the cases of marriage of deaf or dumb individuals
or if the contracting parties do not dominate the language in which the act is celebrated.
 What is essential is the existence of the express declaration of will of each one.
two individuals at the time of the celebration of marriage voluntarily accept the act itself,
what constitutes the very substratum of the act of marriage.
c) Intervention of the Civil Registry Conservator
The marriage must be celebrated by a competent civil registry official, who
it is usually the conservator or their legal substitute.
The intervention of the employee with the competence to perform the act is another
essential requirement for the existence of marriage. The ceremony celebrated in front of a person

dismiss this competence, even if invested with public authority, or even by a

third party without any powers for the act is irrelevant before the legal order. This
principle is established in article 34 of the Family Code: "At the time of celebration of the
marriage is essential to the intervention: a) of the parties, one of whom may be represented by
a) from the Civil Registry employee;
It may happen that both parties, in good faith, believe they are before the
civil registry employee at the time of the ceremony, or it may happen that
one of the spouses is acting in bad faith and conspires with a third party to simulate a farce of

marriage with the intention of misleading the other spouse/10) The celebration of the marriage
lacking competence for such will constitute a criminal offense.
Only urgent marriage, which we will study ahead, allows for the celebration of
marriage without the presence of the competent civil registry official, but in
special conditions and subject to subsequent approval.
We can agree that, in light of the Family Code, there are still
certain assumptions of the existence of marriage, without which marriage does not
it does not even exist in the legal order. When the legal non-existence of
marriage there is no need to propose any action for the declaration of
non-existence.

The legal inexistence can be invoked at any time, either by means of

action shall be by way of exception.
 Validity of marriage: substantive elements and formal elements
The marriage, as a bilateral and solemn legal transaction, is constituted by
elements of substantial nature and of formal nature, which can be classified
like:
a) Background conditions, encompassing matrimonial capacity and mutual agreement

consent
b) Conditions of form, which refer to the preliminary process of marriage and to
celebration of the marriage act.
The background conditions refer to the natural aptitude for entering into marriage and
they encompass the difference in sex, the pubescent age, physical health, the nonexistence of
impediments provided for by law and specifically applicable to the parties getting married, and which are based on

due to genetic and social reasons.

The desire to enter into marriage and the capacity of the parties to celebrate it is
also an essential element for the validation of marriage.
The formal conditions refer to the preliminary process that precedes the
marriage and the solemn and public form of celebration.
Draft of the Penal Code:
ARTICLE 224.
(Simulation of competence to celebrate marriage)
Whoever impersonates a competent authority to officiate a marriage and, in that
The condition of celebrating is punished with a prison sentence of 1 to 3 years or with a fine of 120.
to 360 days, if a more severe penalty does not apply to you due to the force of another criminal provision.

Marital capacity
Although at first glance it seems to be an established fact that every human being
who meets the legal conditions should have the right to marry, the fact is that there have been
throughout the times and in different societies a series of discriminatory measures
imposed for reasons of a religious or political nature (as in the case of the regime of "
apartheid," which prohibited marriage between people of different races), or still by
socially rooted prejudices.
 In certain professions, such as nursing, flight attendant, teacher
primary, were included in the employment contracts or in the admission to public functions
clauses that prohibited marriage. Currently, such prescriptions are considered
contrary to the fundamental rights of the human person and null and void in law.
Within certain areas of Angolan customary law, the trend is that
traditional marriages are celebrated between cousins or between people from the same village.

The marital capacity offers a special situation in relation to

general capacity to engage in legal business of other branches of law.
Meeting the specific social purposes of marriage, the law establishes natural conditions.
so that, in principle, this is to be celebrated among people who are fit for the
propagation of the human species. This aptitude is revealed by conditions of maturity
physics and also by psychological maturity that allows future spouses to be
able to bear the responsibilities arising from marriage.
This does not mean that a person physically unable to procreate cannot.
to contract marriage. Impotence, whether for natural or physiological reasons, or induced
through illness or mutilation, does not prevent a man from entering into marriage, just like the

sterile woman due to physiological, surgical, or other reasons is also not inhibited from
to enter into marriage.
However, in cases like these, the other spouse must have full knowledge of
What is the physiological condition of the person you are going to marry to know if they accept, even so?

thus, celebrate the wedding.

If the vice is concealed from the other party until the moment of the celebration, this
constituted, as we will see, an essential error about the quality of the other spouse and can
to render the marriage null and void.
The law does not require only physical or psychological conditions attached to each spouse, but

further imposes restrictions on marriage between people related by family ties or by

criminal practices, for reasons of moral order and even eugenics.
On the other hand, it must be taken into account that there are certain incapacities for the

practice of legal business, such as that of those incapacitated by blindness, deafness-muteness and

prodigality, provided for in Articles 138 to 152 of the Civil Code, which do not affect the
marital capacity.
 The marriageable age

Puberty, that is, sexual maturity is the primary biological condition for
the wedding celebration.
Marriage leads to a complete communion of life between a man and a woman, and besides that,
aspect of the physical and sexual cohabitation of the spouses, there is also the need to take into account the

psychic development that is required of those who are going to start a family, assuming with
responsibility the inherent rights and duties.
It doesn't matter, therefore, to favor early marriages either on the part of the man.
not by the woman. Marriages between individuals who are too young do not
brings in principle any benefit neither to the bride nor to the society, as it prevents its
global physical development and its professional preparation as a citizen
socially useful.
In most countries, the legal age for marriage coincides with the age of majority, or
be it, this is recognized at 18 years old. There are countries that establish a higher age, such as

in the People's Republic of China, for example, where marriage is not encouraged with
under the age of 25, a position aimed at combating the demographic excess of that group
country, the most populous in the world.

The Civil Code stated that the legal age for marriage was 16 years for men and 14 for women.

years for the woman (art. 1601, subsection a)).

Article 24 of the Family Code establishes the rule that the age of marriage is reached
at the age of 18, marriage is exceptionally allowed at a younger age when
It was shown to be preferable. Thus, the legal age for marriage was set at the established age of majority.

Law no. 68/76, of October 12, currently contained in Article 24 of the Constitution.
We see that the law establishes a normal standard of minimum marriage age,
what is the age of 18 years, but provides that, exceptionally, marriage may be
celebrate when the man is 16 years old and the woman is 15 years old.

In this case, authorization from the representative or representatives is required.

the rights of minors. However, there must be a significant reason that justifies or makes
but more beneficial for the minor that authorization is given for the celebration of the marriage.
This can happen, for example, due to the woman's state of pregnancy or, on the part of the
young man, due to the fact that he had sexual relations which resulted in the pregnancy of
bride and groom. In these cases, it is evident that the bride and groom

have a natural physical aptitude for the celebration of marriage, although in many
cases do not yet have the psychological maturity for such.
The minor male of 16 years old or the minor female of 15 years old
can therefore be authorized to marry, with the age of 18 being an incapacity
merely relative.
The law, for the sake of preserving the marriage, does not void it.
absolute the marriages celebrated by people with matrimonial incapacity or without
the marriageable age.

It may be the case that a marriage is celebrated for a minor who is not of marriageable age, that is,

of a minor under the age of 16 or 15, minimum ages established by the Code of
Family. Even so, the marriage will not be null by itself, as the law allows it.
subsequent validation, and subject to annulment action of the marriage within deadlines of

expiration.
The marriage of a minor requires authorization, which must be given by
both parents, given the importance of the act of marriage for the life of the minor. In the absence
of both parents, it will be up to the legally appointed guardian, and, in their absence, to the person who

to have the minor in your charge.

When the authorization for the marriage is denied by the legal representative of the
the minor, or by whomsoever has them in their charge, shall be the court that decides, heard

obligatorily the Family Council, which may, if deemed appropriate, supplement

judicially the lack of authorization and ensure the celebration of the marriage.
In making the decision, the court must always take into account the interest and benefit.
of the minor himself.

State of health
In the legislation of many countries, it is required for the engaged couple to have a medical certificate.

proof that they do not suffer from contagious or hereditary diseases, having
in view of protecting the health of society in general.
 In these cases, marriage cannot be celebrated without being presented with a
prenuptial certificate, issued by a doctor, stating that the bride or groom is physically
fit to enter into marriage and certifying that he is not a carrier of hereditary disease or
contagious.
The clarification about the overall physical situation of each spouse is a
duty that is imposed on both parties intending to get married, given
that marriage will result in a full communion of life that involves sexual life
reciprocal and as a rule, the procreation of common children.
It is therefore essential that the bride and groom know if there is a risk of contamination

contagious diseases or hereditary disease genes, transmissible to

descendancy.
The issue arises with particular acuity in the sub-Saharan region of the continent.
African where the scourge of the spread of the V1H virus and the syndrome settled.
Acquired Immunodeficiency—AIDS. Law No. 8/04, of November 1st, which has as
the purpose is the comprehensive protection of health in prevention, control, treatment and

HIV/AIDS investigation imposes the duty on those infected to inform about their
situation the respective sexual partners.
Now according to the provisions of Article 15 of the same law, the bearer who does not

fulfill the mentioned duties imposed on you incurs the penalties therein
planned/12*
The intentional transmission of the virus is punished as a crime of poisoning and the

merely negligent like the crime of negligent homicide The Preliminary Draft of
The Penal Code provides for a less severe punishment.
Among us, the medical opinion prevails that they should not be allowed.
marriages between two people with blood disease, predominant in countries
of tropical climate, sickle cell disease, commonly referred to as 'sickle cells'
falsiformes, given that the fact that both parents are carriers of the genes
of this disease, this will lead to it being transmitted hereditarily to
descendants. "It is considered important to systematically implement in the country,
genetic counseling, as a way to gradually reduce and dilute the Gene S in the
most affected communities.
 The impotence or sterility of the spouses does not, by itself, lead to
impossibility of entering into marriage.
The proof of the health condition of the bride/groom was not required by the
Civil Code, nor is it by the Family Code, so there is no need to provide proof of
physical fitness of the bridegroom for marriage.
Moreover, it is worth noting that people who are eventually carriers of diseases
hereditary and contagious can maintain a de facto union, which would not prevent the
harmful effects of the transmission of these diseases among themselves and to descendants.

2—Marriage impediments
In addition to marrying age, the law requires, as a defining element of capacity
marital, a negative circumstance that does not occur in relation to the
marrying without any marital impediments.
The rules that establish marital prohibitions must be
considered as rules of an exceptional nature and therefore of restricted interpretation,
they indeed restrict a fundamental right of the human person which is the right to
to marry.
Marital impediments can be classified as impediments
absolute diriments, relative diriments, or merely impediments
impediments.
We can thus conclude, conversely, that there is marital capacity.
when there is no marriage impediment provided for in the law.
This was an understanding of Article 1600 of the Civil Code, which defined the general rule of
who had the capacity to enter into marriage all those in whom it was not verified
any of the marital impediments provided for therein.
An identical rule is stated in the Family Code (art. 23): "They have
capacity to enter into marriage all those in whom none of the
marriage impediments provided for in the following articles or in special law.
recent diploma that approved the Statute of the Diplomat, Presidential Decree No. 209/11
On August 3rd, the prohibition for diplomatic employees to contract was approved.
marriage or having a marital connection with a person of foreign nationality or
that receives any type of remuneration from a foreign state—art. 41, n. 2.
The doctrine usually distinguishes between diriment impediments and impediments.
not definitive or merely impeditive. The impediments are generally facts
legal impediments to the conclusion of the marriage.
The disqualifying impediments are those that dissolve or destroy the
effects of marriage.
The prohibitive impediments are, therefore, those that forbid marriage from
They are celebrated and usually classified into two categories:
a) absolute diriment impediments;
b) relative diriment impediments.
The first ones prevent the person in question from marrying anyone: they say,
therefore, absolute diriment impediments.
The relative diriment impediments only prevent two people from
they marry each other, but do not prevent each other from marrying someone else. But both
others prevent the marriage from taking place. In a broad sense, all impediments
constitute obstacles to the lawful and valid celebration of marriage.

a) Absolute diriment impediments

Dementia
The first absolute impediment is that of dementia. This prohibition of
to contract marriage is based simultaneously on two reasons: not to allow the act
the marriage may be celebrated by someone who does not have the capacity for discernment to
understand the scope of the act they perform and therefore the personal and social effects of
marriage and prevent individuals with psychic flaws from passing them on to
your descent.
Incapacity due to dementia encompasses not only the interdiction due to dementia.

decreed by judicial sentence, and recognized from a legal point of view, but still
the notorious dementia, which means, that which is evidenced as a public fact, and that
therefore it is generally known in the environment where the bridegroom lives. The dementia will be
considered notorious when it is known publicly by people in the social environment
in which the bearer of the disease lives, even if it is unknown to the other spouse.
In legal terms, dementia encompasses all the various diseases of the mind.
psychiatric, whether of whatever nature, and not just dementia in a clinical sense.
Dementia constitutes a cause of marital incapacity even if the
marriage should be celebrated during a lucid interval of mental illness. In fact, there is debate about whether it is

It is possible to speak of lucid intervals in a mental patient because there are scientists who support this.

that the disease is always underlying, although it may have crisis periods in which it manifests.

This aims to protect social interests that are harmed by the celebration
of a marriage with harmful consequences for the other spouse and even for oneself
demented and for the possible offspring.

In certain legislations, dementia is regarded as a cause of absolute nullity.

of marriage due to a defect in consent.
If there is a sentence of interdiction or disqualification due to a previous psychological anomaly

to the marriage, she absolutely prevents the celebration of the marriage, as long as it is not

lifting of the ban.

If the interdiction sentence is later, but it establishes the onset of the illness
mental at a date prior to the marriage, it is null and void. Article 1601.
paragraph b) of the Civil Code provided for this impediment, stating that it encompassed the
notable dementia, even during lucid intervals, and the interdiction or disqualification
due to psychic anomaly.
In the same sense, the Family Code absolutely prohibits the
marriage in the case of dementia, when it is evident, or in the case of interdiction or
disqualification due to psychological anomaly (art. 25, paragraph a)).

b) Previous marriage or legally recognized de facto union

The second absolute diriment impediment arises from the fact of the existence of
previous marriage not dissolved or de facto union legally recognized, which,
as we will see, it produces the effects of marriage.
The marriage may have been celebrated in the country or abroad or may have been
celebrated in civil or canonical form, as long as under legal conditions to produce
civil effects. Item b) of
 Article 25 of the Family Code states that marriage or de facto union
legally recognized prevent marriage to any other person while the
marriage or the previous union has not been dissolved.
This impediment aims to enshrine the principle of monogamy, common to
all democratic countries. It derives from the concept of equality of rights and duties
of man and woman in marriage, complementing it with the very concept of
marriage, which is based on a full communion of life between husband and wife.
Bigamy or polygamy, which presuppose the simultaneous existence of two or more
marriages celebrated either by a man with more than one woman, or by a
women with more than one man are not allowed in our legal system. There are those who
speaking of successive polygamy when someone dissolves a previous marriage, by
divorce, to, after the dissolution, marry another spouse.
Anyone who is married cannot enter into a new marriage while the
previously not dissolved, so only those who are in the state can marry
single, widowed, or divorced.
The common-law marriage, to produce effects as such, requires a process of
recognition.
The recognition of de facto union for the purpose of establishing impediment
matrimonial must be prior to the marriage and resulting from the mutual agreement of the
companions, through a proper process and an administrative dispatch of
recognition, which should then be subject to registration in the proper book, as mentioned later

we will study.
However, the existence of a common-law union does not prevent the celebration of marriage.

even when gathering the legal requirements for recognition, provided that the
recognition if it has not previously operated, through the common agreement of the
partners. The mutual agreement for the recognition of the de facto union is essential
for your recognition, as we will see.
c) Relative diriment impediments
These marriage impediments are based on the existence of certain ties.
existing relatives between two people and still in the existence of a serious illegal criminal fact
(intentional homicide committed by one of the betrothed against the spouse of
(end). Although they are designated as relative diriment impediments, they
they absolutely prevent the wedding between the parties involved from taking place.

If despite the impediment, the marriage is celebrated, the existence

The impediment is a cause of invalidity and leads to the annulment of the marriage.
The disqualifying impediments related are defined in the body of article 2.
Family Code as those that 'prevent the celebration of marriage between each other of the
people whom they respect.

They apply to relatives and in-laws in the direct line (letter a) of the article) and only

relatives in the 2nd degree in the collateral line, that is, siblings by blood ties
or adoptive (paragraph b) of the provision). ;rr

The item c) of the same art. 26 refers to the pronouncement as author or by

intentional homicide against the spouse of another. "undo ^... *rr - degree of collateral line
It is based on the prohibition that human societies have raised against the practice of incest.
.1^16^ From
The repudiation of incest is one of the most enduring taboos throughout time.
but in retreat, the human felt the exoeamia as
with new elements, found outside the family, opting for the exogamous form
of more wholesome propagation of the human species

Civil Law - The Family

As we have seen, human societies have always banned relationships.
incestuous between ascendants and between siblings, having persisted in certain classes
aristocratic even in historical times.
There are ethical reasons that punish incest, in some cases as a civil offense,
in others even as a criminal offense.
There are those who distinguish between absolute incest, which will be that which arises from

relations between relatives in a straight line or in the second degree of the collateral line, and incest

relative, referring to the relationships between relatives in the third degree of the collateral line, between

uncle-niece or aunt-nephew.
 The civil law, when referring to 'kinship', specifies that it is not necessary for it to be
established and formalized in terms of civil registration, it is sufficient for the simple existence of

de facto relationship.
This is the understanding enshrined in Article 1603 of the Civil Code, according to the

what kinship, even if not recognized, constitutes an impediment when established in

preliminary process of publications prior to the celebration of the marriage. Therefore, a
once the question of the existence of kinship is raised, although it is not properly
established, the Registrar of Civil Registry must suspend the process for the
investigation of the fact. If it is proven, the marriage cannot be celebrated. The proof
made in this preliminary process cannot be valid for any other effect (art. 1603).
of the Civil Code). The result of this assessment can in turn be contested in
common action by people who show legitimacy to contest kinship.
The Family Code does not expressly cover this scenario. Nevertheless,
it should be understood that kinship, even if not formally established, constitutes
impediment to the celebration of marriage, as the purpose of the law is to prevent it from occurring.

marriage between people linked by very close blood ties.

Regarding the Family Code, we still have to take into account that the
Kinship is established either by blood ties or by adoption. Therefore, the prohibition
includes adoptive parents in a direct line, that is, the adopter and their respective
ascendants and descendants and the adopted and their descendants.
The prohibition of marriage between siblings applies to all siblings, whether they are
bilaterals or Germans, whether unilateral, uterine or consanguineous brothers, whether
adoptive siblings.
On the other hand, the adopted one, although by the effect of the constitution of the bond of

adoption sees the extinction of natural kinship ties with your previous relatives—
what can happen simultaneously regarding the paternal and maternal branches, or only in
In relation to one of the branches, as we will have the opportunity to see, is impeded from contracting the

marriage with your natural relatives in a straight line or in the second degree of the line
collateral, understanding that the bond of natural kinship does not extinguish for purposes
to constitute a marriage impediment.
 In fact, Article 206 of the Family Code states that "the dual adoption of
it extinguishes the ties of kinship between the adopted child and their natural relatives,
which will only be for the purpose of constituting matrimonial impediment.
The affinity relationship in a straight line also constitutes an impediment.
decisive, no longer constituting an impediment to affinity in the second degree of the line
Collateral. It is indeed forbidden for a father-in-law and daughter-in-law, son-in-law and mother-in-law, stepfather-

stepdaughter, step-son, stepmother, but marriage between siblings-in-law is allowed. Certain

legislations, such as Italian legislation, provide for the prohibition of

marriage between second-degree collateral relatives, provided that this is,
disposable nature.
The impediment due to the bond of affinity persists even if the
the marriage from which he derives may have been dissolved, since the bond of affinity
does not extinguish with the dissolution of marriage. This is the legal position adopted by the article.

15th of the Family Code.

There is no longer a marital impediment between a relative and their respective spouse.

for example, the stepfather of an individual may, upon their death, contract
marriage with the respective widow.
Conjugicide is the diriment impediment referred to in item d) of
art. 1602 of the Civil Code, as provided in item c) of art. 26 of the Code of
Family.
According to Article 1602, paragraph d), the conviction for homicide should be included in

final decision, which must be a conviction due to the practice

of intentional homicide and not of involuntary homicide. This prohibition encompasses
both in the form of criminal participation as authorship and as complicity. Also
various forms of the crime's execution are covered, that is, the consummated form,
frustrated or tempted.

This rule is based on principles of moral order and is common to many

legislations.
It prevents, for example, the widowed spouse from remarrying.
with the author of the homicide crime of which the deceased spouse was a victim, and the
The decisive impediment exists whether the surviving spouse participated in the action.
criminal, whether completely indifferent to it.
It would be shocking to the conscience of citizens to allow a spouse to come
to marry the killer of your husband or wife.
In the Family Code, the wording is different because it merged into a single one.
legal provision what was contained in the provision of the mentioned item d) of article 1602.
which was provided for in paragraph c) of article 1604 of the Civil Code.
And this happened because the explicit reference was eliminated in the Family Code.
to the impediments that hinder.
For this reason, the impediment arises from the moment the order has been issued.
of the accused's pronunciation for the crime of intentional homicide against their spouse
it continues until the defendant is no longer charged or acquitted by decision
final judgment—art. 26, paragraph c) of the Family Code.
It can be inferred that, conversely, if there is a conviction with res judicata
judgment of the other spouse, the impediment persists, completely harming the
possibility of the marriage taking place.
The draft Criminal Code punishes the celebration of marriage as a crime.
with inducement in error about impediment and also when there is knowledge and
concealment of impediment by one of the parties getting married. (I7)

d) Impeding obstacles
Article 1604 of the Civil Code also provided for mere impediments.
impediments: those whose existence obstructed the realization of the marriage but not
they affected its validity, if the marriage had been celebrated. The employee of
The Civil Registry would face disciplinary sanctions, with the engaged parties subject to the penalties.

special provisions set out in Articles 1649 to 1650 of the Civil Code (generally speaking)
economic nature.
The Family Code has eliminated, as mentioned, the specific reference to
impeding obstacles.
But article 23, when referring to matrimonial capacity, mentions not only the
impediments provided for in the Code itself but also those that are set forth in special law.
It was thus left open that certain laws could come to condition the
right to marry subject to obtaining certain authorizations.
Effectively, there are certain situations in which one can prevent that one
contract the marriage (as in the case of active military service), or if it can
it is required to obtain a license for its celebration.

It was thus left open that special laws, such as the Statute of
Diplomat, restrict the marriage capacity.
It is interesting to compare how they were or were not adhered to in the Family Code.

merely impeditive obstacles provided for in the Civil Code.

They were the following: Intramural deadline
It is not provided for in most current legislation. No. 1 of 1605 defined the
concept of non-judicial term as the period of time that elapsed between the date of
dissolution, declaration of nullity or annulment of a marriage and the date from which
which could the ex-spouse come to enter into a new marriage. This interim period came
fixed by law at 180 days for men and 300 days for women.
The reason for this impediment was based on social reasons, which
they intended to prevent someone who ended a marital life with a person from coming to
to quickly remarry someone else.
Certain legislations designate this period as "widowhood period" or "mourning period".

widow.
Regarding the woman, the issue of turbatio sanguinis is invoked, that is, the
uncertainty about the true parentage of the child born in the three hundred days that
they occurred after the dissolution of the first marriage.
As we had the opportunity to explore, the law establishes the so-called 'period
legal of conception" in order to, based on this concept, be able to attribute the paternity of the husband

regarding the children conceived and born during the marriage.

Now, the Family Code in its article 165 provides for the case in question, in part
regarding the general rules for establishing paternity, stating that, in the case of a second
mother's marriage, before the previous marriage was dissolved or within 300 days
After its celebration, paternity is presumed to be that of the husband of the marriage.
celebrated in last place. However, this is merely a presumption that can be rebutted
by the interested party.
Article 1605, no. 2 of the Civil Code allowed the woman to contract
marriage within 180 days after the dissolution of the previous marriage, as long as
that obtained a court declaration of not being pregnant or if in the meantime she had had one
child after the dissolution of the marriage or the declaration of nullity or annulment.
This provision had already been subject to modification by Article 8 of Law No. 53/76, which
established that the intermarriage period was counted from the final judgment of the
separation of persons and assets, which had been converted into divorce, or
from the date of abandonment of the home or the de facto separation, as long as it had been
recognized in a final judgment.

The legal sanction for the celebration of the new marriage without observing the deadline.
The interspousal pact was provided for in Article 1650, number 1 and consisted of causing the spouse to lose

the assets that he/she had received as a gift or inheritance from the first spouse.

3rd degree collateral relationship

This impediment prevented marriage between uncle and niece or aunt and nephew, and
provided for in paragraph b) of article 1604°. But here the Civil Code took a position
different in relation to the establishment of kinship, as this had to be
legally recognized, not enough to prove the bond of natural kinship.
This impediment was, however, subject to waiver, as Article 1609 allowed
that the Minister of Justice or the court, if the bridegroom was a minor, authorized the
wedding.
Eugenics reasons lead to the principle that marriage is not allowed.
between such close parentheses. But if, hearing appears medical, it is concluded that there is no

health reasons that discourage marriage can allow it. Already before
we mentioned why the Family Code does not include kinship in the 3rd degree of
collateral line between marital impediments.
Article 1604 of the Civil Code also mentioned the impediments to the bond of
guardianship, custodianship, and legal administration of assets, which are of a temporary nature, and art.
1608 of the Civil Code referred to the bond of restricted adoption, which is a legal figure.
that has not endured between us since the approval of Law No. 7/80, of August 7.
The consent, its personal and current character
The second substantial element that integrates the act of marriage is the element
psychological and subjective: the will of the groom.
The autonomy of will in the celebration of marriage, which translates into freedom
matrimonial is considered a fundamental right of the human person, a
true right of personality.
Consent must therefore have an eminently character.
folks. This is the rule established in article 1619 of the Civil Code and now contained in no.
1 of article 35 of the Family Code according to which 'It is essential for the validation of the...

marriage in which each spouse expresses their will clearly

to contract marriage with the other spouse.
Posting the law to the essentiality of the will of the future spouses, it distances itself from

absolute, the will of the families.

When one of the parties is represented in the marriage ceremony by a
Procurator, the law requires that the power of attorney be of special nature, which means that
it is valid solely for the celebration of the act, and must explicitly mention
what is the person of the other spouse. It is what is prescribed by number 2 of article 35: 'In the case of a

both parties must be represented by an attorney-in-fact, and the power of attorney must have special powers

for the act and specify

the person of the other spouse." From this, it is inferred that only one of the spouses can

to have it represented by an attorney and not both simultaneously.

Consent in marriage, as we will see when studying the formalism of
your celebration is expressed by the phrase that is said after the question asked by the

Civil Registry Officer, as stated in the Marriage Act Regulation,

currently in effect. This does not prevent it from being replaced by another form of expression.
from which one can infer, without a doubt, the existence of the will of the groom.

As we saw earlier, the law allows, in the case of marriage of a deaf-mute, that he ...
expressed by an interpreter, as in the case of newlyweds who do not understand the language
in which the act is celebrated. The declaration of acceptance of the marriage must be pure and

simple, it is not possible to formulate any conditions or terms for

acceptance of the legal business of marriage. If the bride or groom wants to add any condition
such clause should not be consented to and the statement should not be accepted. But if,
if any clause has possibly been incorrectly bet, there are those who understand that it has
to choose one of two solutions: either the clause is null and the marriage is valid, or it is
The clause is valid and the marriage is null.

To be valid, the consent must also be current, which means that it

it must exist at the moment the marriage is celebrated. This is the reason
fundamental to the departure from the principle that assigns any relevance to the promise of
marriage that has been formulated in advance.
The desire to marry has to exist at the moment when the act is celebrated.
marriage, being irrelevant whether it existed before or not. If the marriage has
having been held by means of power of attorney, it is necessary that the power of attorney is valid

at the time of the celebration, that is, that has not expired or that has not been
object of revocation. Article 1621 of the Civil Code regulated the case of revocation or
expiration of the special power of attorney for marriage, allowing for its revocation in
anytime, but holding the groom responsible for the damages that
caused in the case of the marriage being celebrated.
The death of the principal extinguishes the powers conferred by the bridegroom to

A constituent, just as death extinguishes the powers that have been granted to it.
in the power of attorney.

The Family Code does not provide for these situations, which must be regulated in
general terms of revocation and expiration of the mandate with representation,
always allowing for its revocability under the general terms of the law, but imposing
to the principal and to the agent the duty to inform about the revocation as soon as possible
diligence or the fact that has caused the power of attorney to expire.
 CHAPTER I II.
FORM OF THE MARRIAGE ACT
Formality
The third essential element for the validity of the marriage act is the form of the
marriage, this is the form to which the legislator gives the greatest importance and that
characterized by the existence of a preparatory administrative process for marriage and
by the solemn and ritual form to which the celebration of the ceremony is subject and, finally, by the

the requirement to register the act that has just been carried out.
This legal principle is enshrined in the Family Code, art. 27: "0
marriage is only valid when celebrated before the Civil Registry authorities or
recognized in accordance with the rules of this law.
In this provision, legal validity is recognized, on one hand, to the acts of
marriages that cover the legal form provided by the law itself and, on the other hand, to those
to be recognized by legal means. It was intended to encompass marriages
that are subject to transcription in the Civil Registry, as well as those that may arise
recognized by judicial decision, as happens when there is a lack of the act of
registration.
The provisions of the Civil Code and the Civil Registration Code have been amended.
Regarding the act of marriage under Law No. 11/85, of October 25, which came to exclude the
validity of canonical marriage, in addition to introducing significant changes to the rules
that regulate the marriage process and the very process of the celebration of marriage,
specifically regarding the adoption of surnames by the spouses.
Law No. 11/85 was, as provided for in it, subject to regulation by
Decree No. 14/86, of October 2. They were thus amended and consequently
repealed the provisions in the Civil Registry Code (arts. 166 to 236) that stated
regarding the matter in question.
This Decree No. 14/86, which contains the Marriage Act Regulations
(abbreviated, R. A. C), published before the enactment of the Code of
Family needs to be adapted to this Code, in everything it has changed the
two previous diplomas (the Civil Code and Law No. 11/85 itself); however, the R. A.
C. remains in effect and as such will have to be the subject of our study.
 The formalities that marriage is subject to can be subdivided into:
Preliminary formalities for the act of marriage;
Formalities of the marriage celebration.

The preliminary process

The preliminary process is a preparatory formality for marriage that,
as stated in Article 28 of the Family Code, is intended to prove the capacity
matrimonial of the spouses.

The Civil Code (art. 1610) stated that the celebration of marriage was
preceded by a publication process; today, the Family Code speaks of process
preliminary.
The difference between these two provisions lies in the elimination that was carried out.

in the Family Code, the term 'publications' corresponds to a simplification

that was operated on in the very process that is pending before the Civil Registry authorities, for having

the phase of publishing the announcements has been suppressed.

The purpose of the preliminary process is to ensure that the entity that will enter into the
marriage certificate (which can be either the one that organized the preliminary process or another)

that the parties have the capacity to marry for the act. This capacity will be
demonstrated not only by the necessary documentation for the instruction of the process but also

for the sworn declaration required of the betrothed.

It seeks to prevent the celebration of a marriage that is flawed by defects
substantial, that may result in its annulment, with the serious consequences that arise from it
They result. Also, to a certain extent, the formalism necessary for the practice of marriage.

allows the couple to have a certain lapse of time to weigh the

consequences of the act that they will celebrate and the weighty effects that, through it, will occur

to affect each person's personal life, seeking to avoid hasty resolutions.

The preliminary process unfolds in the following phases: a) Initial declaration
This is a declaration whose model is published at the end of the R.A.C. and that
is signed by both parties. Article 29 of the Family Code, improperly,
it mentions that the process begins at the "request" of the parties involved, when it should have been before.
to say by the "initiative" of the betrothed, since, once the initial declaration is drawn up,
The process is officially opened at the respective Registry.
According to article 1 of the R.A.C., the organization of the preliminary process is the responsibility of

competence of the Civil Registry Office in the area of residence of either party
engaged in the last 30 days. The marriage declaration must be made in person.
by each of the parties or by an attorney with special powers for this purpose—art. 2.
This statement must contain the essential elements for personal identification of
the spouses, from their ascendants, from the guardian, if there is established guardianship. In the case of

in second marriages, the name of the previous spouse and the reason for it should be mentioned.

dissolution of marriage. It should indicate whether any of the spouses have children, how
The provisions of subparagraphs a), b), c) and e) of paragraph 2 of Article 3.

The paragraph f) of this article 3 is revoked, as the Family Code does not provide for the

celebration of prenuptial agreements.

In the case that the spouses wish to choose the regime of separation of property,
They must already make this mention in the initial declaration—art. 29, no. 3 of the Code
Family.
Various documents must be submitted with the marriage declaration.
proofs of your marital capacity, the most important of which is the certificate
of the birth certificate of the contracting parties (art. 4 of Decree No. 14/86).

According to previous legislation (Civil Registration Code), the process that

before marriage it was designated by a publication process and contained the form of
advertising intended to inform third parties about the wedding project, in order to
that, if someone knew of the existence of a marital impediment, they could come to give
awareness of the fact to the Civil Registry official.
This formalism was inherited from canon law, which requires the publication of the "
baths » proclaimed orally in places of worship during the 3 weeks that
precede the celebration of the marriage.
In civil marriage, announcements began to be posted on the door of the
Civil Registry Offices. But because the public does not have the habit of reading these
notices, such formalism only served to overload the work of the Registries, already in
they are very needy of resources, both in staff and in material means.
 To bypass this excessive formalism, the 'publications' were abolished,
replacing them with a sworn statement.
It should be noted that, nowadays, such formalism is no longer applied in a large number of

legislations. In certain countries like Brazil, marriage announcements to be made are

published in the press what becomes more effective.
The current preliminary process requires the Registrar to clarify the parties intending to marry.

what are the marital impediments provided by law—art. 29, no. 1: 'The process
The preliminary is initiated at the request of the betrothed, who will be previously informed.
two matrimonial impediments.
After being aware of what these impediments are, the betrothed must
declare under oath whether or not they are covered by any of them.
The marriage declaration is made under oath and false declaration makes
incur the newlywed in criminal and civil liability"—art. 29, n. 2.
b) Opposition to marriage
After the submission of the marriage declaration, the law provides that it may be
opposition raised to its celebration.
The legitimacy to oppose is provided for in the Family Code (art.
30.°, n.° 1), which imposes on any citizen who is aware of the existence of
any impediment to the celebration of the marriage, the civic duty to come and declare the fact
until the moment of the celebration. No. 2 of this article 30 states that the declaration is mandatory.

for civil registry employees.

By majority of reason, in its functions as a Public Prosecutor, the representative of
The Attorney General of the Republic must oppose the marriage when having
knowledge of the verification of impediments.
Article 9 of the R. A. C. provides for the case of raising an impediment by anyone
person, wants the fact that the Conservator, in this or another way, comes to have
knowledge of the existence of impediment.
The opposition can be deduced in different ways, namely by the parents.
a minor bride to whom permission to marry has not been granted by the spouse
of a bride who intends to enter into a new marriage without having dissolved the previous one, etc..
 Deduced opposition, or having knowledge of impediment, the Conservator
must proceed with evidence gathering and suspend the progress of the process. If it concludes
due to the existence of an impediment, must refuse to celebrate the
marriage. From your order refusing to celebrate the act, an appeal is available to the
competent court.
The appeal against the decisions of the conservators and notaries must be filed with the
respective Provincial Court as provided for in article 31, no. 1, letter c), of 18/88
of December 31, which defines the general jurisdiction of the Civil and Administrative Chamber.

However, given the specific nature of this resource that relates to

family law exercise, it is covered by the jurisdiction assigned to the Chamber of
Family in accordance with Article 32 of the same Law.
If there is no opposition or if it is deemed unfounded, we proceed to the phase
final. c) Final dispatch
Article 31 of the Family Code states in its paragraph 1: "Upon verification of the prerequisites

legal, it is up to the Civil Registry employee to authorize by order the celebration of the
wedding.
The validity period of the decree authorizing the celebration of has been extended.

marriage, due to the difficulty in obtaining the necessary documentation for

the establishment of the preliminary process and the lack of civil registration of a large part of the

population already pointed out. It can be anticipated that, in most cases, these are
the same difficulties, compounded by a lack of economic resources, the reason that leads to
that most of the population moves away from the celebration of marriage and opts for
common-law marital cohabitation, not formalized.
Once the preliminary process is completed, if the couple intends to celebrate the
marriage in conservatory different from that through which the process ran, can request
the certificate for this purpose—art. 13 of the R. A.C.
Wedding celebration
Upon completing the preliminary process, which established the non-existence of
obstacles, and once the authorization order is drafted, the celebration follows
wedding.
 The wedding ceremony is characterized by its solemnity and publicity—art.
32°, n.° 1.
a) Intervention of the witnesses
The ceremony corresponds to a true rite that is followed during the act, in
those called to intervene are the betrothed and the Registrar of the Civil Registry, as well

with two or four witnesses, which serve, as mentioned, to provide evidence of

identity of the parties and the performance of the act itself.
The witnesses also serve to attest to the marital capacity of
marrying and as a demonstration of the social importance given to the act of marriage,
as an act that does not confine itself to the private sphere of the betrothed and reverberates in the community

social in which they live.

Article 25, number 1 of the R. A. C. indicates that the presence of the parties to the marriage is essential.

or one of them and the one of the prosecutor of the other, of the Civil Registry official and of the

witnesses must be at least two and at most four.

In the same sense, Article 34 of the Family Code indicates what must be the
participants in the act of marriage, it should be taken into account, however, that, on the contrary
according to what the body of the article states, the presence of witnesses does not constitute a condition

essential to the validity of the marriage act, as we will see later when we study the
annulability of marriage.
b) Languages and location of celebration

The act can be celebrated in Portuguese or in any of the national languages.

Article 32, number 2 and Article 26, number 1 of the R.A.C.

The location of the wedding celebration is provided for in Article 33 of the Code of
Family and in Article 24 of the R. A. C.. In principle, it must be carried out in a location
appropriate that allows the act to unfold with the dignity that its importance requires
social requirement.

It may be in dedicated rooms for the purpose of the Registries, at the headquarters of

local government, or in legally recognized cultural and recreational institutions. It is

also allowed for the marriage to take place in residences, as long as it is
authorized by the Civil Registration authority—n.° 2 of art. 33.
 It is also provided for in paragraph 3 of this article that, in rural areas, measures are to be adopted.

forms of celebration adapted to local conditions, therefore, in that case, the

the ceremony may take place at the meeting place of the population (a 'jango', a tree)
majestic, etc.
c) Public and solemn form
The formalism to be used during the ceremony is established in the aforementioned.
Article 26 of the R.A.C., which stipulates the various phases of the act, which must necessarily have

that takes place publicly.

Indeed, in addition to being a solemn act, marriage is a public act.
expresses the already mentioned article 32, number 1, which means that the public must be admitted

freely on site.
The doors of the room in the building where it is celebrated are the registry office.
Buildings, whether a residence or another location, must remain open to allow
that, until the time of the celebration, anyone who wishes to do so may come forward to say something about

the existence of impediments to the realization of marriage. The public must have freely
access to the wedding celebration venue, which excludes the possibility of any
form of secret marriage.
The different phases of the wedding celebration essentially consist of
next:
a) the reading of the documents that instructed the preliminary process;

b) the granting of authorization, in the case of marriage of minors, when still

no
has been provided, or from the statement of opposition, by whoever has to provide it;
c) a call to those present about whether anyone has knowledge of any
obstacle that prevents the marriage from taking place, which, if it occurs, will lead to
suspension of the celebration of the act;

d) if this does not occur, the betrothed will then be questioned about whether they accept the

other nuptial by consort;

e) each of the summoned must expressly state the legal phrase: 'It is from
my free will to marry <F>, indicating the full name of the other spouse.
 Once consent has been given by the spouses, the Registry official
Civil will declare, in the name of the Republic of Angola, the newlyweds - identified by the

full names—united by marriage.

In appreciating the legal nature of the act of marriage, we have already analyzed the issue.

regarding the moment when the act of marriage should be considered celebrated. If
the one in which the bride and groom formally express their consent or the one in
that the employee proclaims their union. We understand that the employee's declaration is
indispensable to the legal effectiveness of the declaration of the spouses, because it is he who declares

the newlyweds united by marriage.

d) Optional declarations
The marriage ceremony has been carried out and the declaration of the newlyweds has been received by

Civil Registry Officer, there are two optional declarations that may
to be carried out in a continuous manner and which are respectively:

declaration about the adoption of the name, as provided for in Article 36, number 1 of the

Family Code. And that, as we will see, can be the adoption of the other person's surname or
a common family name.
- declaration to confirm your choice for the separation of property regime, if applicable

this is the regime they want to apply in their marriage—art. 49, no. 2 of the Code
of Family.
The practical relevance is still what is stated in Article 164 of the Family Code.
which provides for the existence of common children of the spouses whose declaration of filiation does not

has not yet been completed.

As we will see later, this provision aims at the effective protection of the interest of

children born or conceived before marriage, anticipating that the parents

make the declaration of affiliation as soon as the act of marriage is celebrated, being the responsibility

the Civil Registry Conservator shall make the corresponding annotation to the record of

birth, if that is the case, such registration being of an official nature.

Urgent wedding
The law allows that, in certain exceptional cases, marriage may be celebrated.
without the formalities normally required for the act.
 According to the Civil Code, the exceptional cases in which this could happen were
the two marriages in articulo mortis, that is, the one in danger of imminent death of someone
two spouses or the imminence of childbirth—art. 1622.
Today, the urgent marriage is foreseen in article 37 of the Family Code,
what provides for such an exceptional form of celebrating marriage when:
a) there is founded fear of imminent death of one of the spouses, even if
derivative of external circumstances;
b) there is an imminent delivery.
The fear of imminent death may arise from the fact that one of the partners is in a situation.

in danger of life or from external factors affecting the persons of the spouses that cause concern for their

lives, such as in situations of war, danger of epidemic or natural disaster,

etc..
All these situations related to either of the parties or resulting from
Objective external circumstances may justify the urgent celebration of marriage.
In this case, there may not have been a preliminary process with the Civil Registry employee.
being called to celebrate the ceremony or it may even happen that the employee is not present
present and the marriage to be celebrated in your absence.
Nonetheless, the urgent marriage must comply with a certain formalism.
as expressed in article 27 of the R. A.C.
Article 28 of the R.A.C. orders the provisional registration of the marriage.
urgent. No. 2 of this article 28 refers to the urgent marriage that has been celebrated
on a campaign or on a sea voyage or aboard an anchored ship.
Subsequently, the process of assessing capacity will need to be organized.
matrimonial covenant between the spouses, as this is an essential condition for the validity of the marriage. The

The marriage certificate is only valid when the Civil Registry employee pronounces it.
the homologation order.
Approval can be refused if the legal requirements are not met,
the legal formalities have not been observed or there is some impediment
decisive—article 31 of the R. A.C.
The urgent marriage that has not been ratified is considered legally
nonexistent.
 The marriage registration: registration by inscription and registration by transcription
Upon completion of the solemn act of the civil registry celebration, the act must take place

instrument that consists of recording the marriage seat—art. 40 of the Code of

Family and article 38 of the R. A. C.

It is drafted by the Civil Registry employee and must be signed by the

the newlyweds, by the witnesses and by the Civil Registry official. If any of the newlyweds
For minors, the person who authorized the marriage must also sign—Art. 39.
do R. A. C.
The registration of marriage is mandatory (art. 38, no. 1 of the Code of
Family) and constitutes a privileged means of proof of marital status.
The registration has retroactive effects to the date of the celebration of the marriage, which has

especially relevant in cases where the registration will only take place after the
marriage.
It is by the registration that the marriage is proved and demonstrated erga omnes.
the legal status of being married, a situation that cannot be invoked without it
neither between the parties nor in relation to third parties.

The loss of the record may exceptionally occur when, for example, it has
due to the destruction of the register book where it was recorded, when the official has it
improperly written on a loose sheet that has been lost, etc.
But it may happen that the act was not recorded in bad faith by the person himself.

employee of the Registry or due to force majeure. We will then be facing the absence of
record, a situation that is different from that of your subsequent disappearance.
It may happen that the spouses live under the belief of the existence of the registration and in the

couples may only realize very late that the registration of

This does not exist or has been destroyed. Article 41 of the Family Code provides the way to supplement.

whether the lack or the disappearance of the record. This may even happen after death of
one or both spouses and for the children to verify the non-existence or the loss of the
registration. The law provides for judicial recognition of marriage in the case of lack of registration

and the supply of the missing record, as provided for in the Registration Code
Civil.
 The effects of these procedures will have retroactive effects to the date of the celebration of the

marriage. However, these effects may not apply to third parties, such as
have understood the jurisprudence.
The registration of the marriage can take two forms: registration by inscription
and the registration by transcription.

Article 39 of the Family Code distinguishes between registered marriage by

registration and marriage recorded by transcription.
The marriage registered by inscription is one whose record is made right after the
wedding celebration (art. 40 of the Family Code) what happens:
a) in cases of marriage celebrated before the Civil Registry official,
that is, from a marriage celebrated in Angola;
b) in cases of marriage celebrated before a diplomatic or consular agent
Angolan, that is, from a marriage celebrated abroad.
Article 38 of the R.A.C. mentions the form of registration of the marriage celebrated by
Civil Registry official, stating that it is recorded and signed immediately after the act
solemn. The marriage celebrated before the Angolan diplomatic or consular agent comes
provided for in Articles 32 and following of the R.A.C.. The diplomatic and consular agents
Angolans abroad who are getting married must register it in the book.
own (art. 44) to send the duplicate to the Central Registry Conservatory (art.
46.°).
The marriage is recorded by transcription when legal effectiveness is recognized.
to a marriage that was not celebrated before the Civil Registry authorities.
Article 41 provides for the cases in which the marriage registration is recorded by

a) The urgent marriage that is to be homologated;

b) The marriage of Angolans abroad, outside of diplomatic representation

Angolan
c) The seat ordered to be recorded by judicial decision, in case of omission of
respective seat;
d) The canonical marriage that has civil validity because it precedes the enactment of
Law No. 11/85;
 e) The transcription of a marriage record from a Civil Registry office
or diplomatic representation.
The marriage of an Angolan citizen celebrated in Angola, either with a citizen
national wants with foreign, can be celebrated in the manner and under the terms provided in
article 35 of the R. A. C.
Foreign citizens can freely enter into marriage before their
diplomatic or consular representations, provided that equal competence is
recognized to Angolan diplomatic and consular agents (art. 36° of
R.A.C.).
 CHAPTER I0.
THE MARRIAGE
Brief history of the evolution of marriage
A brief historical retrospective of the institution of marriage shows that, during
For a long period in a man's life, marriage was not formalized by any act.
solemn. It was the establishment of a fully shared life between man and woman,
made for the purpose of founding the family, which characterized marriage. In law
In Roman times, the simple concubinage was already distinguished from marriage by the affectio maritalis.

subjective element that evidenced the common purpose of lasting coexistence among
man and woman.
With the advent of Christianity, religious convictions began to dominate.
the entirety of the institution of marriage, which has come to be considered as a sacrament
in which the divine will intervened. Marriage should, therefore, take on a form
canonical and was the minister of worship who authorized the celebration. Only in a later period

recent, that is, from

From the Council of Trent, in the 16th century, the priest began to intervene in his
celebration, being the issues regarding the validity of the marriage within the knowledge of
ecclesiastical authorities.
Meanwhile, the advent of Protestantism and its predominance in many countries
Europeans came to remove marriage from the control of the Catholic Church, subjecting it to power.
of the State, as a worldly matter. It is the absolute power of the monarch that is being asserted.

In countries like England, the need for the dissolution of a royal marriage led to
the breaking of relations between the king and the Catholic Church, which was a step on the path
of absolutism. The secularization of matrimonial law began in the countries where it
checked the counter-reform, but in predominantly Catholic countries, marriage
was within the competence of the church.

It was with the French Revolution, at the end of the eighteenth century, that this was changed.

situation and started to adopt the conception that marriage is merely a civil act,
based on the free will of the parties and as such not subject to mandatory intervention
from the church. It was on this date that civil marriage of a secular nature emerged,
 Likewise, Articles 34 and 35 of the Code impose as essential the
intervention of the two spouses and their expression of will in the act of marriage,
as well as the intervention of the Civil Registry employee, which clearly indicates to us
which are elements without which marriage does not even exist
legal.
The manifestation of will must be expressed, it must be directed to the other.
it must be produced before the public authority with the competence to
ato.
This understanding is corroborated in light of the content of the provisions pertaining to

nullity of marriage—Chapter IV of Title III of the Code, art. 65 and its paragraphs
a), b) and c)—, which indicate the cases in which marriage can be annulled and say nothing.
regarding the non-existence of the marriage.

Now, if such happens, it is because the marriage was not introduced into the order.
legal. As we have seen, the doctrine includes among the non-existent marriages the marriage
not urgent

approved. We believe that this type of non-existent marriage may be

covered by the provision that relates to cases of non-existence due to lack of intervention
of the Civil Registry employee at the time of the marriage or afterwards,
recognizing its validity by decree.
The fact that the non-existent marriage does not produce any civil effect and that its
non-existence can be invoked at any time and by any means is undeniable
practical effect regarding the distinction between this legal figure and the one referred to
marriage wounded by nullity.
The lack of any of the elements that the law considers essential leads to the
marriage shall be considered legally nonexistent, not being generally necessary
that its non-existence be declared.
When there is non-existence, the act, as if it were nothing, does not produce legal consequences.

Some and the judge has a merely passive and secondary role in his assessment.
Just check for non-existence as you check any other fact whose verification is...
be requested. On the contrary, if the fact came to have legal existence, the judge, in order to do so
not assign the effect that it normally should produce, it will have to act actively and
principal, pronouncing the nullity. Check the existence and pronounce the nullity.
Pires de Lima, 0 Putative Marriage, p. 130. b) Nullity of marriage
When the addiction is the nullity, the legal situation of the act of marriage is

entirely different, for the act exists but was contracted in violation of the rules
established, both regarding the marital capacity of the betrothed and regarding the
mutual consent, regarding the form prescribed by law.
When there is a defect that may be a cause for the annulment of the marriage, the
the vice of nullity must be declared in a judicial action of an impugnative nature
proposal expressly for this purpose. Article 6.° states that, unless declared the
the nullity of marriage is not enforceable for any effect and in no way and
that, before being annulled, the marriage produces the effects of the formal marriage
of the register.

The difference between non-existent marriage and marriage affected by nullity

it resides that the first does not exist as such and produces no effect.
In the second case, it is the judge who must pronounce on the nullity in a proper action.
and to determine the effects it produced according to the specific circumstances of
each case. Although the Family Code does not refer to the inexistence of marriage, the
it is certain that, in any of the mentioned cases, the law does not recognize any of them
legal effect, whereas a null or voidable marriage can produce effects, being-
the applicable case of putative marriage can be found, in certain cases.
Despite the law referring only to the annulment of marriage, the doctrine
distinguish, according to the vices from which the act suffers, between absolute nullity and
relative nullity or mere annulability.
Marriages celebrated with violation would be affected by absolute nullity.
disqualifying impediments (absolute or relative) and would be merely infringed upon.
nullity of marriages celebrated in violation of merely procedural provisions
prohibitive or lacking or defective in will.
The absolute nullity could be invoked not only by either spouse but also
by a third party whose interest in obtaining the annulment is protected by law and also
by the Public Prosecutor's Office, because such a marriage violated a principle of order
public.
In the case of relative nullity, only certain people, the spouses themselves and their representatives

The minor or the interdicted person may request the declaration of nullity.
Moreover, in these cases, the marriage, even if affected by nullity, can be
validated.
They are, therefore, criteria for a broader or narrower legitimacy for the
proposal for the action of annulment or for a greater or lesser extension of the fixed term
In the law for the annulment action to be proposed, which will serve as indicators for us to
to determine whether we are facing an absolute nullity or a mere nullity
relative.
The Civil Code made only a distinction between legal non-existence and the
annulability, not recognizing the figure of absolute nullity.
In canon law, the annulment of marriage whose sanction is recognized
recognition of the defect can be applied to Catholic marriages that had
produced civil effects according to the Civil Code. Hence, in this Code, there are various
provisions regarding "declared null" or "annulled" marriages.
The Family Code also discusses the annulment of marriage and
annulable marriage, without any mention of null marriage.
We can indicate as null marriages those that contain a vice of incest,
bigamy and conjugal homicide. And still those who, although they may be susceptible to validation,

contain the vices of adolescence and dementia.

Regime of nullity
It is discussed in doctrine whether the ruling that decrees nullity has nature
merely declarative or if it has a constitutive nature of rights. In our understanding,
the answer cannot be uniform, as the figure of putative marriage (art. 71° of
Family Code) makes it so that, in this case, the sentence, although annulling the
marriage will be constitutive of rights, recognizing those that have been produced
during the period of its previous validity, that is, during a certain span of time,
whereas, when the sentence will retroactively destroy all the effects produced
 The civil law, when referring to 'kinship', specifies that it is not necessary for it to be
established and formalized in terms of civil registration, it is sufficient for the simple existence of

de facto relationship.
This is the understanding enshrined in Article 1603 of the Civil Code, according to the

what kinship, even if not recognized, constitutes an impediment when established in

preliminary process of publications prior to the celebration of the marriage. Therefore, a
once the question of the existence of kinship is raised, although it is not properly
established, the Registrar of Civil Registry must suspend the process for the
investigation of the fact. If it is proven, the marriage cannot be celebrated. The proof
made in this preliminary process cannot be valid for any other effect (art. 1603).
of the Civil Code). The result of this assessment can in turn be contested in
common action by people who show legitimacy to contest kinship.
The Family Code does not expressly cover this scenario. Nevertheless,
it should be understood that kinship, even if not formally established, constitutes
impediment to the celebration of marriage, as the purpose of the law is to prevent it from occurring.

marriage between people linked by very close blood ties.

Regarding the Family Code, we still have to take into account that the
Kinship is established either by blood ties or by adoption. Therefore, the prohibition
includes adoptive parents in a direct line, that is, the adopter and their respective
ascendants and descendants and the adopted and their descendants.
The prohibition of marriage between siblings applies to all siblings, whether they are
bilaterals or Germans, whether unilateral, uterine or consanguineous brothers, whether
adoptive siblings.
On the other hand, the adopted one, although by the effect of the constitution of the bond of

adoption sees the extinction of natural kinship ties with your previous relatives—
what can happen simultaneously regarding the paternal and maternal branches, or only in
In relation to one of the branches, as we will have the opportunity to see, is impeded from contracting the

marriage with your natural relatives in a straight line or in the second degree of the line
collateral, understanding that the bond of natural kinship does not extinguish for purposes
to constitute a marriage impediment.
be declared as such, and also to those who are notoriously insane to
data of the wedding celebration, although not formally prohibited.
Bigamy
It consists of the violation of the rule contained in paragraph b) of article 25., which contains a

principle of public order. It occurs when someone is married and intends to enter into a new one

marriage before the previous one is dissolved, a fact that entails for the second marriage
the vice of absolute nullity. The first marriage is valid and effective in the legal order,
while the second is wounded by nullity. The coexistence of two is not allowed.
marital ties that compromise the same person.
On the other hand, the common-law union recognized by mutual agreement produces
retroactive effects from the date of the beginning of the union, if it is in accordance with
the law, which implies, as we will see, that both partners have capacity
matrimonial. Now, as soon as the recognition is performed, it will
precisely produce the same effects as marriage, according to what
Article 119 of the Family Code provides.
Incest
Incestuous marriage is prohibited by the provisions of items a) and b) of the article.
26.°, which also enshrine a principle of public order. Incest encompasses the
natural or adoptive ascendants, relatives in the direct line, as well as natural siblings
or adoptive, as this vice will harm the marriage of absolute nullity.
Conjugicide
Who is established in paragraph c) of art. 26., which refers to authorship or complicity
of one of the parties in a crime of intentional homicide against the spouse of the other party.

The vice arises as soon as there is a ruling with res judicata or final decision.
condemnatory. It is also about absolute nullity. Doctrine understands that this
impediment (designated as impedimentum criminis) must be considered as verified
even if the conviction is after the marriage, as long as the crime was committed
committed before the wedding celebration. But it does not cover the forms of
preterintentional homicide or merely negligent.
 6. Lack or defect of will
In paragraph b) of article 65, the following defects are mentioned, which refer to
to the underlying element of the act of marriage, mutual consent. They are:
a) the lack of will;
b) the vice of will;
c) the celebration of marriage for purposes other than those provided for by law.
When analyzing the essential elements of the act of marriage, we saw that one of them
it is mutual consent, which simultaneously requires that there be a declaration of
the will of each of the parties and that this declaration is free of defects.
This is one of the reasons that determines the prohibition of marriage for those who are insane,

once there is no, on the part of the insane, lucid awareness and will that allows them
allow to encompass the content and legal effects of the act of marriage.
It becomes necessary to adapt the general theory of the defects of will to nature.
specific to the institution of marriage within the principles of family law.
a) Lack of will
It is said that there is a lack of will in the case of accidental incapacity of the bridegroom,

due to temporary deprivation of will. This can happen in the case of the
found in a state of complete drunkenness, in a state of being drugged, in the
hypnotized state, or in a state of sleepwalking. Situations like these, although rare
plausible, may possibly escape the observation of the Civil Registry Clerk
You need to verify the urgent celebration of the wedding. The case may be more plausible in
that a drug addict goes to celebrate the act of marriage in a state of partial
inability and without full awareness of the act they are performing.

b) Vice of the will

The pathology of consent occurs even when there is a defect of will,
because in this case the will exists, the declaration was expressed, but it was flawed in the
your education or your freedom of expression, prevailing either the error or the violence
when it was expressed. Here too, the vices of will in marriage differ.
substantially the vices capable of invalidating legal transactions in general.
The Civil Code stipulated that, once the declaration of will was issued,
there was a legal presumption that it was valid and free of defects and, therefore, whoever
It was up to the vice to prove its existence. We believe that this
The principle remains valid.
The vices of the will that can be considered relevant in the matter
what affects mutual consent in marriage is fundamentally error and the
coercion.
The error may concern the physical identity of the other party or about their
essential qualities and can affect aspects of a physical or nature nature
moral. The error must translate into a false representation of reality, whether it is
regarding the actual identity of the other spouse or qualities considered
essential for the normal development of married life or even for behavior
moral of the other.
As relevant in the error that involves the physical condition of the other spouse, we can
point out physical diseases such as epilepsy, AIDS, venereal diseases, multiple sclerosis
plates, and mental illnesses such as paranoia, schizophrenia, alcoholism, the
drug dependence, or sexual anomalies such as impotence, homosexuality and the
that are of a permanent and irreversible nature. Impotence can be impotence
coendi, which prevents the practice of sexual relations, or generative impotence when so
only prevents procreation.
The pregnancy of a married woman due to a third party is concealed from the other spouse,

as long as it is not manifestly apparent at the moment of the celebration of the act
marriage constitutes a relevant error capable of vitiating the groom's will.
The error about the moral qualities of the other party must also be of
essential nature is manifestly incompatible with the moral behavior of this
nuptial. It may consist of the fact that the other nuptial has suffered a criminal conviction in
the greater punishment is having concealed the fact, or dedicating oneself to illicit or dishonorable practices,

like prostitution, drug trafficking, etc..

To be relevant, the error has to be essential, that is, it must pertain to
essential qualities of the other spouse or about the identity of one's own person. This
it can happen when someone falsely claims a certain civil identity
and house under a false name.
 But the error also has to be forgivable, which implies that the spouse
whose will was corrupted should not have been negligent in ascertaining the truth and
to become aware of reality. The ignorance of the circumstances that shape the vice of
Will must be excusable and not the result of negligence of the one who invokes it.
Physical coercion is not widely accepted in the celebration of marriage, although it is
admissible in urgent marriage. Moral coercion or violence is more admissible.
In order for coercion to be established, however, it is necessary that there is a threat with

damage combination, a threat intentionally used by the author to force the

the will of the bridegroom and to take him to the wedding ceremony.

Moral coercion (violence) can manifest through pressures, war situations,

political persecution, etc., must take the form of an actual threat of the practice of
an unlawful act, whether against the person of the bride or groom themselves or against a third party.

Article 1638 of the Civil Code stipulated: "The marriage celebrated under...
moral coercion provided that the harm with which the spouse is illicitly threatened is serious
The fear of its consummation is justified." Moral coercion is provided for in article 255.
Numbers 1 and 2 of the Civil Code.

Dela is excluded both the normal exercise of a right as well as fear

reverence (n.° 3). Therefore, the simple reverential fear that consists of
the fulfillment of the wishes of parents or other older relatives, is not susceptible to
to be relevant as a generator of consent vice.
Fraud is not accepted as an actionable defect, for, according to the old proverb,
It generally happens that "in marriage, those who can deceive do." It is part of nature.
it is human for each of the parties to present themselves before the other party
coated with more qualities and attributes than those it really possesses.
Mental reservation is also irrelevant in itself.
7. Simulation
The vice of simulation occurs when the spouses establish a pact between themselves.
simulation that leads them to celebrate marriage as a true simulacrum of
ceremony, both having agreed with each other that they do not want to establish reciprocity
a true married life. In this way, they externally show a desire to marry, but the
the hidden desire of both coincides in not wanting to live or consider themselves as
true spouses.
The end in sight may be to obtain some benefit through marriage, such as
the change of nationality, tax evasion, the right to a pension from social security
social, the right to transfer the right to lease. But these objectives do not
fit the purpose of marriage, imposed imperatively by law (art. 20): that of
establish a full communion of life. In a simulated marriage there is absolute absence
of marital coexistence.

In the Family Code, the defects of will are not specified, and that the
Article 68 explicitly addresses the legitimacy for proposing the action for annulment.
that it can be proposed by the spouse whose will was lacking, or who was a victim of error or
coercion.
The vice of simulation is mentioned in paragraph b) of article 65, in its final part,
when referring to the marriage celebrated for "purposes other than those provided for in
current law" and also in art. 68., when it mentions who has legitimacy for the
proposal for the action of annulment in the case of simulation.

8. Marriage celebrated without witnesses

Who is included in the provision of item c) of article 34 of the Family Code. How
we saw, in the absence of witnesses, although it cannot be a cause of legal inexistence of the
marriage can be a cause of nullity. We have already mentioned the important role that the
witnesses play a role in the wedding ceremony, especially to attest that
the act took place at a certain location and on a certain date. The marriage without
witnesses can be equated to a clandestine marriage.
It is a form defect that the law recognizes as potentially generating
on the nullity of the marriage. Unlike other irregularities found in
marriage process, whether in the preliminary process or in the ceremony of celebration
the act itself, although it may be subject to disciplinary procedure against the
The civil registry employee who carried them out does not jeopardize the validity of the act.
 Legitimacy and deadlines for the filing of the annulment action A—
Legitimacy
The legitimacy to propose the action for annulment of marriage is
restricted by law to a certain person who is recognized as having a legally recognized interest
relevant for you to be allowed to obtain the legal effect of the annulment of the marriage.
In cases where it is understood that there has been a violation of a considered principle

of public order, it is always allowed that the State itself, through its representative,
the Public Ministry, may propose the action for annulment. Apart from that, the restrictions on

legitimacy for the proposal of the action is based on the principle that one must
defend the stability of marriage. Hence the norms that attribute legitimacy
to come to court shall be of an express and restricted nature and not subject to interpretation
by analogy. It is a waivable legal faculty and an unavailable right.
Action for annulment due to marital incapacity
a) Legitimacy in the cases of paragraph a) of article 65, when the action is based on
in the absence of legal age and in dementia, according to the provisions of article 67, paragraphs

a), b), d) ee):

Any of the spouses;
The parents, adoptive parents, or the person who, in the specific case, should have given the

authorization for marriage provided for in article 24, no. 3;

The Public Prosecutor's Office;

Another person whose interest in the annulment is legally protected, such as

a legitimate heir of one of the spouses.
The legitimacy by someone who is not a spouse ceases when the minor reaches
legal age or when the interdiction due to dementia ends—art. 70, no. 1, item a).
b) Legitimacy in the case of paragraph a) of Article 65, when the action is based on
existence of incest, according to the provisions of article 67, paragraphs a), b) and c):
Any of the spouses, even the spouse aware of the defect;
The Public Prosecutor's Office;

—Another person whose interest in the action is legally protected. The interest
it can be of a moral order, with the goal of putting an end to a scandalous situation, of
asset order, when it comes to defending succession interests or others.
 c) Legitimacy in the case of bigamy or marital homicide, where the same applies
principles provided in the previous action, items a), b), c) and e) of art. 65.
Any of the spouses, including the guilty spouse;
The Public Ministry;
The spouse of the previous marriage in the case of bigamy and in the case of spousal homicide, is not.

consummated and, when consummated, the heirs of the deceased spouse;

Another person whose interest is legally protected. 2. Action for annulment
due to lack or defect of will
In the case of an annulment action due to lack or defect of will, only the spouse whose

lack of will or who was a victim of error or coercion has standing to file the action,
according to what is stated in article 68, no. 1, since it is a matter of the proper forum
the subjective right holder is not able to have this exercised by third parties.
But the law allows that once the action has been filed, if the plaintiff dies while it is pending.

from the cause, their relatives in the direct line and their heirs may proceed with it,
last part of the cited art. 68, no. 1.
3. Action for annulment due to lack of witnesses
In the case of annulment due to the absence of witnesses who should be present at
wedding celebration, as referred to in item c) of article 34, the action can only
to be attempted by
Public Ministry, in accordance with what is prescribed in article 69, and that
refers to the lack of formal requirements of the act of marriage.
Regarding all the actions mentioned above, it is always necessary to pay attention
that, although they explicitly indicate who can, on their own initiative, put
the action to obtain the annulment of the marriage, in the case that the action has already been filed, the law

always assigns the heirs of the author the legitimacy to proceed with the action, which does not
it extinguishes with the death of the respective interested party. This applies whether the action has been

proposal by the spouse wants to by a third party whom the law allows to file the action.
This is what is provided in the body of article 67, which mentions who can continue the action.

And so is article 68, paragraph 1, which allows direct relatives and their heirs
proceed with the action if the plaintiff passes away during the pending case.
 B—Deadlines for filing the action
The action for annulment is subject to a deadline, which also reveals that the law
seeking to safeguard, as much as possible, the stability of the marriage, even
when injured by nullity. In fact, once the legal deadline has expired, the action is no longer
it can be proposed and the marriage, although it has been susceptible to being

canceled, from then on it ceased to be.

The deadlines, as we have seen, are more extended or shorter depending on the
the very nature and gravity of the vice that afflicts the act of marriage. In other words,
words, according to the greater or lesser interest of the State in which the marriage may be
or do not come to be annulled.

The matter concerning the deadlines for filing the annulment action comes
regulated in Article 70 of the Family Code, which states the following:
a) In cases of incapacity due to lack of legal age, dementia or interdiction
for psychic anomaly:
1. When proposed by the incapacitated person themselves, up to one year after reaching the

majority or having the interdiction lifted;

2. When proposed by the Public Ministry or by a third person, up to two
years after the wedding celebration, but never after the bridegroom has reached the
majority, having the interdiction or disqualification lifted or having ceased dementia.
b) In cases of lack or defect of will, simulation, conviction for
intentional homicide of the spouse of another, or of essential formalities, up to two
years after the celebration of the marriage.

c) In cases of incest or bigamy, at any time, but never after

two years after the dissolution of the marriage. In the case of bigamy, the action for annulment does not

it can neither be initiated nor proceed while the annulment action is pending
from the previous marriage.

Validation of marriage
Always keeping in mind the safeguarding of the stability of the family based on
marriage, the law allows that a marriage, despite being tainted by a flaw that affects its
valid and existing at the date of its celebration, may be remedied by a confirming fact
posterior or by the annulment of a previous act that hindered its validity.
We are facing yet another derogation of the general regime governing absolute nullity of
legal acts.
In cases where the validation of marriage is permitted (the ones indicated in the art.

73.° of the Family Code), when the validation occurs, the marriage resurfaces in its
fullness and becomes valid from the date of its celebration.
The confirming act that the validation of the marriage will take place has, however,
what occurs before the final judgment of the sentence that declares the annulment
of the marriage.
The law considers the nullity remedied when, before the final judgment of the
annulment sentence, occur any of the following facts:
a) to marry a person who is not of legal age or who is mentally incapacitated, interdicted or disqualified,

confirmed by the interested party before the Civil Registry official and two
witnesses, after reaching adulthood, after the interdiction has been lifted or
of having been judicially verified of their mental soundness;
b) to annul the first marriage of the bigamist;
c) being the lack of formal requirements due to understandable circumstances,
recognized by
Minister of Justice, as long as there are no doubts about the celebration of the act.

In all these cases, it is anticipated that, due to a subsequent fact, it may come to
be healed of the nullity of the marriage act and, consequently, the defect that is removed.
it was checked at the time of its celebration. In the case of puberty, the fact of having
subsequent authorization does not validate the marriage. Also in the case of bigamy.
the fact that the death of the spouse from the previous marriage occurs in the meantime does not validate the

second marriage of the bigamist.

Moreover, all marriages that must be considered validated shall be considered.
even though celebrated with a vice that invalidates them, they shall not be annulled by
who has the legitimacy to do so, provided that the legal deadlines for the
proposal for the respective annulment action.
 Effects of annulment of marriage - The putative marriage
The annulment of the marriage should have the effects that are stated in the
general rules of nullity of legal transactions in general, that is, the sentence of
annulment should retroactively destroy all effects produced since the date of the
celebration until the date of the final judgment of the sentence that declares the annulment.

But, because we are in the realm of personal relationships and not

patrimonial, the effects are not those produced by the annulment of legal transactions
in general.
In fact, the act of marriage is of such relevance in people's lives that
they celebrated that the law, once certain conditions are verified, will protect the
marriage, preserving the effects produced during its duration.
It is true that, once the annulment of the marriage has been declared, regardless
of the cause that has been invoked, whether it is more serious or less serious, the production of
effects will no longer depend on the cause that led to the declaration of nullity but on the issue
whether or not there was good faith on the part of one or both spouses. This regarding the
period prior to the sentence, because, from the date of its final judgment, the effect
it is the same, leaving the marriage to produce effects from then on. The annulment
always involves the end of the effects of the annulled act from the respective final decision
in judgment.
The law will take into account that the spouses acted in good faith, that is, the fact
at the moment of the celebration, being fully convinced that they were celebrating
an act of utmost importance for their lives and that this act was fully valid.
When the good faith of one or both spouses is verified, the annulment of
marriage will only produce effects without retroactive efficacy, that is, from the moment it is finalized.
judgment of the sentence that annulled it, safeguarding, however, the previously established effects

produced during the period that has elapsed from the date of the celebration to the date of the
sentence that annulled it.
The law considers in good faith the spouse who entered into marriage in
ignorance of the cause of nullity - art. 72, no. 1. It is necessary that this
ignorance may be excusable, for the negligence in clarifying the truth is not.
protected by law. The law also protects the spouse whose will has been coerced
by physical or moral coercion.
When analyzing what should be understood as good faith in the matter of putative marriage,

Pires de Lima states the following: "violence and error differ in no way even under this
point of view, for what matters to justify the effects of a putative marriage is the
material situation created by the supposed marriage, which in both cases is contrary to
will of the contracting parties (...)". "The error, to deserve protection, must be excusable.
Those who knowingly ignored cannot be protected for not having used it.
normal and usual diligence.
The error can be either a factual error or a legal error, which can be expressed in
ignorance of a legal provision that prohibited marriage.
Such ignorance cannot be invoked if the Civil Registry Officer has
strictly fulfilled the provisions of Article 29, No. 1 of the Family Code, which commands
that the engaged parties be previously informed of what the impediments are
matrimonial, shortly after the initiation of the preliminary process.
The spouse who was unaware of the cause of invalidity or who was a victim of is acting in good faith.

violence or of significant fear.

Meanwhile, through the expansion of the protection of spouses, no. 3 of article 72.
it establishes the presumption of good faith of the spouses, returning the burden of proof to whoever comes

to allege bad faith in the annulment action. Moreover, good faith must be verified only by Pires.
Lima, op. cit. p. 180. at the moment of the celebration of the act and does not need to be prolonged

until the period of marital cohabitation.

The legal figure that allows an annulled marriage to produce effects is
designated as putative marriage.
Putative marriage has been introduced for centuries in legal systems.
legal matters related to canon law, as it is understood to protect the spouses convinced of
that celebrated a valid act of great importance in their personal life. The
the consequences of the annulment would be so severe and unjust that it was decided to
derogate the rules of the effect of annulment and created the institute of putative marriage.
 The term putative comes from the Latin term putare which means 'to judge' and is used
to invoke the conviction of the spouses that they are celebrating a valid marriage
when, in good faith, they celebrated.
Ultimately, unilateral or bilateral good faith is the cornerstone of a putative marriage.
and the reasons on which the law is based for invoking it can be considered based on the
principle of equity, of protecting the innocent offspring, etc..
The legal nature of putative marriage is discussed. Some consider it
a fiction and there are those who consider it an autonomous institution that produces effects by

the material fact of the appearance of a marriage. It recognizes the doctrine that diversity
the effects of putative marriage create a complex situation that seeks to mitigate the
effects of the nullity of marriage.
We understand that it is the theory of appearance that best aligns with the figure
of the putative marriage. In fact, the personal and social behavior of the spouses,
acting as if they were married, despite the flaw in the act, leads to them not
they can fully apply the effects that would result from the annulment of the marriage. In
Fundamentally, it is recognized that there was an 'apparently' valid marriage. But it is necessary

taking into account that the institute of putative marriage is only applicable if it is verified, as

an essential prerequisite, the existence of an apparent marriage, which formally it

distinguish from any other union and provided that there has also been the intention of fact
to enter into marriage.
It is understood that the institute of putative marriage is only applicable provided that it

verify the following assumptions:

that there is a marriage;
—that the marriage be declared null;
that the subjective element of good faith exists on the part of both or one of them
nubentes. (J) Juan Jordano Barea, "Putative Marriage as Legal Appearance
Matrimonial, in Yearbook of Civil Law, volume XIV, phase II, p. 248.
 1. Effects concerning spouses
a) Effects concerning the spouse or spouses in good faith
If both spouses were acting in good faith, the marriage produces effects until the

final judgment of the sentence that declares its annulment, that is, ex-nunc, and the effects
those produced previously are safeguarded both in relation to the spouses themselves and in
relation to third parties—art. 71, no. 1.
The same happens when only one of the spouses was acting in good faith, as he can
to claim the production of the benefits of marriage against the other pseudo ex-spouse
and before third parties—art. 71, n. 2.
In this way, the institute of putative marriage means that the annulled marriage
will produce, up until its cancellation, that is, in relation to the past, the
the same effects that would have been produced by a valid marriage, ceasing its effects on the
leave from the annulment.

Thus, the pseudo-spouses revert to their previous marital status, which may be the status
single, if that were the marital status they had at the time of the wedding celebration,
or to the state of widower or divorced.
The right to use the name ceases and the bond of affinity also ceases.
The right to Angolan nationality acquired through marriage is maintained, in accordance with
art. 12, n. 3 of the Nationality Law (Law n. 1/2005). The right is also maintained.
for the provision of alimony.
As for the property effects that have arisen during the
duration of the marriage, such as donations between spouses or made by third parties,
they remain, without the expiration occurring. The same happens if, during the validity
in the annulled marriage, the spouse has been called to the succession of the other spouse, because

the succession effect remains. If the succession occurs after the judgment has been rendered
of the annulment, the succession rights disappear. The interests are liquidated.
assets according to the property regime that has been adopted.
If the spouse has been emancipated by marriage, the emancipation remains.
b) Effects regarding the spouse or spouses acting in bad faith
In relation to the spouse or spouses acting in bad faith, the annulled marriage does not produce

effects, as the legal figure of the putative marriage cannot be invoked.

Consequently, they do not acquire the right to any benefits that may have arisen for them.
from the wedding celebration. Affinity does not originate, the right to
nationality that has been acquired, the right to use the name, the right to alimony
and the right to emancipation.
In property relations, the economic regime disappears retroactively that
it has been in force and the liquidation of the assets is carried out as if it were a de facto company

it was about.
The spouse(s) acting in bad faith lose(s) the right to any donations that have been made.
due to marriage or during it, which should be considered void, the
even though it is happening

any succession rights they may have benefited from, must return everything
how much they have received.

2. Effects on children
In light of the legislation prior to the proclamation of the Republic in Portugal, it was understood

I know that the effects of the annulled marriage had repercussions on the situation of the children and that,

retroactively ceasing these, the children began to be considered as 'children'

"natural" and not legitimate, and may also, depending on the cases, be considered as children.

adulterous or incestuous.
It was the Family Law of December 25, 1910 that changed this situation.
always declaring the children born of annulled marriage as legitimate.
This position was later introduced into the Civil Code and was confirmed by
full in the Family Code, stating that the annulment of marriage does not harm
any form "the rights of children born and conceived during the duration of the
marriage" (art. 71, n. 3). Hence, concerning the children, the declaration of nullity
the marriage is legally irrelevant.
This is confirmed by the general rule contained in article 163 of the Family Code.
according to which the establishment of the filiation of the child conceived and born during the marriage

Marriage results for both parents from the fact of birth, even if the
the marriage may be annulled. debts communicable by force of law, a situation in which
the assets of both spouses can be called to responsibility for payment
of the debt.
Regarding the bad faith spouse, they can no longer claim the benefits of
marriage in relation to third parties, being responsible beforehand for
losses that may have resulted for third parties from the annulment of the marriage.
It is worth highlighting that the institution of marriage annulment was characterized by

great relevance and sparked rivers of ink in the doctrine that focused on it, in the
legal systems in which the indissolubility of canonical marriage was in effect.
Nowadays, the grounds for divorce have been broadened.
Due to divorce, the number of marriage annulment actions is increasingly decreasing. Furthermore

that experience shows that actions to annul due to lack or defect of will are
in principle of difficult proof, given the subjective nature underlying the cited facts.
Hence, in practice, they are replaced by divorce actions in which it is invoked
facts occurring after the marriage of an external and objective nature, whose proof is taken more
easy.
The effects of the annulment of marriage in the case of a putative marriage are, in fact,

as we will see, identical in many aspects to those of the dissolution of marriage by

divorce.
 CHAPTER 13.0
PERSONAL EFFECTS OF MARRIAGE

Regulating Principles of Marital Relations

A—Equality of rights and duties
The marriage as a legal act derives from the family legal situation of a character
durable by which the spouses acquire the legal status of state of
married.
The evolution of the institution of marriage regarding the issue of has been long.
personal relationships between husband and wife, but at this moment we are only interested in analyzing

the principles enshrined in the Family Code, which are those that represent the
new trends of progressive legislation that are beginning to prevail in many
countries of the world that were established in international conventions and in
Angolan Constitution.
Postponed was the Civil Code and the retrograde and discriminatory principles
which consecrated in relation to women, the Family Code came to proclaim equality
of the man and the woman in all legal family relations, especially in relations
matrimonial.
The Constitution of February 5, 2010 expressly enshrines this principle
in its article 35, paragraph 3: "Men and women are equal within the family and society"
and of the State, enjoying the same rights and having the same duties.
Today, the principle of equality of spouses in the celebration of marriage, during
its validity and upon its dissolution, constitutes the guiding principle upon which everything is based
the structure of the personal relationships of the spouses.

We have already had the opportunity to mention this fundamental matrix principle.

constitutional (enshrined in Article 3, no. 1 of the Family Code and expressed in Article.
21.° of Title III) according to which marriage is based on the mutual equality of
rights and duties of spouses.
By speaking of duties and not obligations, the law intended to focus on the moral aspect.

underlying the behaviors established by law.

 Marital relations are, therefore, based on reciprocal rights and duties of such
so that each right corresponds to the assumption of a duty. Just like the others
family relations are of a supportive and intercurrent nature. In their relationships
In marriage, the spouses must also obey the principle enshrined in number 2.
Article 2 of the Family Code, under which family members must
to contribute with each other for their harmonious development, so that each one
may fully realize your personality and your abilities in the interest of everyone
society.
The marital bond is by its nature stable and lasting: through the
marriage, husband and wife create a new family, to which they must give their best
same.

B—Full communion of life

What is specific about the marital relationship is the establishment of a complete
communion of life between a man and a woman.
Full communion of life, although the law does not say so explicitly, involves
relationships of a physical, emotional, and intellectual nature between husband and wife, which corresponds to

the Latin expression more uxorio.

The word spouse derives from the Latin word conjunx or conjugis, which means
"tying through a yoke" or "pairing up". It means: by virtue of marriage, husband.
and the woman comes to be "together with", that is, united with each other. In ancient law
it was considered that husband and wife are regarded in law as one person, wanting to say this-
I know that husband and wife were, in the eyes of the law, considered as one person.
It is true that marriage has relevance to freedom.
spouses, imposing restrictions that are voluntarily accepted by them, and that the family
matrimonial, the couple, constitutes a unit in many aspects, is also no less
It is true that the fundamental rights of each spouse are safeguarded.
From marriage arise direct personal effects for the spouses, first of all
place of the physical relationship, which encompasses common sexual coexistence. This
marital obligation is commonly referred to as marital debt (from the expression
It is considered a consummated marriage in which the
spouses maintain sexual relationships after the celebration of marriage.
The unjustified refusal of sexual relations by one of the spouses or the
impotence for its consummation constitutes facts that can be considered
as a violation of marital duties or grounds for nullity of marriage,
according to the cases.
However, the refusal to engage in sexual relations can be justified, with
based on health reasons (e.g.; one of the spouses being a carrier of communicable diseases),
or based on moral reasons (e.g., if one of the spouses has a
culpable behavior towards the other.
The full communion of life, which constitutes the legal purpose of marriage, has
as a substrate the material fact of the spouses living in cohabitation, that is, having
a common residence. The sharing of life will imply the sharing of bed, table, and
housing, although it is not mandatory that these three are expressly verified
elements, for what is essential is that the fact that spouses can and
want to communicate with each other.

Due to purely situational reasons (of a professional, health nature, etc.), the
spouses can, for a certain period, cease to live together, as long as they maintain
among all the other bonds that evidence the communion of life.
The choice of common residence is one of the most important steps in a person's life.
couple. In the previous legislation, the married woman was required to have the domicile of
husband. This was what was provided by article 86 of the Civil Code, revoked by item a) of article.

10.° of Law No. 1/88. The Civil Code of 1867 required married women to follow the
the husband's domicile wherever he may be found, only reserving such obligation
when the husband resided abroad or in the colonies. The husband enjoyed the right
to request the 'judicial delivery' of the woman when she left the marital home.
In the Civil Code of 1966, this situation was partially modified, specifying in which
conditions could the woman not have the same residence as her husband, while maintaining the right
of the woman demanding to be received in the common residence.

Article 44 of the Family Code states that spouses must live together.
they must agree to choose the family's residence.
 In making this choice, and according to the same article 44, they must consider the

professional life demands of both and the interests of the children.

Thus, spouses are granted equal rights to intervene in the decision, distancing the
previous situation, where only the husband made the decisions.

The choice of the common place of residence is of decisive importance in the lives of
spouses and it will be hardly acceptable that the spouses do not reach an agreement on such matters

issue, which is a material assumption of common life.

C—Common decision
Another fundamental principle by which the relationships between are governed
spouses, and which is a result of the principle of equality between husband and wife, is that of

common decision on matters of family life. According to the previously conceived

oil, the family was a hierarchically organized body subject to the authority of a leader, the husband.

Replacing this concept of hierarchy within family relationships, there arises,

as a logical corollary of the principle of equality between spouses, the principle of
diarchy, which assigns equal rights and duties to both, whether in their relations with each other or
in the relationships of spouses with their common children.

Also in the exercise of parental authority over minor children, the father and the
mothers hold equal rights and duties, without one overriding the will of the other
final—art. 127, n. 1 of the Family Code, already mentioned.
The principle of common decision is expressed in Article 48 of the Family Code:
The spouses jointly decide on the fundamental matters of the family (...).
In making their common decisions, the spouses should seek to obtain the
consensus among themselves, not prevailing the will or whim of one of them.
Relevant issues such as the conception of children, number and spacing of
Pregnancy and contraceptive use should be decided by both, without imposing one's will.
from one to the other.

They have the duty to act in accordance with the interest of their own family, having in
See the benefit of this rather than your own personal and selfish interest.
 When making common decisions about family life, each of the spouses
must respect the personality of the other and the interests of the couple's children, acting in a
basis of mutual concessions.
The full communion of life demands the sharing between spouses of a life in
common that must settle in a harmonious and mutually marital coexistence
fruitful.
Marital powers and duties
The state of being married derives a set of powers to which correspond the
correlative duties that are specific to marital relations. These rights and
duties consecrate principles of public order, of an unavailable nature and
irrevocable, not susceptible to be dismissed by the will of the parties.
The marital powers-duties of predominantly ethical content-
legal matters undoubtedly limit the personal freedom of each spouse, reflecting on the
your individual life, which will now be decided by two.
These restrictions are, however, compensated by the enrichment that comes from the
common life, based on the spirit of solidarity and mutual assistance.
In mentioning the reciprocal duties of spouses, Article 43 establishes that
both are bound by the duties of respect, fidelity, cohabitation, cooperation, and
assistance. The order in which these duties are stated also shows that the
the legislator wanted to give particular emphasis to those regarding the moral position of a spouse

before the other, understanding that this stance is very important in the relationship
common.
A—Power-duty of respect
Usually, it is not stated in the various legislations, although it has a
fundamental scope, as it is the substratum of marital relations and allows for their
stability and continuity. It involves the duty to provide to (and the right to demand from)
another partner respecting moral and physical personality, refraining from any
offensive conduct or violation of the physical or moral integrity of the other spouse. Each
one of the spouses must take into account that the other is a human being endowed with

personality and dignity of their own.

 The violation of the duty of respect towards the other spouse may consist of
various behaviors, such as physical assaults, moral offenses, humiliations, the
direct use of offensive expressions, defamation in front of third parties, false attribution to
other spouse of dishonest conduct or even the unjustified propagation before
third parties to the couple's intimate aspects of life.

B—Power-duty of fidelity
By virtue of marriage, spouses are bound to common sexual cohabitation.
simultaneously remaining inhibited from having sexual relations with a third person. The
the duty of fidelity involves, therefore, the obligation of exclusive sexual life between the

spouses.
In the strict concept of the duty of fidelity is the obligation of the spouse not to
maintaining sexual relations outside of marriage, which constitutes the concept of adultery.
The sexual act performed by the spouse with a third person must contain the
subjective element, that is, it has to be a voluntary act in the sense that it has to
be aware and free. If it is an act obtained by violence or fraud, adultery does not
consubstantiation.
In an objective sense, adultery encompasses the act with a third person of any kind.
activity aimed at sexual satisfaction. In the Preliminary Draft of the Penal Code (1) Jorge Duarte

Pinheiro, cited work, p. 449.

The Chapter on Sexual Crimes contains definitions of acts.
punishable and that involve sexual activity.
There are, however, those who believe that infidelity can translate into a mere relationship.

affectionate with a third person or in a conduct that may result in presumption of

adultery, making a distinction between material infidelity, which is adultery
consummated, and moral infidelity, which may consist of a simple romantic relationship
dating. This last behavior is seen by some as a violation of the duty of
respect, as mentioned above.
It is also discussed whether it should be understood as a breach of the duty of loyalty to

practice of homosexual relationships of a spouse with another person of the same

sex, point of view that we share given that there is here the practice of sexual act, even
that is considered as against nature.
 The marital relationship is, at its core, a relationship of trust. Neither of the
spouses can coercively obligate the other to the duty of fidelity, being however,
it is allowed to react towards the other if there is a breach of this duty, as this may
constitute a ground for divorce.
Adultery has been and continues to be considered in many legislations as a
criminal offense. The current Penal Code in Angola enshrines this criminal offense in its
art. 401., embodying a retrograde conception of marriage. This norm
highly discriminatory against women (as it has always been against them throughout the ages
who she addressed) was revoked by the Divorce Law of 1910, which criminalizes
likewise the adultery of the husband and that of the wife.

Nowadays, adultery is generally considered a civil offense. The Ante-

The draft of the Penal Code no longer considers adultery as a criminal offense.

In many legislations, the right of the injured spouse to a

compensation for moral damages inflicted.
The duty of fidelity that a married woman is bound to is one of the points
essentials on which the legal principle that the children she has during the marriage is based
in marriage, they are the husband's children.

C—Power-duty of cohabitation
As we have seen, the duty of cohabitation consists of the material coexistence of
husband and wife in communion of bed, table, and dwelling, according to the social model of
marital cohabitation.
Co-habitation presupposes, therefore, a common family residence, a roof under which
spouses must maintain their reciprocal relationship. The place where they cohabit
spouses, that is, the family residence, is, due to its importance for the family structure,
especially protected by law. Spouses have the duty to live together, says article 44.
of the Family Code.
The power-duty of cohabitation appears, in its external aspect, represented by
the fact that the spouses live in a residence, which leads to the presumption that within it the
spouses maintain the usual normal relationship of married life.
As we saw, spouses can temporarily suspend the obligation of life in
common for various reasons (health reasons, professional training, the
interest of the children etc.), without thinking that they will end their relationship with such.

conjugal.
Now the fact that one of the spouses decides to terminate cohabitation with the other or the

the fact that both, by mutual agreement, decide to live separately, is an act of all
the relevance and evidence of the ruin of marital relations to which the Family Code
it will serve for various purposes when there is no resumption of common life and if
I came to operate the dissolution of marriage by divorce.
It produces effects regarding the exercise of parental authority from the outset.
about the couple's minor children.
The legal concept of cohabitation between a man and a woman always lies in a
objective situation of common life and it reveals not only in marital family relationships
but also in those of simple common-law partnership.

The right-duty of cohabitation of spouses in the couple's common residence is

support of the right to lease in the case of dissolution of marriage, and the right
of each spouse to remain in the conjugal home regardless of the
will of the other spouse, during the duration of the marital bond.
spouses not earning a salary or income of their own, this provision can be
consubstantiated in the provision of services or the production of goods.
The participation of spouses in the burdens of family life should be in accordance with
with the income earned by them, allowing the household a level of
life in accordance with your economic availability.
The duty of material assistance during life together translates to
performances of an economic nature that, in principle, are made by mutual agreement between
the spouses. Either spouse is obliged to help support the other when
is involuntarily deprived of means of livelihood, due to health reasons or
for any other reason that prevents you from acquiring them.
Article 46, number 1, of the Family Code states: "Spouses must contribute
jointly for the responsibilities of family life, in harmony with the possibilities of
each one, should
 to understand as the burdens of family life those that encompass the costs with
support, clothing, housing, and everything necessary for the normal life of the family, such as
vehicle maintenance expenses, fuel, water and electricity, maid
household, purchase of furniture, appliances, etc.
But they can also encompass exceptional charges, such as the
resulting from medical treatment needs, from a death, etc.
Article 46, no. 2 allows either spouse to appeal to the court.
to demand that the portion of the income or benefits be delivered directly to him
If the due contribution is not provided, either spouse may demand
that the portion of the other’s income determined by the court be directly delivered to you.
This may occur when the other, having resources, fails to provide them.
voluntarily.
This provision allows for the direct intervention of the court in family life in case of

violation of the duty of material support, when one of the spouses fails to contribute
for the burdens of family life.
The fact that one of the spouses violates the duty of assistance and leaves an echo for the...

Family responsibilities can put your family in a desperate economic situation.

This is a voluntary jurisdiction action provided for in Article 1416 of the Code.
Civil Process, which came to ask the court for the direct delivery of the income.
household expenses, it should be understood now that this is a l^p|
to both spouses. anomalous conduct by
the recourse to such special action is generally enjoyed by responsibilities

Part of one of the spouses, who, having lost the noce Q |Qgo of bad luck, etc..
marital, falls under the control of an addiction with
The power of assistance also has a moral aspect, imposing on the
spouses have a duty to provide spiritual support, participating in the difficult moments of life
other, as in the case of illness, family disappointments, setbacks in professional life, etc..
It also encompasses the duty to help others in the progress of their professional lives.
and social.
 The duty of assistance, as we will see, can extend even when it ceases
cohabitation of spouses due to de facto separation or dissolution of the bond
matrimonial due to death or divorce, and is realized through the provision of alimony.
Personal rights of spouses
This set of powers and duties undoubtedly reflects in the personal life of
spouses and imposes, as seen, restrictions on the individual freedom of both. But it is necessary
always bear in mind that they do not affect their own personality and their
personal rights, which remain intact, such as the right to one's moral integrity and
physics, and in general, the rights inherent to every human being.

The right to physical and moral integrity prevents either spouse from exercising
physical violence or threats against the other. The husband, solely by being one, cannot
to physically and voluntarily assault the woman, because this illegal behavior,
punishable (crime of voluntary bodily harm) is not "justified" by the
fact of the existence of the marital bond.
Moreover, today the crime of violence is typified in modern penal systems.
domestic activity carried out between people living in the same household, the scope of which is defined

in Law No. 25/11 of July 14, in article 2.

The previous thesis supported by the Penal Code, that the crime of violation
it cannot be practiced by the husband on the wife, because it does not involve copulation
illicit, also no longer has acceptance in modern criminal law.
The draft of the Penal Code provides for the crime of sexual assault with penetration.
what is punished even if practiced by the spouse of the agent
The right to dispose of one's own body belongs exclusively to oneself.
spouse, understanding that a married woman can freely decide about the
voluntary interruption of pregnancy and the use of family planning methods.
Likewise, the husband can decide on the contraceptive methods he deems appropriate.
use.
Such issues, due to their sensitivity and importance in the couple's life, should, both
as much as possible, to be decided by consensus of the spouses, but in no case may
one of the spouses forcing the other to a certain behavior against their will.
 The moral integrity of the spouse must be respected by the other, preserving
the right of each one to honor, to private life, to image, to their own correspondence, to
own telephone contacts, in short, the right to a relationship in your family environment
the social.
Each spouse has the right to fundamental political freedoms,
civic, union, cultural or religious, with the spouses being able to have their own
convictions, which does not prevent that, in case of a lack of tolerance, this does not
may result in litigation between the couple.
The personal rights of the husband or wife must be exercised by themselves.
spouse harmed by the action of a third party, in a criminal or civil action.
The criminal legislation that allowed the husband must be considered revoked.
to act as an assistant in a criminal action in which a woman is the victim (art. 4, item 3 of
Decree-Law No. 35 007 not only for being a discriminatory norm, but because the
the right to criminal action is of a personal nature and not transferable.
The same happens with the permission for the husband to have access to
correspondence of the woman (art. 461, §1 of the Penal Code, already repealed in the legislation
Portuguese by the reform of 1977.
Between us, this provision should be considered tacitly revoked by the
constitutional legislation and the Family Code, which constitute the foundation of the legislation
Angolan after national independence.
It is known that the relationship between husband and wife is established on a basis of
mutual trust and allows access to each other's intimacy, it is the law itself that protects
the secrets of the couple: one spouse cannot testify against the other
Forcing someone to suffer sexual penetration by a third party is punished with imprisonment.
from 2 to 10 years in prison.
ARTICLE 4.
(Assistants)
They can intervene in the process as assistants:
(...)
4.°—The husband in cases of infraction against the woman, unless opposed
of this. (art. 216, n. 3 of the Code of Criminal Procedure), nor can be questioned about acts
punishable or dishonorable acts that the other spouse has committed (art. 218 of the same)

Code).(7)
The right to exercise a profession or activities is enshrined in Article 47.
Family Code is an emanation of the preservation of fundamental rights that
each spouse retains beyond the marriage.
Each spouse retains the right to image, intimacy, honor, and their
family and social relations. However, it is necessary to take into account that full communion
the life of spouses implies that, as a rule, both act together in social life and in
the family seal, this family that is broadened for each of them by the new bond of the
affinity derived from the bond of marriage.
The compatibility and balance between rights and duties of a natural nature
professionals and the activities of the spouses and their duties within the marriage have
that they are found in such a way that there is no harm to some in relation to others.

Common representation
The conjugal family constitutes a social group that maintains legal relations of
diverse nature with third parties. In these relationships, the marital family is represented
indistinctly by either spouse, concerning a power of representation
tacit, as it is based on the principle that when one of the spouses acts before third parties,
is acting on the will of both. Thus, if one of them enters into a transaction
legal, or makes a resolution related to the lives of the spouses and children, it is presumed-
I know that it represents the common will.

This is what the final part of article 48 of the Family Code states: "(...) being able to

each of them represents her before third parties." It is merely a presumption that can
to be distant in relation to

third parties, even in good faith, by simple declaration of the other spouse that does not
should have intervened in the act in question, but should do so in a timely manner to not
harm third parties in good faith.
 (7) ARTICLE 216.
(Inability to be a witness)
They cannot be witnesses:
(...)
3.°—(...) the husband or wife of the offended party or of the accuser or the

ARTICLE 218.
(Facts that cannot be asked of witnesses and declarants)
Witnesses will not be questioned about punishable or disgraceful facts about them.
practiced or by (...) husband or wife.
In the previous Civil Code (art. 1674), the husband, within his marital authority,
had, by direct force of law, the power to represent the family.
Today, because both the husband and the wife have full civil capacity, the Code
of family allows either spouse, indistinctly, to represent the family
before third parties, merely presumed to act according to the consensus of both.
The power of representation of the spouses is enshrined in various norms of
new Commercial Companies Act, Law No. 1/04 of February 13, which allows the
representation of a spouse who is a partner in a company by the other, namely in
general assemblies (articles 191, no. 4, 277, no. 3 and 400, no. 1), as well as in the case
of shareholding (art. 245, n. 1).(8)
This does not prevent, as we will see, that either spouse can, through
mandate, to appoint a third party as administrator of your assets (art. 54, n. 2,
item b) of the Family Code.

Right to a name, emancipation, nationality A—Right to a name

When marriage was attributed the privilege of being the only form of constitution
legitimate of the family, emphasis was placed on the unit of name by which the new one was to be designated

family constituted by marriage. There was a concern to define the

 (8) ARTICLE 191.
(Deliberations of the partners) (...)

4. At the General Assemblies, a member may only be represented by their spouse.

(...).
ARTICLE 277.
Representation of partners in General Assemblies
Unless otherwise provided by the partnership agreement, the partner can only confer
representative powers to your spouse (...).
ARTICLE 400.
(Shareholder representation)
1. The partnership agreement cannot prohibit any shareholder from making themselves
to represent at the General Assembly, provided that the representative is their spouse (...).
ARTICLE 245.
Common representation
1. When not designated by law or testamentary provision or representative
common is appointed and can be dismissed by the co-holders and can be appointed
any common representative co-holder or their spouse.
family name by which she came to be known in the social environment in which
vivia. The unit of name refers in this case to the surname or family name or
patronymic and not to the proper name. In the generality of European countries, it predominated.

the custom of women adopting their husband's family surname, especially in the bourgeoisie.
In some countries, women even lost the right to use their maiden name.
to only use the husband's family nickname. In other cases, she retained her own.
nickname and to this was added the husband's nickname.

According to the Portuguese Civil Code, the use of the husband's surname by the
a married woman was a legal faculty that the woman could or could not use, depending on
wanted.
This traditional practice has been transformed by the new family law.
Soviet, which allowed either spouse to adopt the other's surname.
Within this new line of guidance, which is common to the generality of modern
legislation, either spouse is free to adopt the other's surname. This is also
the rule adopted by Article 1677 of the current Portuguese Civil Code, which, after the reform
since 1977, allows spouses to keep their surnames or add surnames
from the other, up to a maximum of two.

This matter is regulated in article 36, number 1 of the Family Code, which states:
In the act of marriage, one of the spouses can declare that they adopt the surname of the other or

both can choose to adopt a common nickname, based on the nickname of both.
This declaration must be made immediately after the celebration of the marriage act.
Thus the principle is established that spouses can choose the establishment of a
a common family nickname formed by the surnames of both and used together by
husband and wife. The declaration made by the couple may consist of a unilateral act of
will, if it consists of adopting the other’s surname, which must stem from only one
of the spouses.
Or it can consist of a bilateral act, resulting from the agreement of wills, if it consists
in the formation of a common family nickname.
It is a legal faculty that each spouse may or may not use, maintaining
your previous name or adding the other person's name or forming a common name.
In any case, the declaration is voluntary and irrevocable in nature, only
can be altered under circumstances provided for by law.
The family name is given to common children.
As we will see, the right to use the name endures during the validity of the
marriage and after its dissolution by death, ceasing in the case of dissolution by
divorce, as provided in paragraphs 2 and 3 of the aforementioned article 36.

B—Emancipation
The marriage of a minor under 18 years old celebrated in compliance with the provisions of art.

24.°, n.°s 2 and 3 of the Family Code leads to the emancipation of the minor (art. 132.°, item
a) of the Civil Code), which acquires full governance of their person and assets.
C—Nationality
The first law of Angolan nationality, approved in November 1975, does not
granted Angolan nationality to the foreign citizen who married an Angolan citizen
Angolan, by the simple fact of marriage. Also, the Angolan woman did not lose the
nationality due to marriage to a foreign citizen, contrary to what
it happened with other discriminatory legislation. This principle was
protected by Law No. 8/84 and remained in Law No. 13/91, of May 11,
as in the current Law No. 1/05 of July 1.
Article 12, paragraph 1 of Law No. 13/91 was amended by Article 12, paragraph 1 of Law No.
1/05 that passed to dispose the following: "The foreigner married to a national, for more than
five years, a spouse may acquire the property in the continuity of marriage and with the other spouse's consent

Angolan nationality, as long as it is requested.

If the foreign citizen loses their citizenship due to marriage, they acquire
ipso facto the Angolan nationality. This article adds Article 12, n.° 3 that: 'The declaration
the nullity or annulment of the marriage does not affect the nationality acquired by
spouse who entered into it in good faith.

Article 15, paragraph 2 of this Law "Determines the loss of nationality, obtained by
naturalization: c) when obtained by forgery or other fraudulent means, or
inducing in euros the competent authorities.
In the field of private international law, it must be considered as
unconstitutional or provided for in article 52 of the Civil Code, which orders to apply to the relationships

marital laws of the national husband, given their discriminatory content regarding
to the woman. This is the position adopted in our jurisprudence.
In principle, the law applicable to marital relations in the case of nationalities
different from the spouses, will be that of the last common residence.

D—Other effects
Law No. 17/12, of July 19 (in D.R. No. 92) which approved the Statute of
Deputy, allows in your article 7, number 2, letter a) the absence from the Country in case of illness.

of oneself or of the spouse, ascendant or descendant. Article 18 of this law grants to the
spouse, ascendants, and minor children of the deputy granted rights and privileges.
(9) Cf. Maria do Carmo Medina, Annotated Family Code, p. 9. [80] Guardianship
of marital rights
The powers-duties that are part of married life are, therefore, of an ethical nature-
-legal and correspond to services of an eminently personal nature, so that the
your greeting is normally of a spontaneous nature and results from the will of each
one of the spouses to strengthen and safeguard the marital bond.
The violation of marital duties is not explicitly protected by the rules.
law, although in certain extreme cases there may be criminal responsibility, such as in
in case adultery is punishable as a crime, as well as when there is a violation of duty
of material assistance and the corresponding lack of food provision.
Law No. 2053 (Family Abandonment Law), which we have already discussed, criminalizes certain

conducts related to the lack of alimony payment to the spouse and abandonment of the
marital home.
The serious or repeated violation of marital duties, when not caused by
due to the conduct of the other spouse, it grants the offended spouse the right to request the

divorce, obtaining in this way the dissolution of the marital bond.

There are often problems of abnormal psychic behaviors due to
part of one of the spouses that is less detectable for the couple's external social life
more than that take great relevance in the couple's intimate life and should be the object of

appropriate psychic therapy.

Cultural differences and divisions also make married life difficult,
creating almost insurmountable obstacles. The conflicts of mentality in our
society in transition, are causes of a large number of conflicts, as they stem from
different conceptions about the relationship between man and woman in the context of marriage.

Often there is also the interference of third parties, namely from the
relatives of one or the other spouse, in the couple's life.
The conflicts that arise in married life may seek a solution in
pre-judicial phase or when there is already an appeal to the court due to the relevance given to the phase of

reconciliation of the spouses.

In various legal systems, there is an increasing search for the use of measures
of reconciliation, avoiding the rupture of marital ties or minimizing wear under the
psychological and emotional point of view between spouses, which, for the most part of
Sometimes, it will reflect in your work activity and in the social environment to which you belong.
 The fight against domestic violence, through legal means involving entities
judicial, police, medical, therapists, and others, it is now considered essential to a
healthier and more balanced coexistence between husband and wife.

Specific legislation on domestic violence in the field of Criminal Law and

Family Law has been adopted in many countries of various
Continents, including Angola.
The issue of domestic violence, due to its importance and repercussions in society
social, it has ceased to be considered a matter of "private forum" to be entirely attributed to
responsibility of the State, which must necessarily intervene, not leaving the
victims of violence left to their fate and helpless.
Measures are taken against spouses who have reprehensible behavior.
from the family or even criminal perspective, such as the prohibition of certain behaviors:
to bother others with words or gestures, prohibition of entering specific areas of the
family residence or even prohibition of entry into the entire residence, etc..
Personal protection orders can be issued against family members,
as a rule, the woman and the children, in case of a threat of the use of violence or when it has already

has been used. This is what happens in the current English legislation, which, according to
the Domestic Violence Law and Matrimonial Procedure provides that the court may
to issue injunctions that prohibit one of the spouses from certain behaviors
censurable. Failure to comply with a court order is punishable by imprisonment as
crime of disobedience.
In the sphere of the intimate and personal relationships of the spouses, one recognizes the

difficulty of interference from third parties, specifically from the court, for the
settlement of conflicts. There is an increasing effort to help resolve these disputes.
through mediation or conciliation, which, as we have seen, can exist in a pre-litigation stage or
it has already been assigned to the judicial bodies.

Mediation organisms are neutral by nature and seek to find the

causes of misunderstandings between spouses in order to achieve their reconciliation.
When this is not possible and there is intractability on both sides, one then seeks
obtain the amicable negotiation of separation or divorce. In the first phase, they have had
greatly highlights the specialized therapists, the marriage counseling offices
delivered to psychologists or legal professionals, as well as social organizations.
Any of these bodies must be able to analyze disputes impartially.
in the couple's life, investigating the various causes that give rise to them and that, as
we saw, they can be of multiple natures and may require medical treatment or
recovery, as in the case of the ingrained addiction of alcoholism.
They can also have a psychological or even cultural nature.
In the judicial phase of conflicts, conciliation is also given importance, which can
to be carried out by the court.
Italian legislation provides for the intervention of the judge in a fairly broad scope

restricted, more of an arbitral nature than jurisdictional.

Both in the mutual consent divorce process and in the divorce process
litigious, our family law only provides for the reconciliation of spouses at the stage
judicial, a phase during which it proves to be unproductive.
Similarly, procedural legislation has not been reviewed after the
publication of the Family Code, which is shown to be full of gaps in matters of
precautionary measures and specific measures that effectively protect the
rights of spouses, such as the right to physical integrity, the right to stay
in the family home, etc..
 CHAPTER 14.0
PATRIMONIAL EFFECTS OF MARRIAGE

Economic regime systems of marriage

Marriage, besides the personal effects it has on the lives of the spouses and that
they have already been specified, still produce effects of great relevance in your life
patrimonial. The legal regulation of the property situation of spouses constitutes
the economic regime of marriage, which defines and regulates the powers of the spouses regarding

the acquisition, disposition, and management of assets during the duration of the marriage.
Also define the liability regime for debts in relation to third parties.
as in relation to the spouses with each other.

As we saw, marriage implies a complete "communion of life" between the

spouses (consortium omnis vitae). From there, a community of will will inevitably derive.
property interests, which, due to their specific and particular nature, are generally
subject to a special legal property regime.
Due to this special nature, the couple's property interests
they appear in all legal systems regulated differently from
general principles governing the relations of property rights covered by law
of obligations and real rights.
The economic regime of marriage or matrimonial regime regulates not only the
property relations of spouses with each other but also the relations of the spouses with
third parties.
The very constitution of the home leads spouses to require a foundation
economic to meet the common expenses, such as the subsistence of oneself
spouses and their children and other elements that make up the respective household
familiar.
The duty to contribute to household expenses is one of the aspects that it encompasses.
the duty of material assistance between spouses. Today enshrined the principle of
equality between spouses, this obligation of economic contribution applies to both the husband
as with the woman, regardless of the couple's property regime, and is correlated with the
economic condition of each spouse. This contribution can be given with the product
from work income, whether from personal earnings or consisting of provision of
services in favor of the family unit. All of this is correlated with the level itself
of the couple's economic and professional development.
In the family environment where the woman has no resources and does not engage in activity.

professional outside the home, all the work referred to as 'domestic' that she carries out with a view

the subsistence of the household is underestimated, not being assigned a value

economic. Because free, it is not valued, understood for ancestral reasons,
as a duty that falls upon the woman and that should be combined with work outside
give a place, if applicable.

In the past, it was the husband's duty to support the wife.

And when a woman did not engage in productive activity, the dowry was instituted,
that consisted of a certain economic value that the woman carried with her to the
marriage.
In the current marital regime, in addition to the contribution of the spouses to the expenses

in the event of a house, with values or services, the legal situation of the assets whose
the ownership in the persons of the spouses is prior to or subsequent to the marriage, is defined as the

power of administration of these assets by the spouse, the power to incur debts
during the wedding, the responsibility for its payment, etc..
The economic regimes of marriage have evolved over time and from
in accordance with the evolution of the family's own structure. In feudal-type societies and
capitalist, within the class that holds economic power was given much greater
relevance to the property effects of marriage than to the personal effects, as the
Marriage was one of the ways to accumulate wealth.
In Roman law, the marriage was already distinguished in terms of economic regime.
with the hand, when the regime of absorption of the woman's property by the man was in force

husband, in the marriage sine manu, in which the woman's property remained with her family
from where it came.
In the English legal system and those that are based on it, the rule of
separation of assets. Each spouse retains individual ownership of all assets,
whether before or after the celebration of the wedding.
 Also in traditional African law, the property regime predominates.
separation of assets and this results from the fact that the woman does not integrate into her husband's family

and remain connected to her family of origin. In fact, the existence of marriage
Polygamous does not align with the regime of community property.
In other legal systems, the regime of community of property predominates, which is
characterized by the existence of a mass of goods that is the common property of both.
spouses and that is subject to a special allocation, as we will see.
The regime of community property can have greater or lesser extent, be total or
partial, presenting various forms:
the regime of general or universal community of goods, which encompasses almost

total assets of the spouses;

—the regime of joint ownership of movable and acquired assets, which encompasses all the

furniture before or after marriage and properties acquired for valuable consideration
after the wedding;
the regime of community of acquired property, which covers the assets acquired title
onerous after marriage, whether they are rights, movable or immovable property.
There are still other systems where the separation regime functions and of
communion agreements, such as the regime of future property communion or
of participation in the acquired. According to this regime, which is in effect in German law, the

spouses retain the right to enjoyment and disposal of all their assets, but,
upon the dissolution of marriage, each spouse is entitled to a share of the assets
acquired during the marriage. Participation in the acquired translates into a
valuation of the initial assets of the spouses at the time they married
marriage and the final estate at the time of its dissolution/
Sometimes the law imposes a unique regime: only spouses are allowed to adopt.
legal regime of property obligatorily established by law. At other times, the law imposes the

conventional property regime, according to which spouses can establish in advance

the rules that will govern the economic regime of your marriage in the future. There are still the

typical systems, which offer various pre-established systems in the law.

In some cases, the chosen option is immutable, it must last throughout the entire
marriage; in other cases the regime can change during the duration of the marriage.
 The property regime adopted in marriage is enforceable against third parties and therefore must

be subject to registration.

[82]The economic regime of marriage in the Civil Code

In the previous Civil Code, the system of autonomy of the will of the parties was in force.

then, as a rule, spouses were given the option to choose the property regime
Hope Pereira Mealha—Marital Agreements for Asset Sharing
Common, p. 29: "The regime of participation in acquired assets is one of the solutions

found in other arrangements that seek to combine the main advantages of

separatist regime with the great advantage of communion." Ed. Almedina, 2009. that
they approved them. This system, stated as a principle in Article 1698 of the Civil Code,
However, there are important legal restrictions.
The regime of freedom of prenuptial agreement was subject to limitations.
stated in article 1699 and following, which safeguarded in its paragraph c) the principles
considered public order, which enshrined the privileged situation of the husband
as the head of the family and as such, with the right to manage the couple's assets.
Other restrictions on the freedom of prenuptial agreement were provided for in this
article 1699.° refers to the regulation of the hereditary succession of spouses or
third parties, to the alteration of parental or marital rights and duties and to the stipulation of

communicability of certain goods.

In certain specific cases, it was the law that imperatively imposed the regime of
separation of assets. This was mentioned in article 1720, which imposed
mandatory separation of assets regime when:
a) the marriage had been celebrated without the prior process of
publications, as in the case of urgent marriage;
b) when the bride and groom had already reached a certain age, a norm in which
once again the woman was discriminated against;

c) when there are legitimate children from the previous marriage by either party
of both spouses.
With these rules, the aim was to prevent marriage from being celebrated under pressure.
the obtaining of economic advantages. However, paragraph 2 of this article 1720 allowed
that the engaged couple make donations to each other and that the future husband establish a dowry

for the benefit of women.

The rule in the current system of the Civil Code was that the property regime was
conventional and immutable, as neither the supplementary regime nor the prenuptial agreements
they could be changed during the marriage.
The Civil Code admitted a single case of alteration of the economic regime of
marriage, within the scope of the institute of separation of persons and assets (art. 1776, no. 2)

of this Code).
When the reconciliation of the spouses who had separated occurred
judicially of people and assets, the regime of would come into effect after reconciliation,
separation of property, with the dowry being managed by the woman.
The principle of the immutability of the property regime was established in article 1714.

of the Civil Code, according to which prenuptial agreements could not be altered.
To ensure that this principle would not be disrespected, the law prohibited sales between the
spouses and the partnerships between husband and wife (prenuptial. 1714, n. 2), except in the
capital companies (n.° 3 of this article 1714.)
A—The prenuptial agreements
The prenuptial agreements, also referred to as marriage conventions or
marriage contracts ("contrat de mariage" in French, "capitulaciones" in Spanish)
"matrimonial" in Spanish law constitutes the agreement made between the bride and groom.
in which the applicable regime for reciprocal property relations is established within the
marriage and the relationships of the spouses with third parties.

It is a true contract that precedes marriage and has an ancillary nature.

in relation to this. Its effectiveness, however, depends on the fact that it will be celebrated
the marriage is about the fact that the marriage itself is valid.
In prenuptial agreements, the spouses can freely establish, with the
restrictions provided by law, the property regime, or adopting one of the various regimes
provided for in the Code, or applying part of these regimes, combining the various rules
provided for them or establishing others.
As a contract, the prenuptial agreement has as its fundamental requirement the
capacity of the parties and the consent of the parties to be married. And, even if they are
minors, consent is given by themselves and not by their respective representative
legal, this must provide authorization for the celebration of the contract. The capacity
to celebrate the prenuptial convention is the same as that required for the celebration of
marriage.
Prenuptial agreements arise in legal systems where the aspects
the assets of marriage take on great relevance, as high stakes are at play
economic values held by the bride and groom or their families.
They are provided for in family law in various legal systems.
Europeans and specifically in the Portuguese Civil Code. The Family Code, as
further ahead we will see, it eliminated all the provisions regarding the conventions

wedding
It is interesting, however, to see how the now-repealed Civil Code provided for the

matter (essentially, what is provided for by other legislation).

Articles 1708 and 1709 of the Civil Code mentioned the substantive requirements.
necessary for the celebration of prenuptial agreements.
Unlike what happened during the wedding celebration, the conventions
prenuptial agreements could be subject to condition or term, in accordance with the provisions in
article 1713.
Article 1719 of the Civil Code expressly allowed spouses
to agree that, in the case of common descendants, the division of property,
upon the dissolution of the marriage, if it were to take place according to the regime of general community property

of assets, whatever the property regime that had been adopted.

As for the requirement of form, and according to article 1710, conventions
prenuptial agreements were only valid when executed by public deed.
The prenuptial agreements were mandatorily subject to registration for
may produce effects in relation to third parties—art. 1711, no. 1 of the Civil Code and
art. 233.
Civil Registry Code. However, they produced full effects between the parties.
and the heirs, regardless of registration (art. 1711, no. 2 of the Civil Code).
The prenuptial agreements were subject to the same general causes of
nullity and annulment prescribed in articles 285 and following of the Civil Code for
legal acts in general, which may specifically be annulled due to error, fraud or
coercion.
Article 1709 of the Civil Code contained an exception to the general causes of
annulability, as it allowed for the consideration of the annulability arising from a lack of
authorization by the representative of the incapable, when the marriage was to take place
celebrated after the incapacity ends.
The prenuptial agreement was also subject to expiry in both cases.
provided for in article 1716. The effectiveness was contingent on the fact that the marriage between
the nuptials were to be celebrated within a year. The expiration occurred
also if the marriage celebrated were to be considered null, since, being the
prenuptial agreement an accessory contract of the act of marriage, should this be
canceled it lost its legal purpose.
It was emphasized, however, the production of effects of the convention within the

applicable rules to putative marriage, that is, those that benefited the spouse who
had celebrated the marriage in good faith.
B—Donations for marriage and among married couples
The Civil Code provided that donations for marriage should be made to one or to
both parties to the marriage, and that these donations could be made by one of the parties or by
third parties—art. 1753. Donations for marriage should be included in the agreement.
prenuptial, according to article 1756, paragraph 1.
Donations for marriage were subject to causes of nullity.
mentioned in art. 1760. They expired for the same reasons that led to
expiration of the prenuptial agreement or when divorce or separation occurred
judicial liability of persons and assets due to the fault of the donor.

Donations between married couples, that is, those made after marriage, were freely
allowed by article 1761 of the Civil Code, only not being permitted when it was in force.
imperatively the regime of separation of assets.
Donations could only be made with the donor's own property (art. 1764).
n.° 1) and the donated assets were not communicable regardless of the property regime (n.°
2 of the same article 1764.
 Donations between married couples were freely revocable and were therefore not
subject to the general regime of revocation of donations, so the revocation did not require
it must be grounded—art. 1765.
They were still subject to the general regime of donations prescribed in the articles.
940.° and following of the Civil Code and could be reduced due to inofficiousness. The
the revocation of the donation had retroactive effects, which gave it a very precarious nature
to this type of donations.
The causes for the expiration of these were mentioned in article 1766 and were: the
death of the donee, without confirmation from the donor; the annulment
of marriage; the existence of divorce or judicial separation of persons and assets due to fault
of the grantee.
The general regime of wills was applicable to donations mortis causa.
C—Property regimes in the Civil Code
There were four legal types of property regimes adopted by the Civil Code:
a) or the community of acquired goods;
b) or of the general partnership of assets;

c) or the general separation of assets;

d) the dowry regime.

They were characterized by the extent, in each case, of the categories of goods.
common and personal property.
General communion
The general partnership regime of assets (also called absolute partnership)
the universal) was regulated in Article 1732 and following. This property regime has already been

historically very important, as it was the rule-regime provided for in the Civil Code of
1867, known as Seabra Code.
It was still the rule-regime adopted in Brazilian and Dutch legislation. After the
approval of the divorce law, in Brazil, has been adopted as a supplementary regime the
partial communion regime.
The current Brazilian Civil Code, approved by Law No. 10,406/02, maintains the
partial communion regime as the general supplementary regime—art. 1640.
 According to the regime of general community of property, there is a single estate in

marriage, which is the common property, consisting of all present assets and
futures, except those excluded by law—art. 1732 of the Civil Code. Only those are excluded
the goods indicated in Article 1733 and in paragraph 2 of this article, which still
it prescribes that the non-communicability of assets does not cover the respective fruits nor the

value of useful improvements.

There is, therefore, a total communion of goods not only in terms of ownership but also
regarding its possession and enjoyment.

This regime, which was the traditional Portuguese regime and was in force even before the
first Civil Code—which adopted it as it is according to "the uses and customs of the Kingdom"

is intrinsically linked to the concept of the indissolubility of marriage.

It was applied as a general supplementary regime until the entry into force of the Civil Code.

current. Therefore, marriages celebrated in Angola until January 1, 1968 must

considered to be celebrated under this regime of goods, if another has not been adopted
by prenuptial agreement or legal imposition.
On the contrary, today it will only prevail if such is stipulated in a convention.
prenuptial.
3. Separation of property regime
This regime was characterized by the existence of absolute separation between assets.
of the spouses. There were no common assets and, even if some asset belonged to both
the spouses, the regime of co-ownership was in force between them and not that of community.

This regime, according to article 1735, could be in effect between spouses when it was
imposed by law or when adopted in a prenuptial agreement.
This regime ensured to the spouses not only the separation of assets, or the
existence solely of each spouse's own assets, but still the powers of free
administration and disposition of goods and the fruits or income received.
Article 1736 provided for the presumption of ownership of movable goods and the article.

1737.° dealt with the rules of managing the assets of the other spouse who did not
was the holder of the respective property right.
 Dowry regime
This property regime was characterized by the existence of a dowry assigned to
woman, who, according to the provisions of art. 1740, could only be constituted by goods
properties or by nominative titles. The dowry was a set of personal goods that the
woman was taken to the wedding and sought to stay covered from the bad
administration by the husband. The remaining assets that did not constitute a dowry.
they remained governed by the rules of the regime of community of acquired properties (art. 1738, n.°

1), being a mixed regime of separation of assets in the part related to dowry assets, with
a regime of partial communion regarding the others.
The dowry assets were subject to special regulations regarding the powers of disposal.

(art. 1747) and of liability for debts (art. 1750).

This property regime highlighted the situation of discrimination against women in
marital life had already fallen into disuse, having been abolished in Portugal by
reforms brought by Decree-Law No. 496/77, which abolished discrimination of
rights and duties between husband and wife.

The property regimes in the Family Code

The Family Code departed from the system of diversity of regimes
patrimonial assets included in the Civil Code and preferred to guide itself by the typicity system:
the regimes accepted in the Code are regulated therein. However, the Code does not establish
no case of imperative imposition of a specific property regime, which means
that those getting married are always free to choose between the two types of property regime
established by law, there being no mandatory property regimes in certain cases
specific.
Article 49 allows in its paragraph 1 for the parties to choose between:
the regime of community of acquired property and

the regime of separation of assets.

This option is made in the initial declaration for marriage—art. 49.°- n.° 2. Moreover,
this declaration only becomes necessary when the parties intend to choose the regime
of the separation of assets—art. 29.H, no. 3.
 The declaration about the property regime must be confirmed by the spouses in the
marriage certificate—art. 49, no. 2.
In the absence of a declaration from the betrothed, the marriage is considered contracted.

according to the regime of community of acquired property—art. 49, no. 3.

It is seen, therefore, that the general supplementary regime is, just like in the Civil Code, the regime

of acquired community. This is the standard regime.

The adoption of another property regime, that of separation of property, starts to be done by

declaration before the Civil Registry employee and does not need to be included in
prenuptial agreement, which is a legal figure with a long tradition in societies in
that predominates the regime of private property of goods.
At the time of drafting the Family Code Project, it was not evident.
necessary, in a society that aimed to transition to socialism, a
great diversity of property regimes. Simplicity in form was preferred
statement before the Civil Registry official that constitutes the marriage process
the need for the execution of a separate public deed was waived concerning
to this same marriage process. It is the law that stipulates the effects of the declaration of
contracting, regulating the legal systems provided for in it.
The Family Code also says nothing specifically regarding donations to
marriage and donations between spouses, with the rules that pertained to them
were revoked. In the silence of the law, it should be understood that this type of donations will pass

to be governed by the applicable rules for donations in general, provided for in art. 940.
Civil Code.
One might question the reason why the Family Code allows for the existence
simultaneous application of two property regimes in marriage and not just the sole regime of

acquired community.
In the legal systems of the former socialist countries, the rule of the regime of
acquisition communion, although it was accepted, with certain limitations, the establishment of another

property regime, through contractual means. Similarly, the first Family Laws of
Cape Verde and São Tomé and the Family Law Project of Mozambique admitted as
single regime or community of acquired assets.
 It can be seen in the report that preceded the Family Code Project the
reasons that led the legislator to consent to the duality of the property regime.
In certain cases, as it is said there, the newlyweds may find it more appropriate
to celebrate the marriage with separation of assets, considering factors such as the little

stability of marriage, the existence of children from marital unions or simple

previous cohabitations of one or both parties, economic inequality
both spouses, etc.. The weight of traditional Angolan law must also be taken into account,
who establishes the separation of assets regime as a rule due to the existence
of the polygamous marriage.
Once one of the provided regimes is chosen, it is unchangeable during its validity.

marriage, what leads to the statement made, whether in the initial declaration or in the
the moment of the wedding celebration should be bilateral, as it must be done in
agreement by both parties, in an express and irrevocable manner, cannot
can be altered later.
Thus, the system of immutability of the property regime is adopted. This is the system
that still applies in the Portuguese Civil Code—art. 1714.° n.° 1, even if with some
unforeseen exceptions in the Family Code, namely the judicial separation of
assets and the judicial separation of persons and assets.

Article 50 of the Family Code establishes that the economic regime of

marriage is considered to exist from the moment of its celebration and lasts until
termination of the matrimonial bond, except in cases provided for by law, an exception that may
arise in the dissolution of marriage by divorce.
Such does not prevent, in certain cases of execution for debts exclusive of a
only the spouse may request the division of common property and its separation into two
measures, as we will see later.
The principle of the unchangeability of the property regime is advocated for being understood that

constitutes a security not only for the spouses but also for third parties. This
Legal position is fundamentally based, on one hand, on the fear that afterwards
in marriage one of the spouses may enjoy great influence over the other and
lead him to change the economic regime of the marriage to his detriment. And on the other hand, the
protection of the interests of third parties who may face new situations of
economic regimes that are unfavorable to them.
There are, however, legal systems that allow for the mutability of regimes.
property rights, such as Brazilian, Spanish, German, and Swedish law.
We can advance that the trend is towards allowing the change of the regime
economic aspect of marriage considering that married life can bring situations that
involve the change of the economic regime accepted before marriage and due to being
respect the principle of contractual freedom.
When we study the effects of the dissolution of marriage by divorce, we will have
occasion to see the cases in which the law considers the end of validity as anticipated
economic regime of marriage.
The current Commercial Companies Act, Law No. 1/04 of February 13, allows
the constitution of partnerships between spouses, as well as the involvement of both in
same society, provided that only one of them is a partner with unlimited liability—
art. 9, n. 1: "The establishment of a partnership between spouses is permitted, as well as their
participation in the same company, as long as only one of them is a partner with limited liability

limitless." In this way, the participation of spouses in any

type of commercial company, with the stipulation that only one of them can take it on
unlimited liability.
In the Family Code, when the date of the end of the cohabitation of the spouses is proven

in the sentence that declares the divorce, the validity of the

economic regime of marriage.

The regime of community property acquired

This is the rule regime or general supplementary regime of property in marriage, it applies-
it is ipso iure in the absence of an option for the alternative regime. It is a community of property

partial that will cover the goods specified in the law. The legislator understood that it is he
what best ensures the marital family the essential asset base it needs.
And this is due to the permanence of property interests that begin with marriage.
and they develop throughout the course of common life, through the goods obtained by work
of both spouses.
 As the designation indicates, this regime provides that during the course of the union
conjugal assets are being acquired, either through the activities performed by the spouses or from
earnings obtained not only from common property but also from individual property. In other words

words, an increase in the assets is expected.

The doctrine discusses the nature of the supplementary property regime,
having someone who maintains that it is based on the presumed will of the spouses. If the
if the intending spouses do not declare anything regarding the property regime, it is presumed that their intention

tacit is to adopt the supplementary regime.

However, the prevailing position is that the law takes advantage of silence.
nuptial to fix herself, abstracting from the will of the spouses, the regime
of goods that seems most advantageous to him from a social point of view.
In this regime, the nature of the following is fundamentally distinguished.
heritages:
On the active side, it encompasses the assets acquired by one or both spouses from
conjunctive or disjunctive form, for a fee.
As a temporal characteristic, it refers to the goods acquired after the contract is signed.
marriage and in principle, during the duration of the marriage. That is, "they enter into
common heritage automatically, the effects of its acquisition by a spouse
They are communicated immediately to the other spouse.

It includes the salaries and earnings from the work of each of the spouses, as well
how the income and fruits produced by the separate assets of each spouse
as how common goods.
On the passive side, it includes common debts.
In the regime of community of acquisitions, three assets coexist.
different
The husband’s own property, which includes the assets and debts he had before
from the date of the marriage and the ones that follow it and the other assets excluded by the
law of community, among which those received as a gift after marriage;
The woman's own heritage, which encompasses, in the same way as that of
husband, the assets and debts prior to marriage, the assets received after the
marriage free of charge and those exempted by law from the communion, and the previous debts
and later ones;
The common property, which includes the assets acquired after marriage to
onerous title, regular income and the fruits produced by the own assets and
joint property of the spouses, the salaries and the common debts that may be prior or
after the marriage.
A - Legal nature of matrimonial property community is not agreed upon.
the question of knowing the legal nature of the spouses' rights over the estate
common. The Civil Code spoke of common goods, while the Family Code talks about
common heritage. Some argue that this heritage is an autonomous heritage,
endowed with legal personality.
Others claim that it is a civil society and that, through the provision
of goods or services, a specific economic activity is developed. But it is
I declare that the legal regime of companies is incompatible with that of community.
property matrimonial.
What matters is to define, within the scope of the internal relations of the spouses, how it

they characterize their rights over the common share.

It is understood that this right has the nature of community property of the type
Germanic, or collective property, the 'common hand communion' (5). According to
(4) Esperança Pereira Mealha, op. cit., p. 41. s) In German: "gesamte hand".
under this doctrine, the holders have no right to the division of the assets, identical
to what exists normally in property law. They would have a single right to
affect all assets.
This is the understanding of Professor Pereira Coelho, who argues that common goods
constitute a patrimonial asset, which, considering its special allocation, the law
grants a certain degree of autonomy, an asset that belongs to both spouses jointly,
being holders of a single right over its entirety.
There would be, therefore, a collective property, belonging to both spouses, but without being

distribute in ideal shares, as the collective property, unlike the community, does not
allows the division of law, even ideal.
 Professor Eduardo Santos adheres to the doctrine according to which it is a
special communion of family law, which has no parallel in any other
branch of law.
Professor Antunes Varela clearly defines that, in the permanence of society
spouses, husband and wife are simultaneously holders of a single right over
all and each of the assets. Each of the spouses has the right in abstract to half of the
common heritage.
The Civil Code expressly stated that "the spouses participate equally in
active and passive of the communion" (art. 1730, n. 1).
The Family Code does not have an equivalent provision, but article 75, paragraph 2
it mentions that the division of assets, after the dissolution of marriage, is carried out with the

division of common assets. This provision applies to the dissolution of marriage by

divorce, by virtue of article 80 of the same Code.
This right to the virtual half of all common goods remains until it is not
for the marital bond to be dissolved.
A specific regime is applicable to the common heritage considering its purpose.
legal that is attributed to you, that of being allocated to the material needs of married life.

This common property to which the spouses are linked by personal bond
subsists, therefore, as long as this bond lasts, because, while the marriage continues
the reasons for the special allocation of these assets remain. It is, according to the
prevailing opinion, a collective or common property right.
The spouses are co-holders of a single right over the entirety of all
heritage.
Thus, while the marriage is not dissolved, the spouses cannot dispose of it,
for sale or for donation, of your share in the common assets, as it is not permitted to them
request the sharing of these assets.

This was a principle adopted in articles 1688 and 1689 of the Civil Code,
staying in the Family Code (articles 75, paragraph 1 and 80, paragraph 1), translating into
impossibility of dividing the common property during the duration of the marriage.
 Indivisibility translates to the impossibility of, as a rule, proceeding to
division of property while the marital society lasts. Hence, none of the
spouses may consider any property as their own during its validity.
Each of the spouses contributes to the common assets in proportion to
half. But this ideal right to half of the assets only materializes at the moment when
if you see the division operate. The division is impossible during marriage and is always
after its dissolution. Until then, the spouses hold the only right that applies
about all and each of the common goods, indiscriminately.
Each spouse has the right to half of the property, meaning they have the right to an ideal share.

with the value of half of the totality of the assets. 'the right to half is thus the right to
value of half.
The common heritage is generally legally protected by the legal moratorium.
that does not allow the sharing of these assets before the dissolution of the marriage, as they are

the main support of the marital society. This was stated in article 1696, numbers 1
And it is what is currently provided by article 64 of the Family Code.
However, it should be noted that the protection of the legal moratorium is in favor of
the property of the spouses and to the detriment of the creditor's debt collection, does not find

welcoming in most legal systems. And it no longer exists in the current Civil Code
Portuguese by amendment of the cited article 1696, nº 1.
In this same sense, Angolan law with the amendment to the Commercial Code
According to Law No. 6/03, of March 3, in its article 10, it stipulates: 'There is no room for a moratorium.'

established in paragraph 1 of article 64.0 of the Family Code when required from anyone
the spouses fulfilling an obligation arising from a commercial act, still
that it is only in relation to one of the parties.
B—Common Goods
Article 51 of the Family Code specifies which assets are part of the estate.
common of the spouses:
a) the assets and rights acquired for a consideration during the course of
wedding
b) salaries, pensions or any other regular income or earnings,
received by the spouses during the marriage.
 Article 51, No. 2 states: 'The assets of the spouses are presumed to be common.'
it is not proven that they are peculiar to each of them." The rule is therefore according to the presumption

legal, that the property of the spouses is common, which constitutes a decisive precept, and
that places the burden of proof regarding the nature of personal property on the spouse in that matter

interested.
Consequently, the general rule is that assets are common, with exceptions being the
property belonging to each spouse.
Common goods include all goods that have been acquired as a title
onerous, after the celebration of the wedding, which involves a partial communion, a
all goods that the spouses have before this date are considered as
own property, and only those acquired for a consideration will subsequently become
to be integrated into the common heritage. The acquisition can be made jointly
by both spouses, or alternatively, by one spouse only.
Among the acquired assets are the salaries earned as a result of work.
of the spouses, the pensions (e.g.; retirement pensions), the fruits and the earnings
produced by all private and common assets, real estate and movable property (e.g.: rents from
urban buildings, dividends from money deposited on term in banking institutions,
the annual harvests of agricultural properties, etc.).
They become common goods the goods acquired with the product of these fruits or
income.
We have, as common property, all the assets acquired by one or both.
the spouses, as long as they have been acquired during the duration of the marriage and not
they are excluded by law from the community, as they are personal assets.
The presumption of the common nature of the couple's assets contained in No. 2 of Article 51.

especially aims to protect the interests of third parties. The interested spouse or their
heirs will have to provide proof that a certain asset is private and not common.
As a rule, the confession of the other spouse that the asset is their own is enough for it not to be included.

in communion.
But it is in itself insufficient, in the face of creditors, whether they are of common debt.

or exclusive. In the case of acquisition for a fee with money or values that are
in the interest of one of the spouses, the other spouse must be called to intervene and to act
the declaration at the time of acquisition.

C—The own assets

The list of personal assets is exhaustive, only being personal assets those that
expressly referred to in the law.
Article 52 defines the separate property of each spouse:
a) The movable and immovable assets and the rights that each spouse has before the
marriage. It is relevant for the characterization of the nature of own assets that the title of
acquisition is prior to the celebration of the marriage. It does not matter whether they have been

acquired free of charge or for a fee; what matters is the date of acquisition
be prior to the marriage and that the asset was brought by the spouse to the
wedding.
If the property is acquired during the marriage but by prior right, the
the asset has the nature of personal property.

Article 1722 of the Portuguese Civil Code indicates, by way of example, that
The property owned by the spouses consists of those that come from rights to unliquidated assets.
shared after them (e.g.: liquidation of assets of a commercial company), the
acquired by adverse possession based on possession prior to the beginning of the marriage,
purchased before the marriage with a reservation of property, the acquired during the exercise

prior to a right of first refusal.

b) The assets and rights acquired by each of the spouses during the marriage
as a free title and the subrogated in place of the own.
These are the assets that come to the spouses by way of inheritance or gift. It may

it happens that the assets are left by will, or are donated to both
simultaneous spouses. But, even if this happens, the share of each spouse
this asset should not be considered as common property.
The Family Code does not contain any provision with content identical to article.
1729.° of the Civil Code, which provided that property acquired by succession or donated could
to be integrated into the communion, if such was the expressed will of the author of the generosity and

that reserved the assets or gifts that constituted the legitimate share of the donee. Hence, in
our understanding, the general rule should apply that all those are private goods that
may be acquired free of charge during the marriage.
They are considered proper the assets that take, by substitution, the place
of their own. This is the case of real subrogation, which leads to one thing occupying the place
on the other hand, there should be a connection between the loss of one and the acquisition of the other. There is a

substitution of one asset for another, as in the cases of exchanging one building for another, of

compensation received through an insurance contract related to one's own assets,

improvements made with the spouse's own funds, etc.
It would be unfair that, because the new asset is acquired for a fee, the law
he considered it common, since it was obtained in the course of marriage, but to
cost of own assets. This would harm the interests of the spouse holding the right and
the interests of third parties, potential creditors.
Therefore, as we have seen, if the title of acquisition states that the asset
acquired for consideration comes from the previous assets of the acquiring spouse,
this asset continues to maintain the quality of its own asset.
It is sought that the own assets of each spouse are maintained and that the exit
the specific asset or value is compensated by the entry of another of value
equivalent.
c) The copyright, the awards and the rewards received resulting from the
personal activity of each of the spouses.
Copyrights, both regarding their strictly personal content, as
as for their property content, they are considered as private assets. They
they encompass the rights to literary, scientific, and artistic property, the rights to
industrial property, etc..
Likewise, the prizes awarded to the
highlighted workers in companies, the prizes of sports competitions, the
reward for a charitable or altruistic action, etc., as long as it results from activity
people of one of the spouses, etc..
d) The assets acquired by virtue of each spouse's personal right.
The inherent rights of the human person are strictly personal and the rights
assets that may derive from it in relation to the spouses retain their nature of
own benefit. The amounts received as compensation for damages caused to her
physical or moral integrity and disability pensions derived from workplace accidents
or others, are the spouse's separate property.
e) Personal belongings and objects exclusively used by each one of the
spouses. This includes personal belongings such as clothing, jewelry, and others
private objectives, as long as they do not have considerable economic value.
And also the instruments used in the exercise of the profession or trade, as long as
used exclusively by one of the spouses and that do not have a high economic value.
It could be the case of the stethoscope used by the doctor, the codes of the jurists, the machine
photograph of the photographer, etc., that are solely used by the spouse in the exercise
from your professional activity or in your trade.
If the work objects are integrated into establishment or operation
developed as a business or liberal profession or otherwise, cease to have the nature of
own well.
D—The goods that are partly common and partly private

Assets can be partially common and partially private. In fact, in developing ...
from the couples' property life, assets are being replaced by others or are
being acquired partly with personal assets and partly with common assets and neither
it is always easy to make the respective distinction.
It is necessary to account for the highest value that has been integrated into the new asset: the value of

the most valuable performance is what will define the specific or common nature of the asset. It may

to allow for compensation between common assets and individual assets of each
spouse regarding the portion that exceeds the smaller payment. The reimbursement of the payment must

to be done during the sharing of the assets.

This can happen, for example, when transactions are made with regular money,
useful improvements on real estate that is owned by one of the spouses, or when one
exclusive work instrument, which is very own, if acquired with an asset
common.
In these cases, the spouse holding the property will be liable for the respective debt.

performance to the common heritage. The reverse can occur, and the newly acquired good can be

onerous title during marriage with a greater provision of common assets and a
smaller provision of own assets, thus, in this case, the common heritage creditor is the
spouse who was the holder of the private property.

The reinstatement of the spouse's contribution must be made at the value it had on the date.
in the settlement. If there is an increase in value as a result of the invested service,
this factor must be taken into account when making the restitution.

The regime of separation of property

Article 53 of the Family Code provides that if the regime adopted by the spouses
for the separation of assets, each of them retains the ownership, enjoyment, and management of their own

his present and future assets, being able to dispose of them freely, with the restrictions provided
in the law.

The income from these assets, such as the regular fruits and dividends they
I produce, salaries and compensation for work are exclusive property of each
spouse. According to this regime, there are two absolutely distinct asset masses.
separated, one from each spouse, that is to say, the husband's own assets and the wife's own assets
of the woman.
In this regime, the absolute separation between the predominates, therefore, as a central idea.

property of the spouses. Here there are only individual assets, which include both the assets of which

the spouse is the owner before marriage, as well as those acquired during the
its validity. They integrate, therefore, the respective fruits, income or any
property benefits.
And the separation is complete, not only in the domain and enjoyment of assets, but also—

as a consequence of those premises—regarding in general, the power of disposition

and the encumbrance of assets, with the spouses having the free administration of the assets, which can be

manage autonomously.
This circumstance does not exempt spouses from the duty to contribute to the
family life responsibilities, this contribution as an essential duty to married life,
it remains regardless of the adopted property regime and is proportional to the capacity
economic situation of each spouse.

In the regime of separation of assets, there is no common property. There are, on one side, the

the wife's assets and, on the other hand, the husband's assets. Although there are no common assets, it can
happen that there are some assets that belong to both spouses in a regime of
co-ownership.
This co-ownership is subject to the general rules of real rights, and not to
specific regime of matrimonial property communion, which is why any of the
spouses can request, at any time, the division of the property of which they are co-owners, through

of the process of dividing the common thing.

The spouse may also freely dispose of their share of these assets.
Article 53, paragraph 2 states that in case of doubt, co-ownership is presumed.
of movable property. This presumption can be rebutted by proof to the contrary. In
The Civil Code provided that the spouses could include in the prenuptial agreement
clauses on the ownership of certain movable goods (art. 1736).
Such a provision is not included in the Family Code, but nothing prevents the newlyweds
sign, before the celebration of the marriage, if they so wish, a document stating that
due to the specific nature of certain movable goods. The effectiveness of such a declaration in relation to

to third parties will certainly be limited and will not prevent them from using any means of
evidence to dismiss the value of such declaration.
The Family Code imposes some exceptions regarding the power of free
disposition and management of assets. These restrictions on the rule of freedom and autonomy
the spouses regarding their own assets are imposed by law because of the end
specific to which goods are affected, and that relates to the stability of the home
conjugal
These exceptions restrict the power to dispose of assets even though they exist.
the regime of separation of assets, is what is stipulated:
a) in article 56, number 2, paragraphs a) and b)—which refers to "movable goods used
by the other spouse as their own or common instruments of work or
used in household life
b) in article 57, which refers to 'the provision of the right to lease the'
family residence
In item a), the aim is to protect not only the assets used by the other spouse in their
professional activity, but still the furniture that makes up the contents of the house and are
used by the household. They include furniture, appliances, clothing,
decorative objects, etc.
In item b), the right to family residence is protected, which is granted to both.
simultaneous spouses. The Family Code does not provide this legal protection in the case
of the family residence being established in real estate that is owned by a
only spouse.
In the regime of separation of assets, it was understood that, in order to determine the

the ownership of assets as property of one of the spouses is sufficient with the confession of the other.

But such confession cannot harm the rights of heirs or creditors of the spouse.
in case. In case of doubt about the ownership of movable assets, half will belong to
each spouse, not under a community property regime, but under co-ownership.
The personal property of each spouse also includes their own debts and the
common debts of both as we will see below.

The powers of asset management; responsibility of the spouse

administrator; powers of encumbrance and disposition of assets.
Marital life involves, in its daily practice, the celebration of legal acts.
currents that take on a patrimonial character, requiring a certain
internal organization that regulates the effects and legal implications of such acts.
The family constitutes a nucleus or social cell, which is a unit in relation to
third parties, a unit that generally has a common property, which may be variable
more than should exist in principle. It becomes necessary, therefore, that legal acts
that are properly linked to the life of the family.
This linkage can be defined through the consequences that such acts will have.
regarding the common property, even if practiced solely by one spouse, or
through the marriage contract that the law requires at the time of the celebration itself
ato.
The powers of administration of assets granted to spouses vary,
obviously, according to the underlying ideological conceptions of the different
legal systems, as there lies one of the key factors for assessing existence
(or not) of equality of spouses in marriage.
 The powers of administration, encumbrance, and disposal of the spouses' assets
they depend equally on the economic regime of marriage.
In any of these regimes, the spouses can individually open accounts of
deposit in banking institutions and manage them freely. They can also manage
credit titles, in your name or to the bearer, with all banking operations
protected by bank secrecy, even in relation to the other spouse.

A—In the regime of communion of acquired assets

Ordinary administration and extraordinary administration

In the regime of community of acquired assets, there are the personal assets of each spouse.

and the common property of both, and the general rule is that each spouse manages their own
own assets (art. 54, no. 1 of the Family Code), disposing of the respective fruits and
earnings. However, as an exception, a spouse can manage the assets.
own of the other or the common goods when they are exclusively used by themselves as
work instrument.
The spouse still has the management of common assets, namely those that
constitute the product of your work and the ordinary administration of the common goods of
couple (article 54, number 3). It may thus dispose of movable goods whose ownership or possession it

belongings, such as motor vehicles, credit titles, cash, etc.

As an exception, one spouse may manage the separate property of the other.
spouse when he is absent or otherwise prevented from doing so
to manage (art. 54, no. 2, letter b)). These powers derive by operation of law without the need
of the constitution of mandate.
However, any spouse, in relation to their own or shared assets, can
always choose a representative to manage them, granting power of attorney to a third party or
to the other spouse if they wish.
The impossibility of administration by oneself may arise from the fact that
absence of the spouse or any impediment to the exercise of administration (by
example, disease, prison, etc.).
This provision explicitly set aside extensive discussions in doctrine about
whether the spouse owner could or could not grant power of attorney to a third party to manage
your assets. If you do so, the other spouse can no longer be called to the administration of
his own assets, but if he does not, the spouse can, by virtue of legal power,
to exercise the administration without the need for the granting of any power of attorney.

Along the same line of guidance, the mentioned art. 9, no. 3 of Law no. 1/04 allows that
the partner who is unable to exercise their respective rights may be
represented by the spouse.
As for the other common goods, it is important to make the distinction between:

—ordinary administrative acts and

acts of extraordinary administration.
For the first, either spouse has the legitimacy to perform them.
separately (it is referred to disjunctive administration). For the acts of administration
extraordinary, the rule is that of joint administration. Which means that the
management is exercised jointly by both spouses, who have active legitimacy
joint.
The distinction between acts of ordinary administration and acts of administration
extraordinary lies in the fact that it is a normal act within the acts that represent
the management of assets, or of an act outside the normal or extraordinary.

The management of any property is realized through acts that can be

qualify as acts of ordinary administration and acts of administration
extraordinary.
Ordinary administrative acts are those that concern:
a) the conservation of the managed assets;
b) to promote its normal fruiting.
They include the cultivation of a garden, the coffee harvest in a field, the sale
of offspring from a flock. Or acts intended for the conservation of properties, such as the
replacement of a roof, a pipe, or furniture, such as repair
from a motor vehicle, etc.
As acts of conservation can include weeding and cleaning of the building.
rustic. Like acts intended for the normal fruitfulness of an asset, those that refer to
the purchase of seeds, vaccines for cattle, etc.
 The acts of extraordinary administration involve the transformation of the very itself.

nature of good, such as the destruction of an orchard to replace it with a poultry farm,
the construction of improvements in a rustic building or the destruction of those already existing, such as

the construction of a warehouse, the demolition of a stable, the construction of a dam.

Acts of extraordinary administration involve the change of substance.
own thing or the substitution of one asset for another, and may involve powers of
disposition of assets.
2. Responsibility of the managing spouse
Article 55, which regulates the exercise of administration, exempts the spouse.
administrator of the obligation to render accounts of their administration concerning assets
common or private of the other spouse. Therefore, it enjoys a special status, different
of the one who is appointed by law for the administrators of others' property.
The legislator recognizes, in this case, as in the case of the administration of assets of

minor children assigned to the parents, which makes it very difficult to demand accountability.
among people who live in a common economy. Besides, if it imposed the obligation
periodic accountability between spouses, this regime would cause disturbance
in your personal life.
Although there is no obligation to provide accountability, the other spouse has the right to

information and must remain informed about the family's business, having access to
documentation held by the other party.
Nonetheless, the final part of Article 55 provides that the managing spouse may
to be held responsible for the acts committed to the detriment of the other spouse or the couple,
intentionally or with serious negligence. This can happen when the application of
has been done for purposes different from the responsibilities of family life or in a way that
we will take care of the family's interests.

The law requires that the acts be intentional, aiming to harm the other spouse.
the couple, considering that this provision includes not only the malicious conduct, with
fraud, violating the interests of the family, but also the gravely negligent conduct,
involving conscious negligence.
 If one of the spouses harms or attempts to severely harm the interests of the family, the
the other can appeal to the court and request that urgent measures be taken
in defense of your interests.
The Portuguese Civil Code provides that the spouse harmed by the
the harmful administration of the other may request the simple judicial separation of assets.
This provision, as we have seen, has no equivalent in the Family Code, therefore,
In such a situation, the spouse can only react by requesting the annulment of the act or acts.

harmful to your interests and detrimental to the family interests, or proposing against the
other spouse action for indemnification for the damages suffered.
In summary: the rule is that the ordinary administration of common goods is attributed
to either spouse (art. 54, no. 3 of the Family Code) since the administration
extraordinary is attributed jointly to both spouses.

3. The powers of disposal and encumbrance of assets

We have already seen that the management of a heritage involves, on one hand, acts of

administration and, on the other hand, acts of disposition or encumbrance.

It is important to establish what powers of disposition and encumbrance the spouses have.

are contained and expressed in Article 56 of the Family Code.

The rule comes in number 1, which says: 'Any spouse has the legitimacy to alienate
you encumber by act between living persons the own or common assets of which you have the administration,

except as provided in paragraph 2.

Thus, the spouse may, in principle, freely dispose of any movable property.
own (e.g.: from copyright revenues), or common (e.g.: earned salaries, rents
of properties, etc.). As for the assets of the other spouse, the administrator only
can perform acts that involve ordinary administration.
Included in the power of disposition of movable goods are monetary values,
credit titles, bank deposits, these protected by bank secrecy, etc.
The exceptions to the powers of free disposal of movable property are set forth
no n.° 2 of art. 56.° and applies regardless of the property regime (community of
acquired or separation of assets). These are specific norms that were inserted into the law
from families of various countries and whose purpose is to protect certain assets in particular
considered essential to the home life or to the professional activity of the other spouse. They are
they as the references:
a) the movable property exclusively used by one spouse belonging to the other
as a working instrument—paragraph a) of paragraph 2 of article 56.
b) to the movable assets owned or jointly used by the spouses
in household life or as a common work instrument—subparagraph b) of paragraph 2 of art.
56 degrees.
The work instruments include the furniture used in the activity.
spouse's profession, alone, or jointly with the other. The assets used in life
The household items are those that make up the filling of the house and are used by the family.

This means that the spouse who has a motor vehicle as their own property
that the other spouse uses as a professional driver cannot be alienated without the
consent of this. Likewise, the goods that make up the contents of the house
(furniture, stoves, dishes, etc.), whether they belong to each spouse or are
common property can only be transferred with the consent of both.
Regarding real estate and the commercial establishment, considered
of special relevance to the family economy, the rule contained in item 3 of article.
56.°. The owned or common properties and the commercial establishment can only be
alienated or burdened by deeds between the living, with the agreement of both spouses, except
if the regime of separation of assets applies between them.
It is understandable that the law requires the consent of both spouses for acts.
of provisions that concern real estate or commercial establishments. It is that,
even if it concerns the personal assets of one of the spouses, the income or fruits from
those produced are considered common goods, by virtue of number 2 of article 51. Hence the
interest of both spouses regarding the destination of these assets.
It is considered, however, that nowadays securities can be translated
more economically relevant than real estate, so the protection that the law
there's not much reason for these last ones.
Given its special relevance in family life, the Family Code mandates that everyone
the act of disposition regarding the lease of the family residence shall be decided
by agreement of both spouses. According to the rule of article 57, the agreement of both
spouses are required for:
a) the amendment, resolution, and termination of the lease agreement, by the
tenant
b) the assignment of the tenant's legal position;
c) subletting or total or partial lending.
Even if the right to lease belongs to only one of the spouses, because of
acquired prior to the marriage, the holder of the right shall not be able to practice
no act of modification or alienation of this right without the consent of the other
spouse.
It is evident that there must be a right to lease the residence.
where the couple lives. If neither spouse is the tenant of the dwelling where
Regarding residence, the issue of alienation cannot be raised.

As we pointed out earlier, the Family Code does not provide for the right to grant
family residence if it is located in property that is owned by one of the spouses.
If this happens, the general rules of property law applicable to each one are to be applied.
with the restrictions already pointed out regarding the powers of alienation and encumbrance of assets
properties contained in the aforementioned article 56, paragraph 3, applicable to the regime of community of property

acquired.
The spouse's consent can be expressed or implied. But, if the act is
subject to the form provided by law, consent must take that same form or
it must be given at the very act.
Article 57 protects the right to lease the property to third parties.
intended for the residence of the family group, seeking to safeguard the right to
housing for all family members, essential for human survival.
As for the acceptance of donations, inheritances, or legacies, the rule
The constant of art. 58, no. 1 is that each of the spouses does not need the
consent of the other to do it. In principle, such acts will enrich the
family heritage. It may happen that the acceptance of such assets carries burdens, but,
if this is the case, the general rules provided in the Civil Code should be applied, which limit the

responsibility of the donee or heir.

On the other hand, the rejection of inheritance or legacy can only be done by both
spouses. In this case, the spouse who is not the beneficiary of the inheritance right or
the legacy must give its agreement—art. 58, no. 2. And this is because repudiation can imply
the loss of a asset value.
The actions that may result in the loss of a right that can only be transferred.
with the consent of both spouses, claims must be made against the husband and the
woman checking herself in this case a necessary litisconsortium, according to the
stipulated in articles 18 and 19 of the Code of Civil Procedure.
B—In the regime of separation of property

Each spouse is granted the power of free enjoyment and control of their own
goods, since each of the spouses retains ownership of their previous assets or
post-marriage. Each spouse can freely manage their own assets and
dispose of them individually, and without the consent of the other, whatever it may be
nature of the good, movable or immovable.

The restrictions set out in paragraph 3 of article 56 are not applicable in this way.
to real estate and the business establishment, nor regarding the repudiation of inheritance
the legacy, mentioned in article 58, paragraph 2.
The restrictions on the powers of alienation or encumbrance of assets when in effect the
the regime of separation of assets are those already mentioned and refer to:
a) to the movable assets used as a working tool by the other spouse or
by both jointly—art. 56, no. 2, paragraph a);
b) to the movable property used in home life—art. 56, n. 2, letter b);

c) to the right to lease a family residence—art. 57.° [87]

Judicial provision of the agreement and judicial opposition
Article 59 allows for the consent of the other spouse to be overridden: a) in the case of

unjustified refusal;
b) in the case of impossibility of obtaining.
 It may happen that the spouse who must give the authorization for the practice of

certain acts refuse, without basis, to give this consent, or that are
in a situation that prevents him from giving this consent (due to being absent, due to being
sick or for any other reason).
In these cases, the court is called to intervene and consider whether or not to authorize.
the act's practice. This supply process is regulated as a jurisdiction process.
voluntary in articles 1425 and 1426 of the Code of Civil Procedure. When considering whether
it must or must not replace consent, the court must take into account the family's interest.
The practice of any of the acts mentioned in the law by only one spouse without the
the consent of the other leads, depending on the cases, to its nullability or nullity.
The spouse may legally request that it be annulled in accordance with
Article 60 of the Family Code.
Acts that involve the alienation or encumbrance of the described assets are voidable.
no art. 56, n. 2: the own goods used by another as their own instrument or
common work and those used in home life; the properties, own or common, and the
commercial establishment, unless the regime of separation of assets is in effect; the right to
leasing of the family residence; the renunciation of inheritance or legacy.
The right to judicial challenge of acts harmful to the assets of one of
spouses can transmit to their heirs, as allowed by the last part of article 60.
No. 1.
The acts performed by one spouse that should be carried out with the agreement
both are subject to annulability.
Although nothing is mentioned regarding the later confirmation of the null act, it is possible,

in general legal terms (art. 288 of the Civil Code), taking the tacit form or
express, what will terminate the annulability. If the authorization is subsequent, it takes the
form of ratification.
When the spouse intends to challenge the act, they must do so within a period of one
as of the date on which the applicant became aware of it, but never later than
three years have passed since its celebration—art. 60, n. 2.
The granted deadline is counted from the date on which the interested spouse had
knowledge of the act being practiced by the other spouse and not of the date of its celebration,
benefiting the spouse in relation to the interest of third parties. A limit is set
a period of three years, within which the annulment can be requested, in this way too
to protect the interest of the acquirer of the asset in question.

Article 60, paragraph 3 reserves the rights of the good faith purchaser relating to the property.
movable property not subject to registration, which is protected from the request for annulment.

The interests of the spouse who did not intervene in the act are thus postponed.
relation to the third acquirer. The spouse who acted without the consent of the other
a spouse, with the intention of harming or with gross negligence, may be
held responsible if the conditionality of the aforementioned article 55 of the Code is verified.
of Family.
A distinct situation is that referred to in paragraph 4 of Article 60, which mandates the application to the transfer.

the burdening of the property of the other spouse the rules related to the alienation of things
alienation. We are facing an act that is null, affected by substantial nullity.

This provision refers to an even more serious situation, one in which a

the spouses alienate a property that does not belong to them, as it is the property of the other spouse. And,

although there is a marital bond between the spouses, this does not prevent the asset
be indifferent to the other spouse.
Articles 892 and following of the Civil Code contain the general rules applicable.
on the sale of third-party assets, stating that it is null. The rules regarding the deadlines for

The challenge is of nullity and not of mere annulability, and it can be asserted.
at all times. This means that the applicable rules are the general rules of business
legal provisions contained in civil law and not the special norms of family law.

The debts of the spouses

The legitimacy for each spouse to incur debts without the consent of the other
The spouse was assured by paragraph 1 of article 1690 of the Civil Code. This principle does not
is contained in the Family Code, but we must accept that it is a principle
also accepted by this Code, which is not expressed as unnecessary.
It is implied in the principle of equality of spouses, enshrined in article 21.
which is extensive to all marital rights and duties, whether they pertain to the personal sphere
regarding the patrimonial sphere.
 It can be said that both the husband and the wife maintain, even after
married, the same property powers to incur debts, without the need for the
consent of the other.
Debts can be incurred by spouses in relation to third parties or by
the spouses among themselves.

What varies according to the regime of assets is the nature of the debt, it is the character

solidary or set of obligation, and also the complex of goods that respectively
they are responsible for the debts incurred by the spouses.

Depending on the cases, assets may be called upon to pay the debts.
own, the common goods or the right to share in the common goods.
In the Family Code, debts are classified, regardless of the regime.
of goods, in:
a) common debts;
b) exclusive debts.

A - Common debts
In the regime of community of acquired assets, the responsibility of the spouses for
common debts are joint - art. 61, no. 2; in the regime of separation of assets, the
responsibility is merely joint—article 63, no. 2 of the Family Code.
Common debts are contained in Article 61 of the Family Code and can be
incurred by both or by one spouse, but are communicable to the other. In fact
deviating from the common rules of obligations law according to which only the person themselves
you can incur debts that bind you, within the scope of marital relations only one can
spouse coming to incur debts that obligate him and the other spouse who did not intervene
in the legal transaction.

Such occurs in relation to the expenses arising from normal family life that have
what needs to be done to meet the needs of the household and should correspond
to the economic-social standard of living of the couple.

These debts are communicable debts as they will hold the other spouse responsible.
that did not intervene in the contract from which the debt arises.

They are:
 a) The debts incurred by both or by one of them to meet the charges
of family life—art. 61, no. 1.
Although the Code does not say it explicitly, it can be assumed that the debt is
prior to the wedding, such as expenses for the honeymoon, with the
acquisition of furniture for the family residence, etc..
It is important to clarify the concept of family life burdens because they
encompass the largest flow of expenses of the household. Some legislations, such as
the French and Spanish discriminate in law what should be understood by 'cbargesdu'
marriage or matrimonial charges.
They cover the expenses necessary for subsidizing the family's needs (the
couple, children and other members of the household), needs that encompass
the support, food, education of children, housing expenses, installation expenses,
on vacation and rest, medical assistance expenses, legal expenses, whether they are
made in the interest of one or both spouses, etc.
These expenses must therefore be in accordance with the uses and the situation
economic situation of the spouses or with their respective standard of living and should not be

excessive, typically periodic in nature, although sometimes they may arise

sporadically due to family life contingencies.
If either spouse has children from a previous union who are part of the household.
familiar, the burdens related to the support, housing, and education of these children are
included in the normal charges of family life.
The contribution of both spouses to the normal burdens of family life
Yes, as we have already had the opportunity to see, the fulfillment of one of the marital duties, the duty

of reciprocal material assistance, between husband and wife.

The food owed to common descendants, as well as to each of
Previous spouses before marriage are considered as normal burdens of life.
familiar.
In fact, due to the provisions of number 4 of article 61, it has been made broader the
concept of normal family life expenses, as it now includes the alimony owed
to the common descendants and to the descendants of each of the spouses, born before
of marriage.
 In this arrangement, all expenses incurred with food were equated.
common descendants and the descendants that either of the spouses may have had before the
marriage, whether the dependent lives in common economy with the spouses, or lives
in separate economy. For example, the children born from a previous common-law union.
that live with the other parent, but receive child support from one of them
spouses.
This obligation, which is joint for both spouses, reveals the importance of
initial declaration for marriage, which requires that any children born be indicated
before its celebration and which is expressed in article 3, section 2, letter e) of the R.A.C.
It seeks to protect the interests of the children in this way, as the obligation of alimony
It will be extensive to the other spouse, even if they are not a descendant of the one being supported.

The communicability of the debt therefore derives from the purpose that was had.
in view, regardless of the fact that they were incurred by only one spouse.
b) The debts incurred for the common benefit of the couple—art. 1, no. 1.
The debts covered by this provision must be established after the
wedding celebration and within the normal powers of administration granted to
spouse. The common benefit of the couple is assessed by the purpose aimed at when it was contracted.

debt, and not by the result effectively obtained from the transaction.
The common benefit of the couple is a legal concept distinct from that of the obligations.

normal family life. It implies, on the part of the spouse, that they entered into a contract.

the debt in the exercise of their powers of management of assets and that there is a
objective situation from which it can be inferred that the intention was to obtain a certain
profit or benefit for the couple.
The activity performed should aim for a specific benefit for the couple.
In other words, it must be a profitable activity, which, according to the rules of
common experience should result in a material advantage for the couple. Now, according to
the principles of risk or probability, the two spouses, who can reap the profit,
they will also be responsible for the loss, if it occurs.
For example: one of the spouses incurs a debt for the installation of a
aviary, with the aim of obtaining profit from such exploitation; if this exploitation ceases
due to an epidemic that decimates the birds, the debt should be considered incurred in
common benefit of the couple, even though the company did not make a profit, but rather
loss.
The common benefit of the couple includes not only material interests but
also interests of an intellectual nature. An example of the latter can be indicated
or the higher professional education of one of the spouses. It is the goal pursued by the debtor.

which must be taken into account, but this intention must be appreciated within the rules
normal of common experience and correspond to an activity of which one can
legitimately expect benefit for the couple.
The Family Code says nothing about the debts incurred by the spouse in
commercial exercise, contrary to what was provided in article 1691, letter d) of the Code
Civil.
Law No. 6/03 came to amend and revoke several articles of the Commercial Code, still
in force, namely giving the following wording to art. 15: 'Commercial debts
The spouse merchant is presumed to be contracted in the exercise of their trade.
This new wording follows that adopted by Portuguese law, Decree-Law n.º
363/77, of September 2, and eliminated the presumption that was in the previous wording.
from the same article that the debts of the merchant spouse were presumed to be incurred
for the common benefit of the couple.

The previous article 1691, nº 1, paragraph d), of the Civil Code that held responsible
both spouses are liable for debts contracted by either of them in the exercise of
commerce was revoked for having revoked all of its Book IV and Article 61 of the Code
Family does not have an equivalent disposition.
In this regard, we understand that once the legal presumption has disappeared, it will be incumbent upon

always on the merchant's creditor the burden to allege and prove that the debt incurred
in the exercise of commerce, understanding the exercise of commerce as practice
repeated and habitual, resulted in the common benefit of the couple.

This regime does not apply, however, if the regime of the spouses is in effect.
separation of property.

Law No. 6/03 also revoked articles 9 and 16 of the Code in its Article 3.
Commercial with openly discriminatory content against women, enshrining
now in article 7 that "any person with the capacity to perform acts of commerce can be
civil capacity
The common benefit of the couple is not presumed, except when the law declares it.
It was the case of the special law that regulated and protected commercial relations.
Even in this case, it should be understood that the law refers to the merchant spouse.
and not isolated acts of commerce. Acts of mere favor should also be excluded, even
if practiced in the exercise of commercial activity.
The burden of proof of common benefit, when the law does not presume it.
existence by virtue of special provision falls upon the creditor. It is the spouse's responsibility.

interested in taking the test of the legal presumption removal, when it exists, and is applicable
to the creditor the burden of proof, in the case of lack of presumption—art. 61, n. 3. The rule is that

that the creditor must provide proof of the existence of the couple's common benefit, being responsible for

to the interested spouse or spouses to prove the distancing of the presumption, when
there exists a special law to presume this common benefit.
c) Debts that burden personal property or common property.
The debts that fell on the property of one of the spouses but that
common yields that will benefit both are also considered
like common debts. However, it is necessary that the regime of community property prevails.
between the couple.
Those that should be included in the debts incurred for the common benefit of the couple are those that

donations, inheritances, or legacies, as mentioned in article 1693, paragraph 2 of

Civil Code, and also those that fall on private property or common property, as long as
the perception of the income or fruits of those goods is at stake.
It is understood that the burdens that fell on common goods (when the
donation, inheritance or legacy may enter the common assets) or about the assets
own (when the perception of income is at stake) should be viewed by the law
as a communicable debt. However, it is necessary to restrict this character of common debt.
in the case of donation, legacy or inheritance, as the debt could only amount to the value of the asset

the right in question and not beyond that amount.

 In the case of charges on the property of one spouse, there is only communicability.
of the debt if this produces fruit or income, for if it does not, the debt is not
communicable.
d) Those debts that were incurred are still considered common debts.
both spouses or by one of them with the agreement of the other—art. 61, n. 2 of the Code
of Family.
In this case, it is not relevant to know the nature of the debt nor what it is.
purpose, because there is the will of both spouses in the legal transaction that
the debt resulted, and, as such, under the general terms of law, the debt is both parties', as
subjects of the legal relation in question.
The facts attributable to the spouse can be unlawful or lawful, whether facts
culpable or non-culpable.
Debts arising from unlawful acts committed by one of the spouses are
always uncommunicable.
e) Debts arising from the strict liability of one of the spouses.
In the case of purely civil liability, the second part of the clause stipulates
b) of article 62, which, if they are covered by the provisions of article 61, nos. 1 and 2,
they can compel both spouses, as long as the community property regime is in effect between them

of goods.
For example: liability for road traffic accidents in the capacity of
owner of the vehicle that caused it, when the vehicle circulated for benefit
common of the couple. When the civil liability does not arise from intent or fault of
debtor spouse, but of

responsibility for the risk due to the profitable activity carried out by him
the debt is communicable.
B—Exclusive debts
Exclusive debts can also be referred to as singular debts,
own or personal debts.
They are the non-communicable debts incurred by only one of the spouses.
 The debts that are exclusively the responsibility of are expressed in article 62.
spouse who contracted it:
Debts incurred by each of the spouses without the other's agreement.
As long as the debt was incurred only by one of the spouses, without the
consent of the other, and it was not contracted to meet the burdens of life
familiar or for the common benefit of the couple (items 1 and 2 of article 61), it only binds the spouse.

who individually assumed the obligation.

b) Debts arising from convictions for crimes, compensations, restitutions,
court costs or fines for facts attributed to each of the spouses.
All debts arising from criminal responsibility and related civil liability
with criminal liability, as well as those arising from civil liability
extracontractual, when resulting from the personal activity of the spouse.
c) The alimentary debts not included in number 4 of article 61.
These are the debts that refer to any of the alimony obligations.
generically provided for in articles 249 and 261 of the Family Code.
They cover the provision of support to descendants born after the
marriage, to other relatives (ascendants, siblings, etc.), to ex-spouse or ex-
partner in a stable union.
This alimony obligation falls solely on the spouse who has the duty to
to lend and is uncommunicable to the other spouse.
The last part of this paragraph c) of Article 62 exempts the case where the alimented person lives

in fellowship of table and dwelling with the spouses.

In this case, we are within the general provision contained in clause 1 of article 61.
it assigns joint liability of the spouses for debts incurred to meet the
normal burdens of family life. As we have seen, these burdens encompass all of the
expenditure made with the members that make up the household.
d) There are also exclusive debts, as we have already mentioned, those that fall on
the own assets of one of the spouses, as long as it does not concern the perception of
income that is common and the debts that fall upon the generosity that one has
was assigned to one of the spouses. According to the provisions of article 58, paragraph 1 of the Family Code,

the spouse can accept

 donations, inheritances or legacies without the consent of the other, justifying that
the burdens related to the received gift fall on the spouse who accepted it.

Responsibility and guarantee of debts

As we have already pointed out, the couple's responsibility for common debts is
solidarity nature when they are married under the community regime of
acquired, and it is merely joint if they are married under the separation of
benches.
Article 63 of the Family Code holds accountable for common debts:
a) the common property of the couple;

b) the personal assets of each one.

The common goods are addressed first. In the case that these are
insufficient, each set of assets belonging to the other spouse is called for the
payment of the debt. The obligation to satisfy the debt is jointly extended to
each of the spouses.
Article 64 of the Family Code refers to the assets that respond to the debts.
that are the exclusive responsibility of each spouse.
They are only liable for the exclusive debts:

a) the own assets of the debtor spouse;

(at the same time) the product of your work;
c) your share in the common assets.
The personal assets of each spouse—such as the product of their work, which is
a common good (art. 51, no. 1, letter b))—are called immediately for
satisfy the payment of exclusive debts. It was understood to withdraw from the protection of
legal moratorium on the product of work, so as not to harm creditors in such a way
onerosa.
Moreover, with regard to exclusive debts, the principle that the partition in
common goods can only be determined when the dissolution or annulment of the
marriage. Until then, the legal moratorium remains that imposes that compliance with the
the exclusive obligation of one of the spouses is only enforceable when the marriage is

dissolved or annulled - last part of item 1 of article 64.

As we have already seen when we studied the legal nature of the communion

matrimonial property in marriage, this moratorium is established with a view to the

allocation of common goods to meet the needs of family life.
It is increasingly controversial to know whether to prioritize interests or not.
from the family about the creditors' interest. Hence the determination of restrictions on the principle
of the legal moratorium.
In addition to the aforementioned fact that the moratorium does not cover the product of labor.

from the debtor spouse, there is also the reservation of item 3 of article 64, which removed the moratorium.

when it comes to debt that is one of those mentioned in paragraph b) of article 62.
includes those arising from crimes, damages or other debts due to facts
attributable to each of the spouses.
There is also no room for the legal moratorium provided for in Article 64 of the Family Code.

when the spouse is required to fulfill an obligation arising from an act of

trade, even if this is only in relation to one of the spouses, as we have already seen,
according to the provisions of article 10 of Law No. 6/03. Therefore, the debts incurred in
trade exercises become immediately enforceable, demonstrating the trend
to remove the legal moratorium that benefits the spouses but harms the
legitimate interests of the creditor.
In these cases, it was considered that the interest of the victims, of the creditors of the right to

compensation and the State as a creditor of fines or court costs and the activity
commercial interests should prevail over family interests.

End of property communion due to judicial execution

When there is no room for legal moratorium, and the creditor does not have to wait for the

dissolution of marriage to obtain debt collection, can this be in the process of

execution brought against one of the spouses, request the citation of the spouse of the executed
to request, wanting, the separation of assets or to prove that it has already been requested elsewhere

process, for the division of assets to be carried out and to determine each party's share
spouse.
 That is, when there is room for a legal moratorium, the action taken against just one
the spouse is suspended after the debtor's right to a share in the assets has been pledged
common (art. 825, n. 1 of the Code of Civil Procedure), waiting for it to take effect
dissolution of marriage.
This provision is no longer in force in Portuguese law as it has been amended.
by Decree-Law No. 38/2003, of March 8, which allowed the issue of
communicability or non-communicability of the debt to the other spouse is accepted or
not for this in the executive process itself.
The indebted spouse may also be interested in bringing the other to action.
spouse and hold him responsible for the partial payment of the debt claiming the purpose for which
it has been contracted.
But it can happen, according to the civil procedure law, that it proceeds to
execution when there is no place for the legal moratorium, the creditor must request the citation of the

spouse of the debtor to request the separation of assets—art. 825, no. 2 of the Code of
Civil Procedure/
Similarly, it is foreseen, both in the institute of bankruptcy and in that of insolvency,
that the separation of the spouses' assets be carried out. In article 1237, no. 1, letter b)
The Civil Procedure Code (11) provides that the spouse of the deceased can claim their
right to separate from the bankrupt estate their own assets or their share in the assets
commons.
In the case of insolvency declaration of a non-commercial debtor, Article 1319.
The Civil Procedure Code provides for the separation of the spouses' shares.
As can be seen, in these specific cases, and according to the final part of article 50.
of the Family Code, "(...) except in the cases provided for in this law" the end may occur
joint ownership of property in marriage, even during its validity.
Later, regarding the dissolution of marriage, we will see that these effects
they can stop producing when the end of the cohabitation of the spouses is verified and
this fact should be included in the sentence that declares the divorce.

2. If there is no room for a moratorium, assets can be immediately seized.

common to the couple, provided that the executor, upon naming them for the seizure, requests the citation

of the executed to request the separation of assets.

 (11) ARTICLE 1237.
Restitution and separation of assets
The process and deadlines for claiming and verifying credits are also
applicable:
(...)
b) The complaint and verification of the right that a spouse has to separate from the estate

your own property or dowry or your share in the common goods.

(12) ARTICLE 1319.
(Effects of the declaration of insolvency of the married debtor)
1. The declaration of insolvency results in the separation of the shares,
if the insolvent is married under the regime of community property.

2. Upon the seizure, the spouse of the bankrupt is cited for the separation of assets and
this is processed in conjunction, serving as a description of goods the seizure records.
The lack of citation of the spouse results in the annulment of the acts that are performed.

subsequent to the seizure.

 CHAPTER 15.0
The dissolution of marriage

Termination of the bond

The marital bond, as a human phenomenon, is subject to various
vicissitudes. Sometimes the very relationships between the spouses may deteriorate
in such a way that it is not possible to maintain the marriage for the purposes for which it was established.

Between husband and wife, situations of antagonism and misunderstanding arise such that
make it impossible to maintain a common life.
Other times they are natural facts (like death), social phenomena (like the
war) or behaviors resulting from human will (such as personal withdrawal) that
subject marriage to contingencies that will affect it in its fundamental substance.
All these issues challenge marriage. The one that has generated the most debate is
raised is the question of whether, during the lifetime of the spouses, it should or should not be maintained the

marital bond, or, from another perspective, the question of how it should be accepted in
legal order this de facto reality that is the cessation of the common life of the spouses.
The causes of marriage dissolution are, in summary, two: the death of one or
of both spouses simultaneously, and the divorce.
Death dissolves the marriage instantly; the date of death is the date of dissolution.
of the wedding.
The Family Code (Article 74) provides the grounds for dissolution of
marriage, death, or the judicial declaration of presumption of death (which is equivalent to
death) and divorce.
In certain Family Codes, it is still considered a cause for the extinction of
marriage link the declaration of nullity of the marriage through the judicial route.
In our conception, the marriage tainted by invalidity is an act that ceases to
to exist in the legal order after the sentence that declares the nullity, although it...
assign certain legal family effects in the case of "putative marriage"
invokable by the party who entered into the marriage in good faith.
If it is certain that one can speak of the extinction of the marital bond, whether it is...

works for dissolution either due to invalidity, the truth is that in the case of annulment, the flaw
the marriage will refer to the very act that gave rise to it, that is, it is granted to the
moment of your celebration.
In the extinction by dissolution, we are facing a marriage that is valid and that
as such is recognized in the legal system.
In this case, the valid marriage will be extinguished or dissolved due to facts.
supervening, death or a legal cause for divorce, which the law deems relevant for
carry out the dissolution.

The dissolution of marriage by death, which today appears as an obvious effect of the end

of the marriage bond, it was not always so in bygone times. The death of the husband neither
always allowed the woman to enter into a new marriage. In some societies, such as in
India, the widow would throw herself alive onto the pyre where the body of her deceased husband burned, to the

to accompany in death.
In Africa, including in certain areas of Angola, even in recent times,
when an important chief died, one or more of his wives were sacrificed in
sacrifice for them to 'serve' beyond death.
The levirate system also kept the woman linked to her husband's family.
even after his death.
Widowhood is the marital status of a spouse that arises from the death of the other spouse.

death being the cause of the dissolution of most marriages. It is a way of

dissolution that arises from the occurrence of a natural fact, and which does not generally raise

legal difficulties.
The marriage is dissolved at the moment of the death of the other spouse, who
marks the beginning of the state of widowhood for the surviving spouse.

Judicial separation of people and assets

The dissolution of marriage can fundamentally occur through death or by
divorce. But it is also important to consider the legal figure of separation of persons and assets,

specific institute of family law recognized in various countries and that had
welcome in the previous Civil Code.
The acceptance that marriage can be dissolved by divorce has not always been
a peaceful issue, especially in countries where it is felt most strongly
religious convictions, predominantly Catholic.
 It was precisely the canonical conception of marriage that influenced the system.
Portuguese legal system, according to which marriage has the perpetual nature of a
sacramento, being therefore, indissoluble.
The principle of the indissolubility of canonical marriage was expressed in article.
1790.° of the Civil Code.
Since marriage is not dissoluble, the law only allowed the spouses to separate.
legal, which was only granted when it was established that it had become
"impossible to maintain the common life of the spouses," or that it "became intolerable
the conjugal bond," according to expressions used respectively by the legislators
Portuguese and Italian.
Judicial separation maintains the marital bond between the spouses, being
a form of suspension of marital life that does not dissolve the marriage.
With the separation, the spouses cease to have the obligation of living together regarding

the bed, table and dwelling (that is, the bed, table and dwelling), but maintain the
other marital duties, such as the duty of fidelity, with the spouses being impeded
to enter into a new marriage.
The institute of judicial separation of persons and property is no longer recognized in the majority

part of the legal systems, namely of the Portuguese-speaking countries,

like Cape Verde and São Tomé and Príncipe.
In Angolan law, Law No. 9/78, which regulated divorce, did not allow for
judicial separation of people and assets by mutual consent, but only the
divorce. Article 15 of this Law expressly repealed Articles 1786 to 1788 of the Code
Civil, where judicial separation by mutual consent was provided. The Code of
The family also did not accept the institute of judicial separation of people and assets.
However, in countries where Catholic influence is stronger, such as
Portugal, Spain, Italy, and Brazil, the institute of separation of assets, designated as the
"divorce of Catholics" still persists in the current legislation.
The Brazilian Civil Code recognizes in its Article 1571—III as putting an end to the
joint marriage, the judicial separation.
 The judicial separation according to Art. 1575 of the same Code 'involves the
separation of bodies and the division of assets. In brief, it is important to analyze this
institute as established in the Civil Code.
The judicial separation of people and assets, as the name indicates, translates into a

legal alteration of the spouses' lives, which always presupposes the existence of
contentious procedure and must be declared by a judicial ruling.
As such, it reports the exercise of a strictly personal right, which must be
to be exercised by the spouse himself.
Only in the case of interdiction could this be represented by the respective one.

legal representative, requiring this to be authorized by the family council,

as provided by article 1781 of the Civil Code.
The legal effects of contentious separation of persons and property are very different.
the divorce. While this dissolves the marital bond, separation is limited to
suspend some of the reciprocal duties of the spouses.
Article 1774 of the Civil Code defined the effects of separation by stating that it
did not dissolve the marital bond.
The spouses were no longer subject to the duties of cohabitation and assistance,
without prejudice to the right to alimony they could have.
The woman continued to have the right to use her husband's surname (art. 1675 of
Civil Code), but it could be private from him in the case of undignified behavior and due to

judicial decision.
In the field of property, the effects of judicial separation of persons and assets were
precisely the same as the dissolution of marriage by death or by divorce (arts.
1688° and 1774°.
Having found the asset relations between the spouses, the division was then carried out.
of the common goods, granting each what it owed to this heritage and settling
previously or passive—art. 1689 of the Civil Code.
The contentious separation of people and assets had among the spouses still the same.
effects of divorce, both in relation to the children and regarding the law
accessory.
 As a stable family situation, the separation of individuals and assets.
constituted a marital status and was subject to registration, the court that declared it should,
communicate unofficially the sentence to the competent Civil Registry Office, in order to
officially recorded both in the marriage record of the spouses, as well as in the
respective birth certificate (art. 101, art. 87, n. 1, letter a) and art. 88, n. 1,
paragraph e), of the Civil Registry Code).
The separation of people and property was a situation of a transitory nature.
It could end with the death of one or both spouses, through reconciliation.
of the spouses, and by the conversion of separation into divorce.
Article 1793 of the Civil Code, which regulated the conversion of the separation sentence
judicial in divorce was revoked by Law No. 53/76, of July 2.
Article 4 of this Law allowed the conversion of the separation of persons and assets into

divorce by simple request of one of the spouses.

Although this provision aimed at the conversion into divorce of the sentences
of separation pronounced before its entry into force, nothing prevented it from being
applied in a broader sense, allowing for its extensive application to sentences
of separation that would be pronounced after the law comes into effect.
As already emphasized, the judicial separation of people and property is not an institution

legal that aligns with a secular conception of marriage, by creating a situation

among spouses that, as a rule, creates ambiguities and often generates
situations of fact on the margins of the law.

Judicial separation of persons and property is decreed and once the sentence has become final,

any of the spouses, regardless of their procedural situation in the respective

action, and regardless of having been considered as the guilty spouse,
could come to request the conversion of the judicial separation into divorce, and this without having to

await the passage of any term, after the judgment becomes final. It could only obstruct the
conversion, the fact that the reconciliation of the spouses has taken place.

Article 5 of Law 53/76 specified the procedural form of the conversion request,
which was of extreme simplicity.
If the reconciliation of the spouses had not been carried out, the conversion of the separation

the divorce was mandatory in nature, and the judge could not deny it.
 Article 8 of Law No. 1/88, of February 20, which approved the Family Code
contains transitional provisions that enshrine the same principles as the Law
No. 53/76.
In actions for the separation of persons and assets pending at the date of entry into force

of the Family Code, the A. or the R. could request the conversion of the separation request
in divorce (no. 1 of article 8).
In cases where the judgment has already become final, either party
you can come to request the conversion, simply requiring a simple request (numbers 2 and 3 of
even art. 8.
The conversion of judicial separation of people and assets into divorce is permitted in
current Portuguese Civil Code at any time by request of both parties
spouses and one year has passed since its declaration at the request of only one spouse, if
if there has been no reconciliation and if it is requested by both spouses it is not necessary
the course of the aforementioned period—wording of article 1795 by Law no. 61/2008, of 31 of

October.
In Brazilian law, either spouse can request the conversion of the separation.
in divorce since one year has passed since its decree - art. 1580.
Civil Code.

Judicial declaration of presumption of death

In the vast majority of cases, the death of one of the spouses can be proven.
through the act of the civil registration proving the death, which would seem unnecessary
to foresee the law, as the second cause for the dissolution of marriage, the judicial declaration of

presumption of death.
Sometimes this does not happen, as the death of the spouse is not proven with
clarity due to the fact that the death cannot be directly verified.
These are the cases in which the other spouse is absent in a broad sense and in which

check your disappearance.

When someone disappears without knowledge of their whereabouts, and there is,

simultaneously, strong indications that this is not just a simple absence, but rather
in a case of death, the law resorts to the institute of presumed death.
your greeting is normally of a spontaneous nature and results from the will of each
one of the spouses to strengthen and safeguard the marital bond.
The violation of marital duties is not explicitly protected by the rules.
law, although in certain extreme cases there may be criminal responsibility, such as in
in case adultery is punishable as a crime, as well as when there is a violation of duty
of material assistance and the corresponding lack of food provision.
Law No. 2053 (Family Abandonment Law), which we have already discussed, criminalizes certain

conducts related to the lack of alimony payment to the spouse and abandonment of the
marital home.
The serious or repeated violation of marital duties, when not caused by
due to the conduct of the other spouse, it grants the offended spouse the right to request the

divorce, obtaining in this way the dissolution of the marital bond.

There are often problems of abnormal psychic behaviors due to
part of one of the spouses that is less detectable for the couple's external social life
more than that take great relevance in the couple's intimate life and should be the object of

appropriate psychic therapy.

Cultural differences and divisions also make married life difficult,
creating almost insurmountable obstacles. The conflicts of mentality in our
society in transition, are causes of a large number of conflicts, as they stem from
different conceptions about the relationship between man and woman in the context of marriage.

Often there is also the interference of third parties, namely from the
relatives of one or the other spouse, in the couple's life.
The conflicts that arise in married life may seek a solution in
pre-judicial phase or when there is already an appeal to the court due to the relevance given to the phase of

reconciliation of the spouses.

In various legal systems, there is an increasing search for the use of measures
of reconciliation, avoiding the rupture of marital ties or minimizing wear under the
psychological and emotional point of view between spouses, which, for the most part of
Sometimes, it will reflect in your work activity and in the social environment to which you belong.
 It is this second assumption that establishes the difference between absence and the

presumption of death. It is, as the expression indicates, a presumption

judicially declared that a certain fact occurred.
Article 76 of the Family Code defines the legal effects that derive from the
presumption of death declaration regarding the previously contracted marriage.
Article 76, No. 1 states that the judicial declaration of presumption of death of a
the spouses dissolve the marriage from the final decision.
Hence, the decision to be issued by the court that rules the facts proven that
the presumption of death should declare the marriage dissolved.
In light of such a court decision, several situations may arise: either it may be proven
directly that the death occurred, or, on the contrary, there are reports that the absent is
I live, or check the return of the absent.
Article 76, paragraph 2, states the instance of, after the decision has been finalized.

judicial declaration of presumed death, the absent spouse reappears, or because the
absent returns in person, either because news of their whereabouts has been known.
The reappearance of the spouse does not imply on its own that the marriage exists.
was dissolved based on the presumption of death, automatically resumes its legal validity.
In principle, the effects of the sentence that declared the dissolution of the marriage remain
yes.
However, it is anticipated that the ex-spouses may want to resume the situation.
previously for the revalidation of the marriage. This can only be revalidated under the conditions

provided for in No. 2 of Article 76, that is, as long as:

a) Neither spouse, nor the one who requested the declaration of presumed death,
neither the absent one has contracted a new marriage;

b) both request judicially the continuation of their marriage.

It is necessary, therefore, to verify the marital status.
immediately after the declaration of dissolution by death, and that both express
your will regarding the validation of the bond. According to this provision, the request
must be deducted with the court that declared the dissolution of the marriage with
based on the presumption of death.
 Judicially declared the continuity of the validity of the marriage, this is
considered for all purposes as not having been dissolved, c the decision of
validation has retroactive effects, operating ex tunc.
But it may happen that, before or after the return of the absent spouse, a
they have contracted a new marriage, or, in any case, both want to maintain
the dissolution of marriage.
In the first case, article 76, number 3 states that if either spouse has
entered into a new marriage, this will be considered valid.
This provision is nothing more than the direct application of the effects produced by the
judicial declaration of presumption of death, which constitutes one of the forms of dissolution
of the marriage.
It is, however, advisable to emphasize the distinction between this judicial process of

Dissolution of marriage is an administrative process, which is the responsibility of

civil registry offices, and what the process of death justification is.
There is no need to confuse the process of presumed death that is underway before the
court, and the justification of death, which is of an administrative nature.
The process of justifying death, like other administrative processes
justification is a process that is used when there is certainty that a certain
the fact occurred, but it cannot be proven by the means legally provided for in the Code
of the Civil Registry or in other legal provisions.
In the case of the death justification, there is certainty that death has occurred, but
the verification of the corpse is missing, as certified by the respective medical certificate.

The process of death justification is regulated by Decree 91/81 of the 25th of ...
November (D.R., L* Series, no. 277), which, in its articles 10 and following, regulates the
respective procedure.
The final decision rests with the National Department of Registries and Notaries
Ministry of Justice. If the applicant's request deserves approval, it is recorded.
respective death certificate—article 18.
In this case, the marriage will be dissolved by death, according to general legal terms.
Since, for the case that now interests us, that of the dissolution of marriage
by presumption of death, it is considered dissolved as the death of the
spouse and for this presumption to have been declared by a court sentence following the
specific terms, already mentioned, of article 77 of the Family Code.

Historical evolution of the concept of divorce

The concept of divorce can be expressed as the dissolution of the marital bond.
declared through legal means, operated during the life of the spouses. Generally, the doctrine defines

divorce as the dissolution of the marital bond, declared through judicial means and carried out
in the lives of the spouses. As we will see, among us divorce can be declared in certain
cases without court intervention.
Divorce arises when the marital life has deteriorated to such an extent that it
made it impossible to maintain the communion of material and spiritual life between husband and

woman.
Divorce operates to dissolve the bond for the future and brings an end to the relationships.

personal and property matters between spouses, which only remain relevant in cases
specifics, as it does not impose the obligation to provide alimony. However, it leaves intact
all legal effects produced during its validity.
Dissolved by law or marriage bond, the spouses are no longer married,
thus being able to enter into a new marriage.
The acceptance of the dissolution of marriage by divorce has not been peaceful, and
All those who advocate for the perpetuity of the bond have risen against her.
matrimonial.
However, if we delve into conducting a historical analysis on the
persistence of the acceptance or non-acceptance of divorce by various social means, a
once again we verify how the set of socioeconomic determinants reflects in the
family relationships.
In simple terms, we can say that divorce, as the factual dissolution of
marriage is as ancient as this, and has existed since the earliest times.
In Roman law, marriage was instituted, as we saw, based on affectio.
marital, that is, in the common purpose of the spouses wanting to maintain ties
lasting life together as husband and wife.
 The dissolution of marriage could occur when the will ceased to exist.
to maintain the marital bond. The divorce occurred, therefore, by unilateral action, repudiation,
which was the product of the will of only one spouse. Both the husband and the wife could
to terminate the marriage through repudiation, which did not require intervention from
a court to be valid.
Divorce was also admitted in ancient Germanic law. In ancient
A woman's will or repudiation was possible in the case of her infidelity.
Muslim law generally accepts the repudiation made by the husband regarding
to the woman with great amplitude. The husband can operate, thus, arbitrarily and without
appeal to the court, the dissolution of marriage. Divorce is also recognized in
Muslim law, as a judicial act, being the path afforded to women
to obtain the dissolution in certain cases of non-compliance with the obligations of marriage
of the marriage.
In countries with Protestant influence, the conception that began to drift away is that the

marriage had the perpetual nature of a sacrament and to face marriage as

subject to the competency of the State and not the Church.

Thus, the introduction of the ideas of the Protestant Reformation was accompanied by
from the beginning, by the acceptance of the dissolution of the marriage through divorce.

In predominantly Catholic countries, France was the first to recognize the

divorce, as a consequence of the contractual and secular conception of marriage.
The French Revolution established divorce at the end of the 18th century, in a law that
remained in effect until 1816, the date on which it ceased to be applied, to only be
reintroduced again into French legislation near the end of the 19th century.
In Portugal, where civil marriage was only introduced by the Civil Code of
1867, divorce is one of the first legislative measures taken after the implementation
of the Republic, by the Divorce Law, of November 3, 1910.
This law, with quite progressive and innovative aspects for its time, came
introduce divorce by mutual consent simultaneously with divorce
litigious.
 With the fall of the Republic and the implementation of fascism, family laws were
all reformulated, and the Concordat of August 1940 dictated the rule of resignation of the
right to divorce for spouses married in the Catholic Church after that date.
This Concordat was, however, amended by an additional protocol between Portugal and the
Holy See, in 1975, allowed the dissolution of marriages by divorce.
catholics, following the publication of Decree-Law No. 261/75.
In Angola, the so-called transitional government was then established,
established by the Alvor Agreements, which is why such a measure did not have an impact on the

Angolan internal legislation.

After the proclamation of Independence, Law No. 53/76 of 2 was published.
July, in whose preamble it is clearly stated that, being the People's Republic
Angola is a secular and non-confessional state, there was no reason for it to
a norm that prevented married spouses from remaining in effect in domestic law.
canonically to obtain a divorce.
As it was recognized, this standard resulted in situations of a nature
discrimination among citizens of the same country, and situations arose outside the law
civil for separated spouses and for children born from new unions of fact (see the
Preamble of Law No. 53/76.
In predominantly Catholic countries, such as Italy, it was necessary to proceed-
it was a national referendum, and it was the Law of December 1, 1970, that approved
the introduction of divorce in Italian law.
Brazilian law only came to recognize divorce through the Constitutional Amendment
No. 9 (June 1977), and even so, this was only granted judicially in
case of de facto separation of the spouses.
The Brazilian Civil Code in its article 1571-IV expressly provides for divorce.
due to the dissolution of marriage, which can be requested directly or by
conversion of judicial separation.
All secular states, on the other hand, uniformly accept divorce.
The greater or lesser liberalization of divorce is often linked to
social phenomena such as revolutions, like the French Revolution, which instituted
the divorce in countries of the type of Roman law, and the October Revolution of 1917, in
Russia, which opened the possibility for divorce to be declared by non-judicial bodies
judicial, greatly facilitating its terms.
The legislation of the countries of the socialist community was, in the early years, very
liberal in the dissolution of marriage by divorce. But, after World War II, the
then the Soviet Union felt the need to counterbalance the human bleed suffered,
through a greater consolidation of marriage, the need for
intervention of the courts in the generality of divorce proceedings.
Between the extremes that go from the legal prohibition of divorce to its declaration by

administrative bodies, we can situate the various legal systems according to their
broader the expansion or the restrictions on the legal grounds for the dissolution of marriage, the

which, in short, accompanies the very evolution of the institution of marriage.

The current concept of divorce

In Portugal, by Decree-Law no. 163/95, of July 13, the
divorce by mutual consent, through administrative means and by Law No. 47/98, of 10 of
August, it was allowed that he could be asked at any time, without the need for a lapse of time.

of mandatory deadline.
The meaning of the liberalization of divorce in Portugal became established with
the publication of Law No. 61/2008, of October 31, which introduced radical changes
in the whole institute of divorce.
The designation of contentious divorce has been changed to divorce without consent.
from the other spouse; the concept of fault in the decree of divorce has been dismissed. The request

divorce began to be based on objective causes, such as separation of

fact, the absence, the mental illness, whose term was reduced to 1 consecutive year and
still any other facts that, regardless of the guilt of the spouses, show the
definitive break of marriage (current wording of article 1781 of the Civil Code).
The subjective causes, dependent on guilt, exclusive or ...
predominant of one of the spouses (...). It does not mean that the marital duties do not
continue to deserve protection of the right (...) • The negligent violation of duties
conjugation no longer constitutes one of the foundations for the divorce action, for
to serve only as a basis for a civil liability action, aimed at
compensation for the injured spouse.
Important changes have also been introduced in Portuguese law.
divorce processes, introducing family mediation before the filing of
action, even if without mandatory character.
The provisions regarding divorce by mutual consent have been changed.
expanding the decision-making powers of the Civil Registry offices. They were expanded
the powers of decision and intervention of the Judge over the agreements made by the spouses.
If we compare the various legal systems, we see that the
divorce is today a reality for almost all of them, but there are differences in
way it is viewed. Some legal systems are more liberal, broadening the scope of
legal foundations of divorce and the procedural methods to obtain it, others less so
liberalizing, restricting it to typical cases provided for by law.
It is unanimously accepted by all States that preference should be given to the

stability of the family, because this favors the very structure of society and for
it is understood that divorce is an evil, although it is often recognized that it is a
unnecessary.
In general, we can distinguish two distinct systems regarding the causes.
invocable as grounds for divorce: those who accept the system of general cause
and those who accept the system of exhaustive causes.
The positioning of the law itself regarding divorce can, in terms
generally, classified into two different types.
On one hand, one who faces divorce as a "sanction" imposed on conduct
culpable of one of the spouses, violator of the conjugal duties. This conception comes
usually linked to the one who sees marriage as an institution.
More recently, the conception that sees divorce as prevails.
the 'remedy' or 'final solution' for a situation in which the marriage has ceased to
fill in the social and personal purposes for which it was established. In this case, the break of life
the marital discord between the spouses may have been caused by the culpable behavior of
one of them, or both, that is, for reasons stemming from the subjective will of the
spouses, or resulting from the prolongation of de facto separation for a certain period
of relevant time. But it can arise from a simple objective cause, independent of the
will of the spouses, such as the incurable dementia of one of them.
In the conception of divorce as a remedy, which is also referred to as divorce
"bankruptcy" or "recognition of rupture", all causes of dissolution are covered
of the marriage that make it unsustainable, either due to the fault of one of the parties
spouses or both, whether with or without fault of either.
What matters to verify is whether there was a breakdown of the marital bond and failure of
marriage. In this case, the dissolution of the divorce is limited to certifying that the union

marriage ceased to exist as a personal and social reality.

In the divorce system 'remedy, bankruptcy or recognition of breakdown', what
the important thing is that the court that declares the divorce has reached the conclusion that, through

fault of one of the spouses or due to objective causes (such as absence without news, the
dementia, de facto separation), has created a situation that prevents the continuation
of conjugal life.
There may be guilt, just as there may not be guilt on the part of the spouse against whom one is asking for the

divorce, but based on the divorce petition is the desire to remedy the situation
objectively created, which destroyed the foundations of the marital bond.
Divorce is, thus, the corollary of the fact that marriage has ceased to
to function as such, ceasing to serve the social purpose for which it was established. There is even

some say that divorce is nothing more than the 'death certificate' of a marriage that
ceased to be.
The previously existing Civil Code privileged the concept of divorce.
sanction, as this appeared as a punishment for the spouse who violated some of the duties
You conjugate. So much so that Article 1783 of the Civil Code imposed that the sentence
that declared the divorce or separation established which was the 'guilty' spouse and,
if it was concluded that both spouses were at fault, specify which spouse was the
principal culprit
As we have seen, Portuguese law underwent a radical turn and stopped
be oil or the criterion of fault in the decree of divorce.
 In fact, this way of looking at the right to divorce corresponds to a new
view of marital relationships increasingly predominant in many systems
legal.
In English law, divorce is permitted when based on verification by
court of the 'breakdown' (bankruptcy, collapse) of marriage, subsequently designating, by way of
exemplary, certain facts such as adultery, bad behavior of the other spouse,
abandonment, and de facto separation, which may justify the request.
Italian jurisprudence is moving towards the liberalization of divorce. It is understood
that marriage is celebrated with the consent of the parties and must last and only,
as long as this consensus persists. The right to separate is considered a right to
constitutional level. The subjective factor grants legitimacy 'the will to separate from
a single spouse well being the fracture may depend on the condition of disaffection and of

spiritual distancing of one of the parties." The Judge is recognized with a power
discretion in the valuation of facts susceptible to an ascetic and objective examination of
Common mode of feeling (objectivist thesis) or on the other hand, in the reflection of this

behavior regarding a single spouse (subjectivist thesis) (...) the society (of marriage) lives
and it only works while the common sentiment gives it body (...) >>.
In French law, divorce by prolonged separation of life was recognized.
common, that is, by separation in fact for six years, or by changes in faculties
mental health of a spouse, and the court may reject the request if there is
0 risk of divorce having serious consequences on the spouse's illness—arts.
237° and 238° of the French Civil Code.
Meanwhile, the Law of May 2004 was approved and came into effect in
January 1, 2005. This Law simplified the process of divorce by mutual agreement.
consent and in the contentious divorce provides for three types of divorce actions:
based on guilt, the definitive deterioration of the marital bond, and acceptance
of the request of the other spouse. The aim is for the spouses to be able to harmonize the conflict

post-marital finding agreements for the resolution of issues regarding your rights
personal and property. In this law, divorce by fault has almost ceased to have significance.
Then the causes of divorce stood out from the consequences in married life.
separation of fact for 2 years is a neutral ground for the request and in the divorce for
acceptance, the requested spouse comes to accept the other’s request acknowledging the bankruptcy

in marriage, what makes this type of action, in a divorce by semi-mutual

consent.
The Brazilian Civil Code came to consider itself as the basis for the request
of divorce the passage of 1 year on the conversion of the judicial separation sentence of
de facto separation or the course of 2 years of de facto separation—art. 1580.
Currently, the right of spouses is recognized when ending the relationship.
matrimonial when common coexistence became intolerable. The subjective reason for the
the intolerability of cohabitation can arise from both spouses or only from one of them
and can derive from visible external facts or be the result of emotional distancing and
spiritual between both.
It is understood that more important than the facts that occurred in the couple's life,
they are the consequences that these same facts had on their relationship making
intolerable common coexistence.

Concept of divorce in Angolan law

In Angolan law, from the very beginning, the right to divorce has been seen as
the result of a situation where the marital bond was proven to be destroyed in its
essence.
In fact, Law No. 53/76 published shortly after Independence introduced new
grounds for divorce, provided for in its article 6: separation in fact for five
consecutive years and the abandonment of the country by the other spouse. These grounds
point to the new conception of divorce as a remedy or a recognition of rupture.
Divorce is granted in the case of the rupture of the union.
matrimonial, regardless of the determination or even the existence of guilt
attribute to a spouse.
Corroborating this guidance, Resolution No. 2/82 of the People's Assembly states
clearly directed towards the new conception of divorce, by ordering
to draft new legislation on divorce, so that it would be granted when
the marriage had lost its meaning.
It is now interesting to define how divorce is viewed in the Family Code.
 The general principles that structure the right of any of the spouses to
requesting divorce, jointly or separately, is provided for in article 78.
Family Code.
It establishes as a basic conception that the divorce of the spouses can only arise
when there has been a complete and definitive deterioration of relations between both
conjugates, regardless of the causes that may have contributed to such deterioration.
The law requires that the relationships between both spouses be thoroughly investigated.

they are affected at the core of their structure, having ceased to exist the essential
specifically about marital relations.
In accordance, Article 78 requires that the checks be carried out simultaneously.
following conditions:
a) complete and irreparable deterioration of the principles on which the union is based
conjugal, encompassing all the causes that lead to the destruction of relationships
marriages that must be based on respect, fidelity, cooperation, and assistance
reciprocal material and moral;
b) that marriage "has lost its meaning," which means that the
marriage has been emptied of its personal and social content, becoming a
my formal link without the substantial content of a true "full communion"
of life," as prescribed by article 20 of the Family Code.
This expression 'to have lost its meaning' should therefore be understood in the sense of

that the marriage has been deprived of its legal purpose, which is the establishment of
family cell. It was the expression that was already recorded in Resolution No. 2/82 of
People's Assembly to which we have already referred, and which ordered that a review should take place

of the current legislation regarding family law, pointing out this situation, in the part
specifically concerning divorce, as the essence of its foundation.
This loss of meaning refers to inter-conjugal relationships, but also to the
reflections of this relationship in relation to the children and their repercussions in the environment

social.
We see that the concept of divorce embraced in the Family Code is what
corresponds to the divorce "remedy, bankruptcy or confirmation of rupture", as the emphasis
fundamental on which the divorce declaration and the consequent dissolution of
marriage is the realization that the full life union between the spouses has ceased and that
the relationship between husband and wife has deteriorated in a way that appears
irreversible.
Within this legal system of divorce conception, it can result in fact
or facts attributable to only one spouse, or facts attributable to both, or even have
arisen with or without the contest of the will of the spouses.
The notion of guilt as an element of valuing the action that violates duties
matrimonial and generates the right to request a divorce, which is inherent to the concept of
divorce sanction was removed from the Family Code.

[97]Grounds for divorce—generic cause

As we will see later, the Family Code for the decision of certain issues
specific, maintained the mention of grounds for divorce that serves for the assessment of
rights upon the dissolution of the conjugal bond, such as the right to alimony of the
couple and the assignment of the right to family residence.
The role of the judge in this legal system of general cause for divorce is much more
broad, having greater discretionary power. It is up to him to ascertain not only the cause or
the causes that are specifically invoked as a request for divorce, but also the
consequences that arise from it or them for the life of the spouses, so that it can
to conclude the marital bond is destroyed.
When the system of peremptory causes is in effect, as stipulated in the law
the exhaustive grounds for divorce (such as, for example, adultery, conviction
for the practice of a deliberate crime with a greater prison sentence, or other), once verified the
Because, the judge was usually required to grant the divorce, regardless of whether it was established if they...

they made the maintenance of the marital bond impossible.

In the system of generic cause, the basis for divorce is based on the fact that one
recognize the definitive deterioration of the bond.
The conception of divorce as a remedy, failure, or acknowledgment of a breakdown prevails,

for the generic triggering cause of the right to divorce is fundamentally the
recognition of the irretrievable breakdown of the marriage. In other words, there is no
in this system a enumeration, described and exhaustive, of the foundations on which it is
you can base the divorce petition, as the only generic cause consists of failure
definitive and in the irreparable break of the bond.
In the system adopted in the Family Code, we can state that
the system of generic cause predominates, which can be invoked by common initiative
of the spouses in the modality that we will see later of the divorce by mutual consent, or that
it can be invoked by one of the spouses against the other in the case of a contentious divorce.

This conception prevented the Family Code from indicating exhaustive grounds.
of divorce. These are stated in the law as merely exemplary.
indicating initially situations that may serve as the basis for the declaration of divorce and
that are no more than the typification of certain situations of a lasting nature that can
lead to the dissolution of the marriage by divorce. As we have already mentioned, we are facing

blank norms that the judge, interpreter of the law, will apply concretely to the case below
judge.
The Angolan law was thus a pioneer in the conception of divorce based on cause.
generic and not the failure of the marital bond because it invokes solely the existence of a
cause that deteriorated marital relationships, omitting the attribution of "blame" when deciding
the end of the marriage between the spouses.
It is necessary to recognize, however, that when the causes of divorce are invoked in the

litigious divorce actions, the Family Code is still at a level

intermediate acceptance of divorce in light of current trends in the liberalization of law
to the divorce that was mentioned earlier.
The causes of divorce accepted in the Family Code can also be classified.
in causes of a subjective nature and causes of an objective nature. The former are those that
they derive from a specific personal conduct, conscious and voluntary of one of the
spouses; the second ones refer to concrete verifiable facts in themselves,
with its own reality.

Legal nature of the right to divorce

The right to divorce is characterized first and foremost by being a simple
legal college. As a college, the law leaves to the holder of the right to divorce the
the decision to want or not to use this right, and for this reason it can be concluded that
no one is obliged to exercise it.
The faculties reflect the interest of the holder, they do not have a specific object and
they have before them merely passive subjects with obligations without rights. Even if
if certain facts that may constitute legal grounds are verified in a particular couple
to declare the divorce, it does not become mandatory for it to take place.
On the contrary, the experience of family life shows that, of the numerous conflicts
conjugations that occur, only some of them will produce the extreme effect of dissolution of
link by divorce.
The right to divorce is also characterized as a potestative right, which
it implies that it can be exercised independently of the will of the other spouse.
The spouse entitled to the right to divorce, if they wish to obtain it, must express this
will in the competent legal action. Obtained the judicial confirmation that the
the invoked foundations exist, a judicial sentence is rendered declaring, based on
in them, the dissolution of marriage by divorce.
The other spouse, contrary to a widely held misunderstanding,
it is not about granting or not granting the divorce, but rather enduring the legal effects
that will arise from the exercise of the right to divorce by the other spouse.
The right to divorce is not a subjective right in its strict sense, as it is not
will require the other spouse to take certain positive actions, but will instead produce effects on

legal sphere of both spouses and independently of the will of one of them.
The potestative right is defined as that which ensures a certain
legal effect, which in the case of divorce is the alteration of the family legal situation, or
thus, the termination of the bond. It is, therefore, a right that will result not in provision

negative or positive by the spouse against whom the action is filed, but in the
obtaining the judicial declaration of the dissolution of marriage.
As a right embedded in family legal relations, it is a right of nature
Guys, because your exercise refers to the person or people of the spouse(s). There is even
who designates it as a "personal right", which even prevents that
either spouse may be represented in the divorce action by a
third, voluntary representative. It is an inalienable right, and cannot be
the spouses make any declaration of waiver of the right to in advance
divorce, whether this renunciation is made in a generic way or in a specific manner,
previously waiving the right to divorce, for this or that legal basis.
The inalienable nature of the right itself does not prevent, in concrete terms, the spouse

who could exercise their right to divorce choose not to exercise it or to give it up, in
terms of the process law, of the divorce action that has been initiated.
Divorce actions, like other actions concerning personal status, have repercussions on
marital status of individuals cannot be the subject of confession or judicial transaction, but
merely withdrawal—Article 299, paragraphs 1 and 2 of the Code of Civil Procedure.
It is worth noting that in some legal systems confession is permitted.
as a means of proof. In French law since 1975, it became possible to accept
the facts as the other spouse described them in their "memoir" (report), having the
The 2004 law simplified this procedure as it confined the request to the fact of
both agree that the marriage 'failed'.
The right to divorce cannot be transferable to third parties, whether inter vivos or
by reason of death.

It means that it can only be exercised by the spouse himself and not
transmitted by death. In fact, the right to divorce ceases with the death of the
headline.
Also in our law, the divorce action cannot be exercised through
mandate granted to a third party, and only in the case of interdiction can it be exercised by the
legal representative of the interdicted, in accordance with the provisions for the powers to take action

contained in article 238, paragraph c) of the Family Code.

In the already revoked Civil Code, the legal representative of the interdicted needed the

authorization from the Family Council to file for divorce—art. 1781.

of the cited Code.
In the Family Code, there is no specific rule regarding the divorce action.
for which the general rules regarding the guardianship of adults apply. According to what
Article 238, item c) of the Family Code states that the guardian can only file actions in
court with authorization from this.
 In current Portuguese law, the divorce action does not extinguish with the death of the

spouse, for his heirs can proceed in her, whether he was the author or the defendant.
Such position is fully justified, since the spouse has the status of heir.
Regarding the other spouse, the divorce declaration has property effects,
specifically because it may involve the loss of the quality of being susceptible.

Types of divorce - divorce by mutual agreement.

The conception of the right to divorce will also be reflected in the fact that the legislator

to accept only one form of divorce (contentious divorce) in the legal system or
accept two forms (contentious divorce and divorce by mutual consent or by
mutual agreement). This last form of divorce is more liberalizing and allows for choice
in the freedom of will of the decision to dissolve the marriage.
The Family Code, following what has already been introduced into the legal system
Angolan with the publication of Law No. 9/78, of May 26, allows for both modalities.
of divorce. According to Article 79 of the Family Code, divorce can be requested:
a) by both spouses on the basis of mutual agreement;
b) for only one of the spouses based on the grounds provided for in this law.
In the first case, we are faced with a bilateral resolution made
specifically by both spouses, which is invoked as the basis for
divorce.
In the case of contentious divorce, the action is initiated by one of the spouses based on

in the generic case, but specifically invoking the cause or causes that lead to request the
dissolution of the bond. The spouse who initiates the litigation has the burden of proof of
facts to argue and also the consequences they had on married life.
In a mutual consent divorce, the law already allows spouses to deliberate on
common and decide to jointly request that the divorce be declared. Neither the legislator
therefore the court requires that the spouses justify their decision
common invoking this or that cause. The underlying reasons are not revealed that
They led the spouses to make such an important resolution about their common life.
 This form of divorce by mutual consent is called in doctrine divorce by
mutual dissent, since the agreement that is required is that they no longer wish to continue

married.
The law starts from the presumption that if the spouses request the dissolution of the marriage

by mutual agreement, it is because they mutually acknowledge that their marital union is
irremediably compromised, and, therefore, the best solution
therapy will involve recognizing the failure of the marriage and promoting its declaration
dissolution.
Ultimately, the acceptance of divorce by mutual consent involves, in understanding of

some, a contractualist conception of marriage, since, ultimately, what is

allows the marriage to be resolved by mutual agreement of the parties, just as it can
to happen with any other contract.
There are also those who see mutual consent divorce as a form of divorce by
mutual repudiation between husband and wife.
The truth is that, even in a divorce by mutual agreement, there are always causes.
justifications that are decisive in the decision made by the spouses. Only that the law
does not require that these causes be invoked to support the decision made. The law
understands that it is better not to investigate them, for recognizing the spouses' maturity to

we will take or not take this resolution.

In fact, divorce by mutual agreement is a way to desanitize the
divorce, making it less traumatic for the spouses and also, indirectly,
for the children and other family members.
This form of divorce proves to be more beneficial in the relationship of the spouses.
after the divorce, for preventing degrading accusations from being made from one to the other
other, hardly recoverable.
The Family Code regulates the type of divorce by mutual consent in its
Articles 83 to 96. The basis of divorce by mutual consent is based on 'the deliberation
common and personal to the spouses to end the marital life"—art. 84.° of the Code
of Family.
 The exercise of the right to divorce by mutual consent is conditioned by law.
To prevent resolutions of a hasty or immature nature, they are imposed
conditionalities in the law regarding the duration of marriage and the age of the spouses.
The legal requirements for the request for divorce by mutual agreement come
expressed in Article 83 of the Family Code, and they are:
a) that the marriage took place more than three years ago;
b) that both spouses have completed 21 years of age.
In Law No. 9/78, of May 26, the minimum age required for spouses was 22.
years (art. 19). It was Law No. 9/78 that introduced the important change to the law
previously, allowing that, in certain cases, divorce by mutual consent could be declared
by the Civil Registry Offices (art. 4).
The Family Code has taken this position again, allowing that, in addition to the judicial process,

the divorce by mutual consent can be declared by the civil registry authority of the area of
residence of either spouse (art. 86).
Article 87 of the Code restricts the competence of the Registry Conservatories
Civil in cases where:
a) the couple does not have minor children;

b) having minor children, there shall be a final decision regarding the

regulation of
paternal authority granted by the competent court.
Thus, it is possible to use the administrative route for the declaration of divorce.
when the right to exercise parental authority over the children is not in dispute
minor children of the couple. Due to the sensitivity and delicacy of the issue, precautions needed to be taken.

your knowledge by the competent court, which is today the Family Court of the Tribunal
Provincial.
Just the simple appreciation of verifying the legal assumptions related to age
of the spouses and the duration of the marriage—that allow the declaration of divorce by
mutual agreement—clearly within the reach of the civil registry officer.
It must be taken into account, therefore, that according to the law, divorce by mutual agreement can

it is always requested through the judicial route and that the administrative route is only possible in cases

specified by law.
 Regarding the procedural procedure, the Code requires not only that the spouses
express your agreement in the initial request regarding the request for a declaration of
divorce, but still presenting the complementary agreements—art. 85 of the Code
of Family.
As we will see later, the dissolution of marriage will produce various
effects on the personal and property sphere of the spouses. It is not enough, therefore, that the

spouses agree regarding the divorce; it is also necessary that they

we amicably resolve the issues arising from the divorce, the issues of a nature
personal and property resulting from the dissolution of marriage.
In these terms, article 85 of the Family Code imposes that spouses
present the agreements regarding:

a) Exercise of parental authority over the couple's minor children, if the

there is, unless such has not been decided by the court;
b) Alimony payment to the spouse in need of it;
c) Attribution of family residence.
Moreover, in compliance with Article 89, paragraph a), the spouses also have the
obligation to present the specified list of all your own and common assets,
what implies the existence of a prior agreement on the description and attribution of assets, or
to the couple in common, or specific to each of the spouses.
As for the procedural procedure described in articles 90 and following, there is a need to

emphasize the mandatory presence of spouses at the conference—art. 91.

The court will seek to obtain the reconciliation of the spouses, and must take steps to do so.

sense of them giving up the purpose of divorcing—art. 93.°. If not

to obtain, must proceed to the assessment of the complementary agreements presented.
Regarding the approval or rejection of the agreement on the exercise of authority
paternal, it is necessary to apply the general regime of art. 109, no. 1, by virtue of no. 3 of the cited

Article 93.
Before ratifying the agreement, the court must comply with the provisions of
article 158.° and collect the opinion of the Public Ministry and promote the hearing of the minor

who has completed 10 years of age.

 The provisional divorce is then declared, which will be converted into divorce.
definitively if, within 90 days, neither party withdraws the request.
Once the divorce is granted, the court's decision is officially communicated to the authorities.

of the civil registry that have celebrated the marriage and those where it has been recorded
the birth certificates of the spouses.
The procedure before the Civil Registry Office is similar since the
arts. 93 and following apply to both judicial and administrative processes.
administrative proceedings before the civil registry authority
The Conservator must promote the reconciliation of the spouses just like the judge, and,
if you cannot do it, you should proceed with the process, ratify the agreements if applicable
of this, and declare the provisional divorce. The declaration of the definitive divorce and the

communications to the other civil registry bodies also follow what is stated in
Articles 95 and 96 of the Family Code.

The contentious divorce; foundations as an illustrative example

The contentious divorce, as provided for in Article 79 of the Code of
Family is that which is requested by only one of the spouses, based on the grounds
provided for in this law. The contentious divorce action is proposed solely by one spouse
against the other person's, with the one bringing the action having to invoke the existence of a

cause.
The principles provided for in the law are included in the general provision of
art. 78.°, which covers the generic cause that will lead to the dissolution of the bond, that is,
to the complete and irreparable deterioration of your union, and the loss of meaning or
purpose of marriage.
This generic provision is integrated, regarding contentious divorce, by Article 97.
that transcribes, specifying that this form of divorce is legally possible when
be committed to the communion of life of the two spouses and be made impossible
realization of the social ends of marriage.
The facts invoked as the basis for the divorce must be subsequent to
wedding celebration, as the previous facts, when provided for by law, may only
to be invoked as grounds for the annulment of the marriage.
 In contentious divorce, the grounds are those contained in Articles 97 and
98.°, which are nothing more than two complementary provisions.
Article 97 states that the basis for the contentious divorce request is that
there is a serious or lasting cause that has affected and threatened the communion of
life of the spouses and make the achievement of the social purposes of marriage impossible. This
the cause can be, alternatively, either serious or lasting.
According to this provision, the generic cause has a wide scope, as
the legislator preferred not to enumerate, case by case, the legal grounds for the request for

contentious divorce. The cause, as it is said in legal terms, can exist both for reason
from the production of a single fact that should be considered serious, as a result of a
repeated situation that, due to its continuity and reiteration, comes to destroy the structure
of marital bond.
A serious offense can be adultery, the assault against the life of another spouse,
etc..
A lasting fact may consist of the fact that the spouses no longer address each other.
the word or stop maintaining normal spousal relations for a long period
of time, for example.
There may, therefore, be a single fact that is so serious that it makes
impossible to continue living together, but it may also be verified that a
accumulation of facts that leads to the same result.
The reiteration of small acts of physical or verbal violence, the unjustified refusal
Having sexual relations, the coldness in the emotional relationship, can make it intolerable.
marital cohabitation can be a reason for requesting a divorce.
According to the conception of the Code, it must be verified by the spouse against
who proposes the action of a contested divorce, the violation of a serious or lasting form
of duties imposed by marriage, a violation that can translate, for example, into
refusal by one of the spouses to consummate the marriage, in violation of the duties
statements in the law of fidelity, respect, cohabitation, cooperation and
moral or material assistance.
 The serious or lasting nature of the invoked fact must be assessed and given
as verified by the judge of the case, always taking into account the conditions to which it is subject

refers to article 99 of the

Family Code. That is, when assessing the gravity and importance of the fact for the
The lives of the spouses, the judge must consider their cultural background, as certain
expression among people of rudimentary culture may not translate into offense, and be
highly insulting among people of a different cultural level.
In the same line of thought, it is mandated to attend to "the formation of the spouses, to

degree of education and the moral sensitivity of the spouses." The relevance of the foundation

invoked is not, therefore, uniform for all cases. They must be assessed as a whole
all the circumstances of married life and the persons of the spouses that are relevant to
the decision to be issued by the court.
Within the circumstances that the court must consider to declare or not the
Divorce also includes issues such as the duration of the marriage, the age of the
spouses, their health status, etc.
Article 97 requires that a serious cause is also necessary for the declaration of contentious divorce.

or long-lasting has produced the negative effects on the marital union stated
in the final part of this article and which are, ultimately, the same as those contained
in the already cited article 78.

Article 98, which contains merely illustrative wording, is limited to

indicate factual situations that, if verified, allow the conclusion that it is
committed to the communion of life of the spouses and hindered the achievement of the ends
socials of the wedding.
In other words, the predictions of article 98 are all related to causes.
of a lasting nature that reflect on the marital structure and lead to
a contested divorce may be requested.
Serious or lasting cause invoked as the basis for the divorce request
presupposes, as the expression indicates, the existence of material flows that a spouse
can be invoked against the other. These material facts, therefore, constitute the cause of action
in the contentious divorce action.
 The invoked facts can be of a subjective or objective nature.
If it is a subjective fact, it must consist of an unlawful act that violates
some of the marital duties.
The fact must be legally attributable to the spouse against whom the action is directed.
proposal. It is the spouse who brings the action and bears the burden of proving the facts that are included

the cause or causes and also the consequences of the invoked facts.
The unlawful conduct, because it violates the rights of the other spouse, must be
to materialize in the form of intent or negligence, which means that it must be reported
acts committed with awareness and intention.
The concepts accepted in criminal law doctrine apply here regarding the
the typification of the agent's conduct as an integrating element of the criminal offense.

The integrating facts of the serious or lasting cause must be practiced by the
spouse against whom the action is proposed, consciously and voluntarily, which implies
that the concept of accountability of the errant spouse is also necessary here.
It must be understood, however, that it is not always necessary for the spouse who commits

the act being in full use of its mental faculties, as it can be performed in a state
of intoxication, in a drugged state, etc. But if the spouse contributed
voluntarily to put themselves in such a situation, is equally responsible for having created the
psychic state determining your conduct.
The spouse who initiates the contentious divorce action must also prove that
among the reasons it invokes to substantiate its request for divorce and the destruction of
the marital bond has a causal link, that is, it was they who
they unleashed the generic cause that consists of the irremediable destruction or rupture of
marital bond.
What reality shows us is that the deterioration of married life does not occur
as a rule abruptly, and that it is produced by a sum of facts, in style
of seismic responses that, reciprocally, grow in a crescendo that,
when it is not timely controlled and dominated, it will undermine the foundations of
marital union.
As we have already mentioned, the Family Code did not adopt the system of
taxative causes of divorce as established by the Civil Code. This, in its art. 1778.
it indicated that, as a basis for contentious separation, the provisions applicable to divorce were
by virtue of article 1792, the following facts:
a) adultery of the other spouse;
b) contraceptive practices or sexual aberration exercised against will
from the applicant;

c) definitive conviction of the other spouse for a willful crime, with a prison sentence
superior to two years, whatever the nature of this;
d) definitive conviction for the crime of pimping or for intentional homicide, in
certain conditions;
e) dishonorable life and habits of the other spouse;
f) complete abandonment of the marital home by the other spouse for a period of time

superior to
three years;
g) any fact that seriously offended the physical or moral integrity of
applicant.
Some of these facts are, in reality, the ones that are most frequently
invoked as the basis for the contested divorce request, and hence there is interest
to define some of their respective outlines. Let us see, by way of example, what the
facts that can integrate these grounds that can be invoked in court. Using the
classification of causes provided for in Article 97 of the Family Code, we mention
some that can be pointed out as serious.
Adultery
It consists of the consummation of sexual relations of one spouse with a third person,

practiced by voluntary act. Therefore, for the configuration of adultery to be necessary

that both elements, the objective and the subjective, are verified simultaneously. It is
It is necessary, on the one hand, that the act of intercourse is verified, and practices alone are not enough.

libidinous behaviors, or simple dating. These behaviors may integrate, as we will see, a
serious insult against the other spouse. It is necessary that the sexual act be committed
voluntarily by the errant spouse, since if it results from physical coercion, as in the case
of the violation, or if it is kept in a state of unconsciousness or by mistake, it is not prefigured

the adultery.
 Adultery constitutes a civil illicit act, and it can lead to consequences for the spouse.
offended the right to compensation for non-material damages. In the case of adultery
occur during the cohabitation of the spouses, the current Penal Code considered
the crime. As we have already seen, this provision was changed by the Law of November 3, 1910,
in your art. 61.°. Nowadays, the majority of laws in various countries have ceased to consider
adultery as a crime.
It is still debated whether the concept of adultery should only foresee the act.
of sexual relations between people of different sexes or if it should encompass
similarly, sexual relations between people of the same sex. Considering that the
sexual relationship maintained either with people of a different sex or of the same sex
it involves lascivious practices of an intimate nature, the trend is to encompass these
latest in the practice of adultery.
B—Life and disgraceful habits It is considered that we are facing an injury
indirectness made by one spouse to the other. It is a behavior that should translate into
lifestyle habits that are ingrained and involve the moral and social degradation of
spouse who practices it and that will reflect on the other spouse's person. It may
to indicate as an example the fact that the spouse is an addict to drug use or
of alcohol, living by begging, habitually engaging in gambling,
etc.
It is not enough to have an isolated censurable practice, as it is necessary to have a way of life that

involves the moral disqualification of the spouse who has dishonorable conduct. The spouse
offended as a result of the behavior of the other spouse feels impacted in their
own dignity, due to the social environment in which the spouses live despising and
to discredit the other spouse due to their shameful or immoral behavior
prevaricator.
C—Complete abandonment of the marital home

This foundation was invoked very frequently during the validity of the Code.
Civil, which did not allow divorce by simple de facto separation, now has much
less relevance. It is a complex legal figure that encompasses various elements.
of an objective and subjective nature. For its verification, it is important to verify the
following elements:
 free and spontaneous exit from the marital home;
—made without the consent of the other spouse;
made with the purpose of breaking the communion of life;

the uninterrupted course of the legal deadline, which, according to item f) of article 1778.

of the Civil Code, it was three years.

The conjugal home is the common and own residence of the spouses. If the spouses
they live at relatives' house, it is understood that the marital home has not been established.
The departure from home must be initiated by the one leaving, and it is essential that this departure does not involve

any blame on the part of the other spouse. If the spouse provokes this departure, expelling
to do to the other spouse, or making common life unsustainable, is no longer configured
the abandonment by the spouse who deserts the marital home. The abandonment also does not
it is verified when the output of the home resulted according to the agreement established between both

spouses, an agreement that can be explicit or implicit.

When one of the spouses leaves home with the intention of coming back, taking
Subsequent to the decision not to return to normal life, the abandonment begins from
from the date on which the spouse expresses the intention not to resume their common life.

The same happens when the exit from the marital home is made by the spouse.
with the intention of ending the communion of life and not resuming married life,
for this purpose, as an integrating element of the concept of abandonment, must be
concomitant with the fact of leaving the home for the purpose of counting, from then on,
expected deadline in the law for de facto separation.
It is still necessary to distinguish between abandonment of the home and the absence of the other spouse.

of them having news. Leaving home is characterized, since its beginning, by the
elements that we indicate, while absence is defined as the lack of knowledge
on the whereabouts of the other spouse, accompanied by the lack of news.
D—Serious offenses against physical or moral integrity

This provision of the law is generic in nature and covers a wide range of acts.
offensive, which can be of a physical nature (in the previous divorce law called-
(the servitudes), or of a moral nature (in the same law were referred to as injuries). The
offenses to moral integrity constitute slanders, taken in this broad sense,
the offenses, according to the law, must be considered serious.
The offenses committed before marriage, even if the spouse is only a result of them.
after its celebration, are not relevant, since they did not aim
someone who had the legal status of spouse.
They must still target the person of the spouse directly, although it is not
it is necessary that they are pronounced in the presence of the other spouse.

These practices, namely physical violence, psychological violence and

sexual violence is today classified as a crime and is part of the crime of violence
domestic, altering the previous situation that silenced these behaviors that were occurring in
interior of conjugal life, attributing to it only relevance as a foundation in
request for dissolution of the marital bond. The offense directed at close relatives of
Another spouse can, according to some, constitute indirect offense. 2. Offenses against integrity
moral

They can be constituted by psychological violence such as threats and coercion, or by

insults directed at the other spouse, which can be uttered in their presence or
of a third party who brings its content to the knowledge of the offended spouse.
They must also be made with the intention of offending the other spouse,
that is, with the intention to injure.

Fundamentally, they can be presented in three different types:

Verbal insults, which consist of expressions spoken or written by the
other spouse;
—slanderous accusation, which consists of attributing to the other spouse a

undignified procedure;
real injuries, which consist of a behavior of the other spouse in itself
even offensive to the moral integrity of the offended spouse.
In this legal type of divorce grounds, it is very important to consider
carefully the specific circumstances of each case, the objective severity of the offense, the
behavior of the offended spouse, the level of preparation, language habits and
other elements that will determine the greater or lesser severity to be attributed to the offense.
It has to deeply resonate in the personal relationships of the spouses, in a way
that the common life is effectively compromised.
The Family Code, in line with what had already been initiated by Law No. 53/76,
it came to indicate certain objective causes for divorce (art. 89, letters a), b),
c) and d)), which refer, as we have seen, to facts that extend over time and are
of lasting nature.
E—The de facto separation for three years
In this basis provided for in article 98, paragraph a), there is no need to pay attention to the

circumstances or reasons that led the spouses to separation. It doesn't even matter.
to know whether it was initiated or not by agreement of both spouses. Hence, there is no need for

taking into account the intention to end the common life, as required for abandonment
of the sea.

The factual separation translates into the violation, by both spouses, of the duty of
cohabitation, and its continuity over time demonstrates the will of the spouses to cut
of marital relations. A temporary suspension of marital cohabitation is not enough.
in which common relationships and interests are maintained, and which as we have seen can be motivated

for acceptable reasons, such as the professional activity of one of the spouses, the
the necessity of your professional training, health reasons, etc. To establish this
the law requires a foundation:

the separation of spouses for a minimum of three years, with suspension

total and complete of all personal relationships between the spouses as such;
that the time of separation has passed continuously and uninterrupted.

The fact that the spouses maintain contact due to the interests of the children or
the common interests, or for reasons of property relations, do not suspend the course
of the deadline. But it is interrupted by the resumption of personal relationships,
even if cohabitation has not been resumed. The mere fact of separation is in itself
an anomalous situation in marriage, before which the law does not remain indifferent, seeing
a basis for the divorce request.
 F—Abandonment of the country by the other spouse
This foundation was introduced by Law No. 53/76, and is now included in Article 98.
paragraph b) of the Family Code. It arose due to the exodus that occurred in
Country, at the time of the departure of hundreds of thousands of people at the end of colonization. From

this phenomenon resulted in the separation of numerous couples, as it was one of the
spouses decide to leave the country and the other choose to stay, making
impossible to continue the marital life.
The constitutive elements of this foundation are:
that one of the spouses has left the country;
—that he did it with the purpose of not returning;
—that the exit was made without the consent of the other spouse. G—A
absence of the spouse
This foundation of divorce was already included in the Divorce Law of 1910, even though
expecting a longer absence period, as mentioned in article 98, item c) of the
Family Code. Absence is distinguished from the presumption of death. As we have already said,
in this case there are strong indications that the death occurred, whereas in the absence
What happens is that the other spouse is missing and there is no news of him.
What characterizes absence is that the absent person is not only in a distant place (which is

unknown), but there is also no news from him, either because he does not want to give it or
for not being able to give them.

The spouse who invokes the absence must allege and prove that they have no any
news about the other spouse and that they do not know of anyone who gives them news

delete. This state of absence must extend for a minimum period of three
years, so that if the absent person returns in the meantime or simply gives news, the deadline
expired becomes ineffective.
The absence is distinguished from de facto separation, as in this case the spouses
they have the right whereabouts.

H—Spouse's dementia
Article 98, paragraph d) provides as a ground for divorce the change of
mental faculties of the other spouse, provided that it is clinically verified. The law imposes

what:
 a) the psychic alteration is profound;
b) that lasts more than three years;
c) that by its gravity compromises the possibility of living together.
The law requires that the illness be so severe that it prevents the spouse from
a normal life, taking him in fact, a person incapable of social interaction
matrimonial. Although there are those who criticize allowing the acquisition of divorce in
the reason for a mental illness that her spouse is bearing is not to blame, the truth
it was deemed unfair that the spouse would have to maintain, against their will,
for a bond with someone who could no longer exercise their rights and duties
you conjugate.
In the case of obtaining a divorce on this basis, it should, in principle, be maintained-
the duty of assistance to the sick spouse, whom the other spouse will be obliged to
provide food.
1—Relevance of the fundamentals
The spouse who files for a contested divorce still has the burden of proving the
relevance of the invoked foundations in marital life, taking into account the parameters
Article 99 of the Family Code (the formation of the spouses, their level of education,
moral sensitivity and all other circumstances inherent to the specific case.

Legitimacy in contentious divorce action and suspension of the right to sue

When we mention that the right to divorce is of a personal nature, we wanted
It is worth emphasizing that it can only be exercised by the spouse who holds the right, or
in the case of him being incapacitated, by his legal representative, duly authorized by
tribunal, and after hearing the Family Council.
The legitimacy for filing for divorce is correlated with the
cause that is invoked as a basis.
If it is about subjective causes (those that translate into the violation of
spousal duties by the other spouse), only has the legitimacy to file the action
the spouse offended by these violations. This means that it is the injured spouse in their
marital rights that can initiate action against the spouse who infringed upon them
duties.
 If the divorce is based on an objective cause, such as that of
separation of fact, either of the spouses indistinctly has the legitimacy to the
proposed action. It is a right of a bilateral nature, of the exercise of a
the potestative right that does not originate from any illicit act committed by the other
spouse.
If the spouse against whom the action is brought does not contest, the spouse who...
the party that proposed the action shall bear the burden of the judicial costs—art. 449, nos. 1 and 2,

subsection a), of the Code of Civil Procedure.

If the abandonment of the country by the other spouse has been invoked, it should be understood
I know that the divorce can only be requested by the spouse who did not leave the country and who is under

jurisdiction of Angolan courts.

The same, obviously, in the case of absence. In the case of dementia, it is the spouse.

not sick who can invoke the illness, as it is an objective cause not attributable to
any of the spouses.
Legitimacy is related to determining what the action or omission was.
voluntary that originated the crisis situation in the marital relations, and who had the conduct
the spouse cannot invoke it to obtain the dissolution of the bond.
victim of this conduct that can be invoked as grounds in the divorce proceedings.
As we have already mentioned regarding the personal nature of the right to divorce,
it is not transmissible to the heirs of the spouse, so the death of one of them, whether
Author or Defendant, leads to the action ending ipso facto, since death produces, by itself
only the dissolution of the marriage.

The right to exercise a contentious divorce action by the husband may be

suspense in the case of a woman's pregnancy.
The Family Code introduced this legislative innovation regarding the exercise of
the right to divorce in its article 103. This provision prevents the husband from proposing
divorce action against the woman during the entire period of the woman's pregnancy, and even
that a year has passed since the birth.
This regulation aims to protect women during pregnancy or recent childbirth and
that, along with the responsibilities of motherhood, still finds itself struggling with the situation

difficult that the divorce always entails for both spouses.

 It seeks to spare the woman in a state of gestation or in period of
breastfeeding, having to face a contentious divorce lawsuit with the inherent
consequences of psychological and family disturbances that it entails.
Experience shows how frequent were the divorce actions proposed by
husband despite the woman's state of pregnancy.
The legal provision, however, excepts two cases in which the husband can, even
under these circumstances, exercising your right to divorce.
The first case is that of a woman giving her consent to the action, or in some way
express, before your proposal, or implicitly, not raising your right to
request the suspension of the instance.

The second case refers to the fact that the husband challenges the paternity of the
son. In either situation, the action can be filed and continued, as the law
previously, on one hand, it may be the woman who is interested in the dissolution of her
marriage by divorce, regardless of her state of pregnancy or postpartum, and
admitted, on the other hand, that one should defend the husband's interest when he
he intended to remove the legal presumption of his paternity.
It is, however, as can be seen, merely a legal suspension of the exercise of a
right, which does not affect your livelihood.

Article 103, paragraph 2 clarifies how the expiry period is counted.

right to divorce provided for in article 102, in the case of suspension of the exercise of the right
to divorce due to the husband's incapacity, according to paragraph 1 of this article.

In the presence of a legal cause for suspension, the expiration period is also interrupted.

for the exact period that the suspension lasts.

Causes of extinction of the right to divorce A—Instigation

The instigation occurs when the wrongful conduct of the spouse arises from
deliberate behavior of the other. In this way, although facts are verified
that could constitute legal grounds for divorce due to violation of spousal duties,
It happens that they resulted from instigation or provocation by the other. We are
in the face of justifying causes, or causes of exclusion of unlawfulness, therefore the
the spouse's behavior ceases to be unlawful, due to the behavior that, in
regarding this absence, there was the other spouse.

In the offenses committed by one spouse against the other, given the strict nature of
the conjugal society, which has its own unity, is sometimes very difficult to dissociate
the conduct of one spouse from the conduct of the other, and also determine in each case when
the behavior of one spouse had a decisive influence on the behavior of the other.
If, for example, one of the spouses behaves unworthily towards the other,
the offended spouse may, under emotional distress, utter expressions
offensive against what has transgressed.

If one of the spouses commits adultery, because it has been prompted by advice or
the request of the other, the spouse who instigated the other to commit the wrongdoing, cannot come
invoke it against the defaulter.
Article 100 of the Family Code excludes the right to obtain a divorce for
the spouse who has instigated the other to commit the fact invoked as
foundation of the request, or who has intentionally created conditions conducive to it
verification.
This provision not only anticipates direct incitement to the practice of an act, but
also the voluntary, intentional creation of circumstances that, under normal conditions,
would presumably lead to the unlawful act. This provision derives from what was already included in

Article 1780, paragraph a) of the revoked Civil Code.

Due to it, there is no longer the right to divorce, whether when one of the
spouses can be considered morally complicit with each other, or when one spouse,
by your conduct, you have created conditions for the reaction of the other spouse, or have
encouraged by your unlawful conduct.
Constituting an exception matter, in a divorce action, the proof of facts
invoked must be made by the Defendant who invokes them or by the Plaintiff in case of a response
to the counterclaim—Art. 342, n. 2 of the Civil Code
B—The forgiveness and reconciliation

The Family Code (art. 101) refers to the cause of the loss of the right to
divorce, that is, as an extinguishing cause of this right, the forgiveness of the offended spouse.
 The same provision existed in paragraph b) of article 1780 of the Civil Code.

Forgiveness is a unilateral legal act that falls within the scope of will.
holder of the right to divorce. The spouse may freely consider that they prefer
forget the offense and maintain married life with the other spouse.
The forgiveness of the offended spouse is revealed by their behavior afterwards
knowledge of the offense committed by the other spouse, and it can take the form of
express or implied.
Forgiveness must be the product of a clear expression of will and
uncontroversial, and cannot constitute a pure and simple fact emanating from the will of
one of the spouses independent of the behavior of the other.
In fact, as a rule, the spouse who grants forgiveness regarding
determined fact takes this attitude in the expectation of changing behavior of the
other spouse, and does not in any way constitute the 'letter of manumission' for which the
spouse who has committed wrongdoing may continue to commit new offenses.

Forgiveness can be granted on the condition that the guilty spouse does not relapse.
The spouse who grants forgiveness must require assurance and security that the other does not
he/she goes back to wrongdoing.

Forgiveness must be proven by conclusive facts and its existence does not
assume. Thus, the fact that the spouses continue to maintain life together in
the same dwelling or having passed a certain amount of time since the commission of the offense does not

means that this has been forgiven.

It is up to the defendant, in principle, to provide evidence of the existence of the pardon, as it is a fact.

extinctive of copyright. But there are those who understand that the matter at hand falls under

scope of official appraisal by the court, when it deems that the fact does not
jeopardized the continuation of the common life of the spouses.
In addition to forgiveness, there is also the reconciliation of spouses as an extinguishing cause.

on the right to divorce. Reconciliation is already an agreement of the will of both spouses.
it simultaneously consists of the verification of two elements: the moral element and the
material element.
The first element translates to the agreement of the spouses to forget the
reciprocal offense or offenses, recognizing one's own faults when they exist
both. The second element, the material, is embodied in the fact of living together.
the spouses' relationship shall be resumed in its fullness.

Both forgiveness and reconciliation exclude the right to divorce, but only
releasing regarding previous facts, translating into a tacit waiver of requesting the
divorce in a concrete situation. It has no relevance to facts
supervening or regarding facts whose knowledge is subsequent to the pardon or
reconciliation.
The forgiveness and reconciliation, as legal acts, are subject to being annulled in the
if it is found that its granting or production occurred due to error,
fraud or coercion.
The spouse who during the divorce proceedings invokes facts that constitute forgiveness for

the other party or the reconciliation of the spouses will bear the burden of proof
of these facts, in accordance with the general rule of article 342, paragraph 2 of the already mentioned Civil Code.

C—The expiration of the right to divorce

The exercise of the right to divorce is still subject to expiration if it is not
exercised within the legal deadline. The legislator understood that the spouse who feels affected by the

the conduct of the other spouse must have a period within which they must react. Also the
the stability of the family does not advise invoking against the other spouse
ancient facts, so it is not allowed that, for reasons of mere opportunism, one comes to
later to invoke them as the basis for a divorce petition.
The Civil Code established a period of one year for the filing of the action (art.
1782.°). This article was revoked by article 7.° of Law n.° 53/76, which stated the following:
The right to separation of persons and property or contentious divorce expires after two years.
years from the date when the offended spouse or their legal representative had
knowledge of the fact capable of substantiating the request.
Today, Article 102 of the Family Code maintains the two-year period for the
exercise of the right to divorce. The deadline begins with the knowledge.
the fact that serves as the basis for the request made by the spouse that formulates it, and not

from the date of its commission by the other spouse.

The counting of the deadline can sometimes prove difficult when it comes to
continued facts that extend over a certain period of time.
 If it is a continued fact, the right to divorce remains as long as
the fact continues to occur, regardless of the date of knowledge by
of the other spouse. The expiration period only starts counting from the moment of
that the fact ceased.
This is what is provided for in section 2 of article 102 of the Family Code.

For example, in the case of the continued practice of adultery by one of the
spouses who are known to each other, as long as the adultery persists
the right to divorce persists, which only expires when two years have passed since the
date of cessation of adultery.
The general rule for counting the expiration period is contained in the article
329.° of the Civil Code. In principle, it is up to the defendant to prove the passage of time
as an extinguishing factor of the author's right (art. 343, no. 2 of the Civil Code).
But if there are elements in the process from which one can conclude that it
the expiration must be known ex officio by the court (n.° 1 of
Article 333 of the Civil Code), since we are dealing with legally regulated matters.
excluded from the availability of the parties. This is the legal position adopted in the Code of
Family, whose article 102, number 2 determines that, in the case of a continued fact, the period
It only runs from the date on which it has ceased.

Procedural formalism of contentious divorce

1.Special process
The Family Code, considering a more effective application of the law, well
as a greater realization of the goals pursued by it, saw itself in the need to
introduce specific procedural norms into your text.
They essentially aim to achieve a more dynamic and active intervention of
tribunal, allowing for a better ascertainment of material truth, and also a justice
but more ready, removing the excessive formalism of ordinary declarative processes
that were applicable to all actions of state of a person, becoming applicable
to actions of a family nature special process rules.
According to this guidance, Law No. 1/88, which approves the Family Code,
determines that, until the current legislation is reviewed, the actions provided in
The code will follow the formalism of the voluntary jurisdiction processes provided in the article

1409.° of the Civil Procedure Code—art. 6.°, n.° 1.

Although the process of contentious divorce is adversarial in nature and not
gracious, the applicable process is that of this article 1409, which in turn refers to the
Articles 302 and 304 of the Civil Code.
The rules of voluntary jurisdiction procedure apply, however,
subsidiarily, as the civil procedural rules are applied first
constants of the Family Code itself, as provided in no. 1 of the mentioned art. 6 of the Law
No. 1/88.
Now, in terms of divorce, the Family Code also establishes rules for
procedural nature and specifically some that relate to contentious divorce.
Cumulative orders
First of all, Article 104, paragraph 1 allows for the cumulative request of
divorce with any of the following requests:
a) the request for alimony;
b) or the regulation of the exercise of parental authority and provision of alimony
to the couple's minor children;
c) or the assignment of family residence.
Paragraph 2 of this Article 104 also allows that, contrary to what is provided
Article 274 of the Code of Civil Procedure regarding the nature of the counterclaim,
the spouse against whom the action is filed may or may not submit a new divorce request, and,
even if not doing so, deduce any of the requests expressed in number 1, by the way of
counterclaim.
By assigning to a single court the knowledge of issues related to
marital relationships, such as divorce, and issues related to the relationships between parents
and children, as with the regulation of parental authority, are already in accordance with the
Law of the Unified Justice System, which provides for the existence of Family Rooms in
Provincial Courts with jurisdiction to decide all matters of nature
familiar, according to article 32, paragraph 1 of Law No. 1/88, of December 31, already mentioned.
Through contacts with the parties, with the members of the Family Council
speak for the case, from the evidence produced in the records and from the social inquiries that I had conducted,
The Family Court Judge will need to gain a deeper understanding of reality.
fact that encompasses the entirety of the issues presented for your consideration and thus

find for each of them a decision that is expected to be the most appropriate.
3. Reconciliation of the spouses

Of particular relevance is the court's intervention in the reconciliation of the spouses.

Article 105 establishes that the judge must always attempt conciliation.
since both spouses live in the country. Hence, once the action is proposed
divorce and ends the phase of the pleadings, the judge should schedule this hearing of
conciliation to which the spouses must attend or be represented, even if
do not reside in the area of the Province where the court is located.

This attempt at reconciliation is very important, as it allows a body of

State seeks to preserve the stability of the family.
The attempt at conciliation can be carried out in the manner that the judge deems most appropriate.

effective, as it involves listening to each spouse separately and then together,

and explaining the personal and economic consequences of the end of marital life and
its effects on children.
The experience, however, shows that, in the vast majority of cases, reconciliation
through judicial means is ineffective. In other legal systems, the attempt at conciliation precedes the

phase of the articulated action, or the citation order for contesting the petition
initial.
The judge can indeed suspend the progress of the case for a period not exceeding
three months, when deemed justified—article 105, n. 2. And, when the
considering it useful for the reconciliation of the spouses, the court may, on its own initiative or at the request of the

parts, call the Family Council to hear it—art. 105, no. 3.

Nowadays, the process of family mediation is increasingly being advocated for.
special relevance in divorce actions. Mediation is directed not only in the sense of
obtain the reconciliation of the spouses but mainly to mitigate the effects of divorce and
to obtain agreements on the various issues that arise from the dissolution of the bond.
conjugal.
 4. Conversion of the action

If the court concludes that the spouses do not want to reconcile and
they remain unwavering in their positions, should take the initiative to reach an agreement
of both to convert the contentious divorce action into a mutual divorce action
agreement—article 106, number 1.

The option of this form of divorce is considered preferable, once consensus is obtained.
the parties, without resorting to knowledge of the contentious facts.
However, this will only be possible if the respective legal prerequisites are met.
that is, if the requirements regarding the age of the spouses are met,
duration of the marriage and the complementary agreements, as provided for in arts. 83.
e 85.° of the Family Code.
If the spouses agree to proceed with the divorce by mutual consent and
if the legal requirements are met, the process follows the terms of this
divorce modality.
That is, the judge may set a deadline for the spouses to bring the agreements to court.
complementary provisions set out in article 85 and designate a day for a new conference of spouses,

if so.
If the process is converted into a mutual consent divorce and one of them comes to
not meeting the deadline that is set or later withdrawing after the declaration of
provisional divorce, it should be understood that the other spouse has the right to proceed
with the request for contentious divorce, which has been previously formulated, safeguarded
the procedural rules.
5.Provisional measures
If the spouses do not reach an agreement, the divorce process proceeds,
it has become necessary to take measures that regulate the lives of the spouses in this new phase
during the pendency of the action. If such has been requested from the court, it may decide
provisionally on the requests mentioned in article 104, that is, on the request for
spousal support, on the regulation of parental authority and child support
minors and on the assignment of the family residence, as allowed by article 107 of the Code.
from Family.
 The allocation of food to the spouse and minor children shall be temporary in nature,
as provided in article 256 of the Family Code.
Before making a provisional decision, the judge may carry out the inquiries he deems necessary.

necessary for the clarification of the facts, such as ordering inquiries to be conducted
social, request information from public bodies or private entities, etc.
Although this article 107 does not expressly state it, the Judge can take other measures.

urgent provisional measures that prove necessary for each case,

such as the delivery of personal goods of the spouse, the prohibition of certain conduct
offensive, etc.
In fact, in the laws that have been adopted in various legal systems, these
provisional measures are triggered at the outset of derivative processes
of complaints regarding domestic violence.
6. Effects and recording of the sentence

The sentence that decrees the divorce must, whenever possible, declare what the
date on which the cohabitation of the spouses ended, as the de facto separation is
legally relevant, both in terms of personal effects and in terms of effects
property matters of divorce dissolution—articles 81, paragraph 1, and 82, paragraph 1 of the Code

Family.
The sentence issued in the contentious divorce action, just like in the process of
divorce by mutual agreement is necessarily subject to registration, as it involves
modification of marital status of individuals—article 2, paragraph 1 of the Civil Registration Code.

Thus, shortly after the final judgment of the sentence, a certificate must be sent.
to the competent registry office (Article 101), for the purpose of the annotation provided for in
Article 88, paragraph 1, item b), both of the aforementioned Code.

If the marriage was performed abroad and has not been registered or
it only concerns foreign citizens, there is no room for the communication referred to
Article 101 of the Civil Registration Code.
In relation to third parties, the effects of a patrimonial nature only occur from
of the registration of the sentence, as provided for in Article 82, paragraph 2 of the Family Code.
 CHAPTER 16.
EFFECTS OF MARRIAGE DISSOLUTION

Generic effects
The marital bond disappears with the dissolution of the marriage, whether it is carried out

due to death or divorce. The marital status of the surviving spouse changes to the status
of widowhood, in the case of the death of the other spouse; both spouses enter a state of
divorced in the case of marriage dissolution by divorce.
The effects of the dissolution of marriage only take effect in relation to the future, or

be, from the date of death as a material fact or from the date the sentence
fixed like that of presumed death, or of the final judgment of a divorce sentence,
if it is not given as verified before the end of cohabitation.

The effects of the dissolution of marriage can be of a personal nature, which are
they reflect in the relationships between the spouses and between them and the children, and of a patrimonial nature,

for the dissolution of the marriage marks the end of your economic regime. Cease the
powers and duties between spouses, and that, apart from dissolution, the only
the obligation that can subsist is the obligation of support, which can be maintained by
settle on the principle of post-marital solidarity.
The Family Code grants the dissolution of marriage by death a
more favorable treatment than the dissolution of marriage by divorce.

[105] Effects of the dissolution of marriage due to death 1. Effects of a nature

people.
The state of widowhood begins with the death of the other spouse, verified
directly from the date on the death certificate or indirectly from the date
presumable from your verification declared by the court. From that moment on cease
regarding the superstitious spouse, the rights and duties that arose from the marriage.
However, the widower maintains in his ownership personal ties typical of the...
previously contracted marriage.
 a) Right to a name
The widowed spouse retains the right to use the name. This right has already been in place.

enshrined in the Civil Code, under which the woman retained the right to use
the husband's nicknames in case of widowhood and even entering into a second marriage (art. 1675).
Article 36, no. 1 of the Family Code states indiscriminately that the husband or the
women adopt their partner's nickname or choose a common family nickname. Therefore
similarly, consistently, number 3 of article 36 provides that, in the case of dissolution of
marriage due to the death of one of the spouses, the surviving spouse maintains the right to use
of the name, as long as no new marriage is contracted.

b) Link of affinity
The bond of affinity, which connects one spouse to the relatives of the other, does not cease with

the dissolution of marriage by death. This is, as we have seen, the rule of article 15, no. 2
of the Family Code. This bond remains even if the surviving spouse comes
to enter into new marriages.

c) Right to remarry
As we have seen, there are laws that provide for the marital period as
impediment impeding and imposes a period during which the widowed spouse or
a divorced person cannot remarry for reasons of social decorum or to avoid the
overlapping presumptions of paternity concerning the married woman.
This deadline does not exist in the Family Code, so nothing prevents the spouse
I survive, man or woman, contract a new marriage as soon as the previous one is dissolved.
If this happens, the rule stated in article 165 of the Family Code should apply, which
presumes paternity to the husband of the marriage celebrated in second place.
The law also does not impose any limit on the number of times that a
A person can enter into marriage, so each one can remarry as many times as they want.
I wanted, as long as there are no legal impediments.
In European jurisprudence, specifically French and Portuguese, there has been
the testamentary provisions that impose on the surviving spouse null are judged
obligation not to remarry.
 d) Rights regarding children When we study the relationships between parents and children
we saw that paternal authority is exercised equally in rights, duties and
responsibility of the father and the mother.
And in the case of one of the parents passing away, the surviving parent takes on the responsibility.

exclusively to paternal authority.

This means, therefore, that in the case of the death of the father or mother, it is up to the parent

I survive all the rights and duties that are part of parental authority and that parents
they hold in relation to their minor children, both regarding their person and regarding
to the management of assets.
The death of one of the parents will thus lead her to fall entirely upon
the other parent, but however, the functional nature must always be taken into account
of parental authority, which as we saw, imposes in art. 127, no. 2 of the Code of
Family, that: "Parental duties and rights must be exercised in the interest
"of the children and of society."

e) Obligation of alimony
It may happen that the surviving spouse does not have the resources to support themselves.

due to the fact that the assets of the deceased were assigned post mortem to other heirs
or heirs, nor have the right to social security pensions or other means that you
allow to survive with a standard of living identical to the one maintained during the duration
of the marriage.
Eventually, if the widowed spouse requires food support, this may be
withdrawn from the income of the assets left by the deceased. When this happens, we are
in the face of the extension of the duty of assistance between spouses beyond the
dissolution by death, as it was understood that the deceased would be concerned about the conditions

of the life of the widowed spouse after their death.

This principle is expressed in Article 261, paragraph 1 of the Family Code, in accordance with

in case of death of one of the spouses or the partner in a de facto union

judicially recognized, the widower or surviving partner has the right to be
fed by the income from the assets left by the deceased.
 This principle was already stipulated in article 2018 of the Civil Code. This burden
any rights pertaining to the entire inheritance that was subject to succession should be supported by

heirs in proportion to their respective hereditary quotas and cannot exceed the limits
of these. This right to alimony for the surviving spouse is referred to as 'the apanage of
widowed spouse
2. Effects of a patrimonial nature
Article 75 of the Family Code contains the rules applicable to the dissolution of
marriage due to death in its patrimonial aspect. From the confrontation of this precept with that of

Article 80, which establishes the property effects of dissolution by divorce, makes it clear that
more favorable treatment that the law gives to the widowed spouse.

a) Rights and benefits

The surviving spouse maintains the rights and benefits that they have received as a result

of marriage, as stated in article 75, paragraph 1 of the Family Code. Among these rights
we can mention the social benefits of the deceased that are transferable
to your spouse and which do not extinguish with the marriage, the right to security pensions
social rights that are transmitted to the widowed spouse upon the death of the rights holder. The

benefits arising from marriage can be of various natures, such as

donations made by the other spouse or by a third party, before or during the marriage, the
values of insurance premiums or assistance payments made by
deceased spouse.
Within the objectives of the Social Protection of the worker lies the
necessity to "ensure the survival of their family members in case of death." — Law
of the Bases of Social Protection, Law No. 7/04, of October 15 {Official Gazette, No.
83), art. l.°, paragraph a).
The legal regime of this law was, as we have seen, defined by Decree No. 38/08 of
June 19 (Official Gazette, No. 112) which establishes in its article 6: 'Are'
linked to Mandatory Social Protection as dependents of the insured: a)
the spouse or person in a de facto union.
This ensures the right to survivor's pension for the spouse of
deceased worker. The common-law partner, just like the spouse, has the right
survivor's pension, in the case of the worker's death—art.° 6-° letter a)
of Decree No. 38/08 of June 19.
Presidential Decree No. 8/11 of January 7 grants the funeral allowance to
spouse of the insured—art. 3, already mentioned above.
In certain cases, the surviving spouse is granted the right of representation for the purpose of

posthumous, namely in the defense of personal rights related to respect for

memory of the deceased.
b) Succession law
The widowed spouse has the quality of being an heir of the deceased regarding their
inheritance, arising in the 4th class of successors, as provided in article 2133.
paragraph d), of the Civil Code.

In current Portuguese legislation, such a situation is altered, as the spouse

the widower appears as a successor heir, both in the l.a and in the 2nd class of successors,
together with descendants and ancestors.
According to the provisions of the still in force Civil Code, the surviving spouse, in the case of

not having descendants or ascendants of the deceased, has the right to lifelong usufruct
of the inheritance assets as a legitimate legatee (art. 2146).
In addition, the widowed spouse retains full rights to all bequests.
testamentary grants made by the pre-deceased spouse. The gifts do not suffer
any restriction, except for those that respect the reservations of the legitimate heirs.
c) Liquidation of assets
The end of the economic regime of marriage is particularly important when the
the property regime of marriage is any type of community property regime, whether it is
general partnership of assets (which was the default regime before the entry into force of the previous one

Code) or the community of acquired assets, which, from then on, is the supplementary regime
general.
In the regime of separation of assets, the assets of each spouse are separated.
but there may also be a need for the liquidation of liabilities or for the division of
assets acquired in common. The cessation of the property relations between the spouses
it generally operates in two phases:
liquidation of liabilities;
 —division of common assets.
The settlement of liabilities is carried out by first proceeding with the payment.
the debts contracted with third parties. The dissolution of the marriage causes the cessation of the

legal moratorium on the exclusive debts of each spouse, which then become
enforceable—art. 64, no. 1 of the Family Code.
All debts to third parties, whether common or exclusive, must be settled. In
in second place, the debts incurred by the spouses between themselves are settled.
These charges are successively satisfied by the debtor's share in
common heritage and then by the debtor's own assets - art. 75, no. 3 of the Code
of Family.
Once the liabilities are settled, the sharing of common assets takes place and the

determination of the personal assets of each spouse, which is comprised of the

respective property and by the assets that become part of their share. As the
The word indicates that the share consists of the right to half of the couple's common goods.
It is important to distinguish between the liquidation and division of the couple's assets and the liquidation.

the succession sharing of the estate of the deceased. This liquidation and sharing can be
carried out jointly in the same act, but one thing is the ownership of the right of
surviving spouse over the assets of the dissolved couple and the other is the ownership of the rights
of two heirs or legatees to the assets of the deceased.
In this case, the rules of succession refund apply, and the ...
heirs or legatees, among whom the surviving spouse may or may not be included, and
so these are called to receive the own assets and the assets that come to be integrated into the
the deceased's share.
When sharing the common property, the surviving spouse enjoys the right to
preference granted to you by art. 75, no. 2 of the Family Code.
This right of first refusal consists of being able to integrate your share of the assets.
specified in the law and are:
a) the goods that have been used in the household;
b) the goods that have been used as specific or common instruments of
work.
 Once again it was understood that, given the special purpose to which they are bound such

good, and for the benefit of the purposes for which marriage was established and its correlation
intimate with the stability of the family, if it should provide special protection in the affection

of these assets, benefiting the surviving spouse, who may preferably want
that they become part of your share.
The right of ownership and enjoyment of such assets must belong to this spouse.
and, so that he is not deprived of them, the law grants him the right of preference over
the other heirs of the deceased.
d) Transmission of the right to lease the family home The right to
family residence is one of the most relevant rights that derives from marriage and
which has its legal extension upon its dissolution.
In all legislations, more and more attention is paid to the destination of
family residence after the marital bond is dissolved.
The right to lease the house intended for housing is transferred to the spouse.
widowed, since not legally separated, according to what is stated in the
Decree No. 43,525, of March 7, 1961 (Tenancy Law), still in effect.
Decree No. 43,525 states that the transfer of the tenant's legal position is granted,
firstly, to the surviving spouse (paragraph a), no. 2 of article 76).
This principle was inserted in number 4 of article 75 of the Family Code, which assigns
the transmission of the right to lease the family residence to the surviving spouse,
but emphasizing that this transmission operates under the terms established by law.
This, as is obvious, is the civil law on the right of lease, where it is determined
the legal prerequisites for such transmission of rights, such as effective cohabitation
spouse at the date of the death of the leaseholder, or others that the law understands
fix
Effects of the dissolution of marriage by divorce
The effects of the dissolution of marriage by divorce are generally identical to those of
dissolution by death. But article 80 exempts some aspects of a patrimonial nature.
that apply an unfavorable regime to the dissolution of marriage by divorce.
 By distancing the conception of divorce as a sanction and the declaration in the divorce sentence

from which the guilty spouse or main guilty party, an attempt was made to de-dramatize the divorce

and to prevent the antagonisms between the spouses from worsening, which often
they made the actions of contentious divorce a true arena where were exposed the
physical and moral miseries of one and the other, producing sequels of mutual hatred
irreversible.
From this, divorce by mutual agreement proves to be a less exhausting way of
post-marital relations and make it possible for the spouses to regulate, by agreement,
various effects resulting from the declaration of divorce.
In a contentious divorce, it is also possible for the spouses to establish by
agreement on issues relating to the rights over minor children, even if under
court approval, and property rights such as the division of assets, assignment
from the family home, etc., minimizing the effects of litigation. It is important to take into account that,

If a divorce action is proposed and the spouses reconcile and withdraw the action,
or if the spouse who proposed it falls away in the action, the full recovery of everything is restored

previous personal and asset situation.

a) Date of effect production in relation to the spouses
The effects of the dissolution of marriage by divorce usually occur at
starting from the final decision of the sentence, regarding the effects on personal relationships of

spouses (art. 81, no. 1 of the Family Code) and with regard to relations
heritage (article 82, paragraph 1 of the same Code).
But these articles allow certain personal and property effects to cease
to process in the case that the divorce decree sets the date of the end of cohabitation of the
spouses on a date prior to the sentence. The end of the production of these effects can be retroactive.

if the date on which cohabitation ceased is established in the decision that declares the
divorce (arts. 81, no. 2 and 82, no. 1).
By the way, in the case of divorce by mutual agreement, the declaration of divorce
provisional suspends the duty of cohabitation of the spouses (art. 94.) that is presumed
ends from then on.
The cessation of the personal effects of marriage has particular
relevance regarding the presumption of paternity of children born to a married woman.
 The cessation of the production of patrimonial effects is felt as much in relation to
assets acquired for a consideration from the date of the end of cohabitation, as well as regarding the

common debts that arise from the legal obligation to meet the burdens of life
familiar or the common benefit of the couple. Ceasing the cohabitation of the spouses and passing
you are living in a situation of de facto separation, you can no longer proceed with any of that
causes that make debts communicable. We understand that the date of filing the
divorce action should be taken into account for property purposes, namely
regarding the nature of the debts incurred by one spouse.
In some legal systems, the property effects of dissolution of
Divorce proceedings between spouses occur from the date of filing.
from the action, allowing them to cease from the date of the end of cohabitation of the spouses,
But this reservation could not be invoked by the spouse to whom the blame was attributed.
exclusive and principal responsibility in the declaration of divorce.
Considering that the divorce action may be filed months or years
after verifying the separation of fact between the spouses and that the judicial process
it can last for a long period, it would be unfair for one of the spouses to end up
to benefit from the activity developed by the other spouse without their contribution, or that,
instead, be harmed by debts from which he did not benefit.
The sentence that declares the divorce and sets the date of the end of cohabitation
as of the date on which personal and property relations between the ceased
spouses, will thus produce effects retroactively to that date.
b) Date of production of effects in relation to third parties
The effects of the dissolution of marriage by divorce only occur much later.
late in relation to third parties, that is, after the registration of the sentence which, as we have seen, is of

mandatory nature, the court must communicate it officially to the Registry

competent.
It is what is provided in No. 2 of Article 82 of the Family Code and is in accordance.
with the secret nature of the divorce process, which, in principle, only the spouses have
access. This provision may not apply in relation to third parties who prove to have
knowing the existence of the divorce and having acted intentionally to the detriment
of one of the spouses, or when there has been fraudulent collusion between one of
spouses and third parties, to harm the other spouse.
Effects of a personal nature
a) Regarding the name
The right to use the name acquired due to marriage, whether regarding
the nickname of the other spouse, whether regarding the common family name, is completely terminated

when the dissolution of marriage by divorce occurs—art. 36, no. 2 of the Code of
Family.
In the Civil Code (art. 1675), it was the woman who lost the right to use the name.
of the husband, for only she could choose to use his surname. But today the situation is
reciprocal wishes regarding the acquisition of the right to use the name by both parties
spouses want regarding the loss of this right due to the dissolution of marriage by
divorce.
Our law does not provide that one of the spouses, usually the divorced woman,
continue to use the surname adopted due to marriage, as happens in others
legal systems.
b) Link of affinity
After the public discussion that the Family Code project was subject to,
is stated in article 15, number 2, as we have already mentioned, that the bond of affinity is
remains even beyond the dissolution of the marriage.
Moreover, the marital impediment based on the bond of affinity in a direct line
will always endure, even if the marriage is dissolved, as stated in the text of
project. All previously mentioned effects that result from existence remain thus
of this link.
c) Right to remarry
As we have already said, it is the main effect that derives from the dissolution of marriage.

by divorce and it can be exercised after the decision on the divorce ruling becomes final.
Once the sentence is executed, either spouse can remarry without having to
awaiting any indefinite period, that our Family Code does not
establishes. Our law also does not set limits on the number of times in which it
can obtain a divorce, nor does it prohibit divorced spouses from getting back together
marry.
The fact of the existence of adultery by one spouse with a third party committed in the
the validity of the marriage also does not prevent the spouse, after the divorce, from coming

precisely to marry this person.

d) Presumption of paternity of the husband
If the woman who obtained the divorce remarries shortly after the
dissolution of the previous one and there may be a conflict of presumptions of parentage regarding

a child born within 300 days after the dissolution of the marriage is called
rule contained in art. 165 of the Family Code, which assigns the presumption of paternity
to the husband of the marriage celebrated second.
In the case of divorce, it is important to retain the fact that the 300-day period of
presumption of paternity of the husband from the previous marriage counts, not from the final judgment
judged of the sentence, but from the date of the couple's end of cohabitation, if this is recorded in the

sentence.
e) Effects concerning the children
The rights and duties of parents in relation to their children do not change due to the fact
of divorce, as the right-duty to care for, maintain, and educate the minor children remains
regarding the parents, regardless of their marital status.
As we have already mentioned, for the relationships between parents and children it does not matter, according to the

Family Code, the fact that the parents are or are not married to each other, but rather the
to cohabit or not.
Notwithstanding the maintenance of parental rights over children, whether after the
divorce wants after the end of cohabitation, the truth is that, in the majority of cases, it is
about the children who reflect their effects most negatively.
Upon the cessation of the cohabitation of the spouses, parental authority ceases to be able to be

exercised jointly by the father and the mother, now being exercised separately (art.
148.°, n.° 1 of the Family Code.
As already mentioned, parents can come to an agreement on the exercise in
separated from parental authority, but this agreement must always take into account the interests
The minor is the best guarantee of your education and development. If the parents
establish the agreement on the exercise of parental authority, defining the rights
of each of them in personal interaction with the children, the obligation of each one regarding
on the minor's food, the manner of intervention and decision on the most issues
important aspects of the children's lives, etc., the court must review this agreement and approve it.
when it is understood that he satisfies the interests of the minor—art. 109, no. 1 of the Code
of Family. This agreement can be obtained either during the divorce proceedings or within
30 days after the final judgment of the sentence declaring the divorce—art. 109, no.
2.
If the parents have not reached an agreement, and if the request regarding the exercise of the

paternal authority has been jointly formulated with the divorce request, the
the judge will decide according to what is provided in article 108, paragraphs 1 and 2, in conjunction

with the provisions of Articles 148 to 151 of the Family Code. The court will only decide
on the exercise of parental authority in the divorce process if requested
by either party. It should be noted that, in delivering its decision, the court does not have
to take into account the causes of divorce, as it happens relative to the issues of
right to food and the right to the attribution of the family residence.
It was sought, in this way, to make a distinction between the behavior of the spouses among
Yes, it is in this reciprocal quality, and the behavior of each of them towards their children, in their
quality of a father or mother.

The most important effect that arises from the separate exercise of authority
paternal is, in general terms, the act of handing over the child to one of the parents, as
this will be the one who will maintain the closest daily coexistence. It will be especially up to him to

its custody and surveillance, as well as its training and education.

These court decisions are subject to change whenever they
modify the circumstances on which they were based (art. 161 of the Code of
Family), as they are decisions rendered in voluntary jurisdiction proceedings and more in
spirit of a gracious decision that obtains, for the specific case under analysis, the best
solution.
If the circumstances that determined the spouses or the court to decide are
a certain way may change substantially, the decision may also be changed, to
better adapt to the new situation.
 f) Right to food
The right-duty of material assistance between spouses may not be extinguished.
with the dissolution of the marriage and the reciprocal obligation lasting beyond it
foods.
The allocation of the right to alimony between divorced spouses is provided for in
art. 111 of the Family Code, and it is reciprocal in relation to the husband and wife. The art.

262.° of the Family Code recognizes the right to alimony between ex-spouses,
saying that this right will be exercised according to the terms of art. 111.°. This is being sought for this

so that, after the dissolution of the marriage, the less favored spouse
economically maintain a standard of living equivalent to the one you had.
The criteria for granting the right to alimony are, according to this article.
111.°, those that concern the social and economic situation of the spouses, the necessity
of educating children and the causes of divorce.
What will weigh in the decision to be made by the court is the question of whether the spouse
a divorced person who will receive alimony is or is not in need of it to maintain his/her
survival in economic-social conditions similar to those it had during the
the validity of marriage, for not having sufficient resources or professional capacity to
to gather.
As a rule, it is the woman who occupies herself with domestic work and child-rearing.

children and the care to be taken with other members of the household, ceases to have a
professional career in which I can progress, and that is in a disadvantaged situation
when the marital relationship breaks down.
And there will still be the need to consider the interest in the education of children to impose that

one of the ex-spouses, generally the mother, continues to care for them providing for their needs

direct needs for care with food, clothing, housing, and others.
The duration of the marriage is also an important factor to consider in
decision to be rendered.

The reasons or causes for divorce, which we will further clarify, must also
to be served in the assignment of the right to alimony.
 The right to alimony by the divorced spouse guarantees them the right to
survivor's pension, under the terms of paragraph d), no. 1 of article 46 of the System Law
Social Security (Law No. 18/90, of October 27).
Decisions regarding support for ex-spouses are subject to change, as indeed
All decisions regarding alimony obligations, as prescribed not only by article 111.
2 but also article 257, paragraph 1 of the Family Code.
The cessation of the obligation of alimony between ex-spouses, which we will see later,

provided for in article 263 of the Family Code, and occurs when the ex-spouse
enter into a new marriage or establish a new common-law union, and also when
check serious attack against the life or honor of the obliged.
2. Effects of an asset nature
The dissolution of marriage by divorce produces property effects
mentioned in paragraphs a), b) and c) of article 80 of the Family Code and also gives rise to,
when that is the case, to the right to lease the family home,
a) Settlement of liabilities and division of assets
The effects regarding the division of common assets and settlement of liabilities are generally

entirely identical to those of the dissolution of marriage due to death.

As in this case, there is no common property and each spouse begins to
of the ownership of their own assets.
The division of property occurs when the marriage has been celebrated according to the
general community of property regime or the regime of community of acquired properties. If the regime
the economic regime adopted in the marriage was that of separation of assets, there is no need to proceed with the

sharing of any assets, unless it concerns the division of assets acquired under a regime of
co-ownership.
Before receiving their share, each spouse must check what they owe to
common property or to the other spouse.
Debts to third parties are settled first and then the
debts between spouses, terminating the legal moratorium.
Once the liabilities are satisfied, the remaining assets are then divided into two equal parts.

common, as established in number 3 of article 75, applicable by virtue of article 80, both of
Family Code.
 Each spouse is equally assigned ownership of their own assets that
eventually have been under the administration or usufruct of the other spouse.
The difference that the law establishes between dissolution by death and by divorce,
reside in which, in this last case, neither spouse has the right of preference over
certain common goods, as mentioned in paragraph 2 of article 75 regarding used goods
in the home life or as a personal or common work tool.
b) Loss of succession rights
In the civil law previously in force, particular importance was given to the declaration.
of fault attributed to one of the spouses, in order to derive property effects from it, which
it was like a legal sanction for the spouse deemed guilty or principal
guilty of divorce.
c) Loss of benefits
Today, the Family Code, by giving preference to the conception of a generic cause
unique as the basis for divorce, it no longer seeks to blame the spouses for that
draw patrimonial consequences. However, article 80, paragraph c) mentions that the
dissolution of marriage by divorce results in the loss of benefits received due to the
marriage.
It is important to establish the scope of this provision and its area of application, taking into account

says that the concept of punitive divorce was removed as a generating source of
consequences of a patrimonial nature.
All forms of material enrichment can be considered benefits and even
the same social statute that either spouse obtains in direct connection with the
your legal situation derived from the state of being married.

First of all, donations made to the spouse can be mentioned by the

another spouse or by third parties, before or after the validity of the marriage, but due to
of marriage.
Similarly, the testamentary bequests made with the same should also be included.
purpose by the deceased.
 In the concept of benefits, insurance premiums or others can still be included.
form of prizes, pensions or allowances granted to one of the spouses, or by
designation of the other spouse or by means of legal provision.
As a social benefit, we can indicate, by way of example, the right to use
diplomatic passport, the right to enjoy associative or institutional rights
of public or private legal entities of which the other spouse was a member, etc..
It is now of interest to define how the loss of benefits that is provided for operates.
There, it will be necessary to distinguish between two distinct situations. If the patrimonial benefit

it came from the will of the other spouse or third parties, we understand that the loss
this liberalization does not occur ex officio by the mere declaration of divorce.
It will be necessary for the spouse or the third party who made the grant of liberality
come revoke it by express act, as the declaration of divorce does not immediately lead to
to understand that the previous intention that led to the act of generosity may have left
of existing.
The ex-spouse or the third party who granted it may even be interested in maintaining it.
the benefit granted to the ex-spouse. The loss of the benefit must, therefore, result from a
act of will of the author of the liberality.
When the benefit or right arises from a legal or statutory provision that
be assigned to the other spouse as such, it is clear that, having lost the quality of
spouse will automatically lose the right to these benefits.
d) Assignment of the family residence
Once the marriage is dissolved, the right-duty of cohabitation of the spouses ceases.
they start to live in separate housing. The right to housing of the family residence is
today an economic and social value of significant prominence, which is protected in most of
legal systems.
During the duration of the marriage, the right to is especially protected.
family tenancy and, upon the dissolution of the marriage, the allocation of
family residence is an asset that, due to its importance, has a special status, given
its material allocation to the coexistence of the family unit, which justifies that it be
protected not only during the duration of the marriage but also beyond it
dissolution.
 In some of these systems, the right to housing of the family residence is protected.
not only when it is based on a lease agreement entered into by either party
spouses, but also when the couple resides in a dwelling that is owned by a
only of the spouses or common property of the couple.

In these last cases, the court may grant the right to lease to
spouse who is not the owner and order the establishment of a forced lease agreement
between the ex-spouse owner and the ex-spouse who becomes the tenant.
The Family Code only provides for the assignment of the family residence to
the residence shall be common property of the spouses or the right to habitation results from
lease agreement concluded between either spouse and a third party.
The right to the assignment of family residence is mentioned in article 85, paragraph.
c), no article 104°, paragraph c), and in article 110°, all of the Family Code.
It is a right that, among the parties, must be discussed within the scope of relationships.

patrimonial of the spouses and that, in relations with third parties, requires intervention
mandatory for the husband and wife jointly, given that it is an asset that only both can own.

it can be alienated. Likewise, in all actions where the right to

both spouses must be summoned to court, under penalty of
illegitimacy, whether the spouses are authors or defendants, as mentioned above.
The spouses can resolve this issue between themselves through an agreement, given their
heritage nature, a solution that is mandatory in mutual agreement divorce actions
(art. 85, item c) of the Family Code) and optional in contentious divorce proceedings.
They can still let the court decide the issue when it is presented to it—art.
104.°, n.° 1, subparagraph c), within the parameters of art. 110.° of the Family Code.
According to the parameters set forth in this article 110, the court, when operating a
preferential attribution of the right to family residence to one of the spouses, must take into account

account:
a) the living conditions of the spouses;
the interests of the couple's children;
c) the causes of divorce.
The living conditions of the spouses include those of a professional nature,
economic and even social.
 The conditions of a professional nature may include the workplace, or
the fact of exercising professional activity in the family residence.
In the economic conditions, it includes, for example, in the greater or lesser
solvency of one of the spouses; under social conditions, one may take into account the fact that

the spouse to have other family members in the location, to carry out activities
relevant in the area of residence, etc..
Secondly, one must consider the interests of the couple's children, which
ultimately represents determining to which of the parents the delivery should be made
of custody of the children, in order to assign to this parent the right to
stay in the family residence.
In third place, the law states that the court, when making the choice about which of the
two spouses justify the allocation of residence, should consider the causes of the
divorce. Again, the law refers to the causes of divorce, as it has done in relation to
right to food support.

Effects of the specific causes of divorce.

We have already seen that the causes of divorce are, in fact, the facts established in the case.

sub judice and which were considered as grounds for the declaration of divorce, by
they will be the facts that are at the origin of the generic cause that materialized in the

complete and irreversible deterioration of the marital bond. The basis for the
the decree of the dissolution of the marriage is effectively this having ceased to fulfill its purpose

personal and social for which it was constituted, that is, as the law says 'having lost its'
sense.
But for certain effects, these facts need to be ascertained taking into account each
a concrete case, to decide issues with consequences in the post-marital life of
each of the ex-spouses, and having ceased the common living, namely regarding
the general responsibilities of family life and cohabitation.

The judge will have to weigh the conduct of each spouse in relation to their
marital duties and their contribution to the dissolution of the bond, in matters that
they will include, such as the right to food and the right to family residence.
 Massimo Bianca clearly and profoundly defines the concept of causes of
divorce
In the matter of divorce, the law also attributes significance, even if it is for the purpose of

merely patrimonial, to the responsibility for the bankruptcy of marriage and the inquiry
respective should above all take into account the causes of irreversibility of disaggregation of
material and spiritual communion of the family, which constitutes the destruction of a relationship

interpersonal in character as absolute as the marriage bond, the legal system does not
can remain inert with regard to the valuation of the causes that led to its
destruction, appreciating it not merely as a simple phenomenon, but also regarding
to their accountability. Although the spouses' responsibility for the bankruptcy of
marriage cannot be reduced to the paradigm of guilt in a technical sense,
because the law disregards it, it is, on the other hand, undeniable that marital relations, by
Its eminently personal character is structured around moral rules of behavior.
For this reason, when the transgression of such rules is verified, it must be taken
the spouse's debt and, once the rupture occurs, it is inevitable that a balance will be undertaken

the respective responsibilities attributable to each of the spouses.

By indicating the criteria that should guide the court in its decision, Article 110.
the Family Code does not give priority to one over the others, and all must be
taken into account in their entirety.
The assignment of the right to rent the family residence was already regulated.
in Decree No. 43,525 (Tenancy Law), which remains in effect.
Article 75 of this Decree refers to the financial situation of the spouses,
factual circumstances relating to the occupation of the house, to the interests of the children, to the fault of the

tenant and the fact that the lease is prior to or subsequent to the marriage, as
criteria that the judge must take into account when deciding.
In essence, these indicators do not differ substantially from those that come
contained in Article 110 of the Family Code.
The court must take into account all relevant issues and make a decision.
according to a judgment of equity.
 There is already case law from our courts on this issue, which, given the
pressing housing problems that arise in our urban centers, if it will
dressing with an increasingly greater acuity.
As for the request for the allocation of the family residence, it has already been decided that it must

to be formulated in the pending divorce action and not in a lawsuit filed before the
extinct Juvenile Court (Supreme Court Decision of July 26, 1990);
that the request can be made in the pendency of divorce proceedings, and that, if nothing has been done

decided or agreed upon by the spouses, it must be processed in an inventory process and
sharing of the assets of the dissolved couple (Supreme Court Rulings of October 19
from 1990 and from September 6, 1991, respectively.
Our legislation on the right to housing is very misaligned.
regarding the current requirements for granting the right to residence in the case of
divorce, since it is silent regarding the manner of safeguarding this economic right-
matrimonial.
It is not stated in the law how to proceed if the family residence is
common good of the couple, compensating the spouse who is left without the use and enjoyment of the right

to housing.
In the case of assigning the right to lease, it should always also be
safeguard the right of preference to be granted to the ex-spouse in case the other
pretend to terminate the contract, or assign your right to third parties.
In the division of the couple's assets, it is always important to keep in mind that the spouse who remains

the right to family residency must be compensated in your assets by an amount

equivalent, whenever the spouses' financial capacity allows it.
e) Compensation for loss and damages and compensatory payments The Code of
Family, within the already mentioned line of the concept of the generic cause of divorce, and
moving away from the concept of divorce as a sanction, it does not penalize the guilty spouse in the sense of

to have the duty to compensate the so-called 'innocent' spouse for moral damages or
material that you received from the divorce declaration.
By the way, within the socialist conception of law, they were generally dismissed
concepts of attributing a monetary value to moral damages, as it is understood that the
Human suffering cannot be valued in material quantities.
 But this understanding is not followed in many legal systems that
they defend the right of the divorce victim to be compensated for the moral damages suffered.
The material livelihood of one of the spouses in the post-divorce period is an issue that
is provided for in various laws, which seek to allow the divorced spouse to remain
in a disadvantaged economic situation to maintain the standard of living that he had during the duration

of marriage.
As a rule, the delivery of a certain asset value is established by
spouse whose economic situation is more favorable, for the benefit of the spouse
economically weaker. Italian law refers to "post-marital allowance".
the delivery can be made all at once, or through compensatory installments,
as they are designated in French law.
Through this system, the future of the divorced spouse is sought to be safeguarded,
giving him a capital that, at the outset, protects him from the abandonment he may face due to
of divorce, and that, better than the alimony paid month by month, may
to give him a guarantee of livelihood.
The compensatory payment is based on the fact that the
spouses have managed, during the duration of the marriage, to improve their situation
economic and social, helping each other, which is not always reflected in
sharing of assets. Normally, it is the woman who is harmed by having dedicated herself
to the interests of the home and the education of the children, sacrificing her professional life, which,

after the divorce, it translates into lower potential to earn income.

compensatory payment delivered by one spouse to the other consists of amounts that
allow this last one to start a new activity.
With a new view that divorce is not based on the search for blame and on
assignment of 'expiatory penalties' for the spouse deemed guilty, seeks to
find ways to ensure that, after the dissolution of the marriage, each ex-spouse
you can continue your life without major disruptions in the economic aspect.
Hence the tendency for the assignment of certain 'benefits
"compensatory", which English law refers to as "lump sum" in the fact that the spouse
most favored from an economic point of view to deliver to the other capital or others
assets, all at once, to start an economic activity.
 As for how the distribution of the couple's assets operates, it depends on there being
or not agreement between the spouses.
It can be executed through extrajudicial means and included in a public deed, if
there are real estate assets, social shares, etc. when the transfer of these rights or
benefits depend on this legal way, or through judicial inventory, which will proceed through
I think about the divorce process, after the final judgment of the respective sentence.
when there is no agreement.
In divorce proceedings by mutual consent, article 89, paragraph c) provides that in
initial request the spouses attach 'the specified list of their own assets and the
common goods." In this way, when making this relationship, the spouses must indicate all the
defining its nature, unable to credibly come, afterwards,
claim supposed omissions in this relationship.
It was discussed whether the promise contracts between spouses made are valid or not.
during the pendency of the divorce action, it was argued that they were
devoid of any binding value between the parties.
The prevailing understanding today is that if such are not prohibited
promise contracts and whether they bind the respective signatories under the same conditions
in form and substance to which the other promise contracts are subject, then they are
subject to the condition that the divorce may be declared and that the judgment becomes final.
In this sense, it is considered that the promise contract represents:
a sharing under a suspensive condition valid from the common heritage,
made in the pendency of the contentious or consensual divorce process that operates from
fact at the time of the final judgment of the sentence.
 CHAPTER 17.0
THE COMMON-LAW PARTNERSHIP

Nature of the institute

The de facto union consists of the common sexual cohabitation between a man and a
woman as if it were a husband and wife relationship, without the existence of a marriage
formalized. In its essence, a de facto union encompasses a living experience of character

lasting between a man and a woman according to the marital figure, what does it mean
that between them there is a sharing of bed, table, and housing {quod thorum,
table and dwelling), even though they have not yet entered into marriage with each other.
As a factual situation that it is, it presupposes a continuity over time that makes it
relevant in the social sphere and that, consequently, cannot be ignored by the law.
It is true that the de facto union, the non-formalized union, has been since the dawn
of humanity as the way of constitution of the natural family, as we saw in the context of
historical evolution of the institution of marriage, it is also true that, in the later centuries
recently, and thanks to the influence of Christianity, efforts were made to promote marriage as
privileged and even unique form of family constitution.
Thus, the marital coexistence between man and woman outside the sacrament of
marriage came to be considered sinful and a direct object of sanction
religious and even financial.
The situation of cohabitation or concubinage was stigmatized. The term concubine
comes from the Latin expression cum cubare, which means 'to lie down with', which right away
indicates the material element of union between man and woman.
In developed countries, marriage legally celebrated before the authorities
competent state-owned companies are primarily the way to form a family. The same happens
in all the countries where family law is subordinated to the religion of the state itself,
for it is the religious marriage that will produce civil effects.
Instead, in some countries, religious marriage does not produce
civil effects, being, therefore, irrelevant.
The previously existing Civil Code only recognized the family structured in
marriage. Incidentally, it made mention, regarding what was then referred to as actions of
investigation of illegitimate paternity and how one of the assumptions of these actions,
situations of 'lasting cohabitation' and 'notorious marital coexistence', whose
concepts were defined in article 1862.
Yes, however, it is important to emphasize that, in our days, this radical position has changed.

and even in countries that do not recognize the institution of de facto union as a generator of
family legal relations, the notion that such a union is outside of
marriage should have a character of illegality and should be considered sinful.
However, one usually takes into account the circumstance of the man or the woman
that those living in de facto union are not married to a third person, because, when such
Adultery arises as an element that will taint the union.
The de facto union, as a legally relevant phenomenon, has already gained prominence.
in the legislation of various countries. In Portugal, after the reform of 1977, it was defined
the de facto union as the lasting communion of life between two people of the same sex
different in conditions analogous to those of spouses, attributing some effects to it by law,
specifically regarding the presumption of paternity, when such has occurred
lasting communion of life during the legal period of conception—art. 1871, subsection
c), of the Civil Code. Article 2020 of the current Portuguese Civil Code already mentions the union.

in fact, by providing for the right to alimony to be exercised over the inheritance left by the
companion.
In French law, where the union is designated as 'free union', the principle of
sexual freedom allowed between adults leads to its acceptance as a
phenomenon on the fringes of marriage, characterized by the fact that there exists a certain

stability of common life that subsists while it is the free will of

companions and therefore can be freely interrupted. When a couple lives
before society as being married without actually being so, is referred to as 'faux ménage'.
The free union can produce patrimonial effects, namely when it was
developed common economic activity, in the right to share assets and in the right to
common residence, and is recognized as producing effects in social legislation,
making the benefits extendable to the partner of the respective holder.
 In English law, merely consensual marriage, designated as the
marriage under common law may also, exceptionally, come to produce
effects.
In Brazilian law, there is also an increasing interest from the legislator to give
certain legal protection for stable unions, established outside of marriage
Article 226, § 3 of the Constitution of the Federative Republic of Brazil, approved
cm 1988. Today the current Brazilian Civil Code enshrines the "stable union" in its
Articles 1723 to 1727. It is defined as: 'Public, continuous cohabitation and
durable established between man and woman, with the aim of forming a family
Article 1723. It provides for the economic regime of partial communion of property, except

if there is a written contract between the partners—art. 1725 and the possibility of
conversion into marriage at the request of the partners—art. 1726.
Similarly, in the United States of America, some states have adopted,
recently, laws regulating the so-called 'Domestic Partnership' (cohabitation
domestic), the relationships between partners in a common-law union, and which allow for
celebration of 'cohabitation contracts' that regulate living together relationships
marriage between two adults and define their rights and obligations
reciprocal, establishing rules of a patrimonial nature for the case of the end of the relationship,

regarding compensation, asset sharing, etc.

The right of African countries like Cape Verde provides for recognition.
from the de facto union under certain legal conditions. Allows article 01712 of the
Civil Code of Cape Verde, that the de facto union be recognized registrally.
when a man and a woman have lived in communion of bed, table, and for the period
minimum of three years, and that both applicants are over 19 years old, do not exist
marital impediments and that common life ensures stability, uniqueness and
seriousness proper to marriage. When there are one or more common descendants of
a couple is not required to have a minimum period of cohabitation.

In the current legislation in Macau, articles 1471 and 1472 of the Civil Code are relevant.

the adoption of de facto union as the voluntary cohabitation of two people, of legal age
18 years, who live together after reaching adulthood, for a period of two years. This period only
counted in the case of any of the partners being married from their separation de facto
and as long as there are no other marital impediments.
The Family Code of Cuba also provides for judicial recognition.
in an unformalized marriage, what requires the existence of matrimonial capacity
of man and woman and still the singularity and stability.
Once the marriage union is recognized, the ruling produces effects.
retroactively from the date of its inception.

Framing of Angolan law; relevance of marriage according to

customary law.
The first mention of de facto union in Angolan law was made in Law No. 7/80,
on August 27, the Law on Adoption and Placement of Minors. In article 5 of this Law, it is stated
the de facto union established between a man and a woman with permanent and exclusive character
legal relevance identical to that of marriage. The couple living in a de facto union in
conditions provided in this Law had the capacity to operate the dual adoption of a minor,
situation that remains in the current Family Code.
Later, as we have already had the opportunity to mention regarding the background
historical family code, Resolution No. 2/82 of the People's Assembly gave
priority, in the legislative review to operate in family law, to the legislation of the institute of
common-law marriage.

In the report that preceded the Family Code project, it was mentioned regarding
the de facto union is the union between a man and a woman with the purpose of
to have a common life, distinguishing themselves from marriage only by the lack of formalization
or the legalization of the union.

The foundations of the existence of common-law unions in our country differ.

substantially of the foundations of its existence in European countries and in countries
developed. In our country, most of the population lives in common-law relationships not by
ideological or principled issues, but for reasons of culture and tradition and
non-existence of the civil registry offices necessary for legalizing their union or still
for economic reasons (in urban areas).
 The objective of the State is, evidently, "to legalize as many as possible
of unions through the social joining that marriage plays in society.
It was in accordance with this legislative guideline that the institute of de facto union came

to be enshrined in the Family Code and mentioned in the fundamental principles as

one of the forms of family constitution, to which is dedicated the entire title IV of
Code.
Subsequently, the Social Security System Law (Law 18/90) was published.
of October 27 and Decree No. 49/91, of August 16, which regulated it, which,
As we have already mentioned regarding the effects of the dissolution of marriage by divorce,
attributed the right to the survivor's pension to the surviving partner of the union of
fact, since this was registered.
The Constitutional Law whose revision was completed by Law No. 23/92, of 16
September, establishes in its article 29, paragraph 1 the principle that the family has the right to

protection of the State, whether it merges in marriage or in a de facto union, thus giving
for the first time constitutional consecration to this form of family formation.
The legal recognition of de facto unions has been emphasized throughout the system.
Angolan legal. The recent Commercial Companies Law, Law No. 1/04, of 13
February, in its Final and Transitional Provisions, article 525 states: 'Whenever
in this law, when reference is made to spouse, it must be understood that the expression extends to
partners in a de facto union, even if not recognized." Now the powers of
the representations granted to the spouses of the partner are multiple, as we have already mentioned.

We may question whether marriage according to customs and traditions, or

be, celebrated according to customary law that remains in various regions of
country, must be equated to a de facto union and recognized as such, immediately for
produce civil effects.
Such procedures are used in many African countries, particularly in those
in which various personal law statutes still prevail, coexisting with the law
customary law alongside positive written law.
The recognition of marriage celebrated according to customary law was
tornado possible through the joint declaration of husband and wife made before the
competent authority. But, for the recognition or verification of the existence of
customary marriage, the legislator requires that the substantive conditions be respected
of marriage according to written law, with special relevance to the age of majority and
regarding the non-existence of other undissolved marital ties.
In countries like Senegal and Côte d'Ivoire, the law has allowed spouses
they came to register their de facto union or free union, declaring the date on which it occurred.
was initiated and, through this registration, a large number of these unions were regularized.
The Republic of South Africa approved Law No. 120/1988 of Recognition
of Customary Law that came into effect on November 15, 2000. The law
costume is defined as the usages and customs of African indigenous peoples. This law
specifies the validity requirements of marriage according to customary law, the
respective registration, determines the equality of status and capacity of the spouses, the regime
economic, the dissolution of marriage and the change of the marriage regime of law
costume for the written law regime, providing for regulatory provisions
complementary to the law.
In fact, there is no complete overlap between the concept of common law union, such
as it is outlined in the Family Code, and marriage according to customary law.
A fundamental characteristic of a common-law marriage is voluntariness, which means that the
A de facto union is established by the mutual will of both and can end by mutual consent.
unilaterally.
In the traditional wedding, there are strict rules that must be followed.
of two family members and the couple themselves, referring to the celebration of the agreement of

marriage, its maintenance and dissolution. As a rule, the woman is not called to
express your consent when the marriage commitment is established.
In general terms, it can be said that, when such is the will of both
companions, man and woman, and once the legal requirements are met, nothing
impede, in our country, that the vast majority of de facto unions be recognized and
formalized under the new law.

Concept of de facto union and legal assumptions

Article 112 of the Family Code defines de facto union as the
voluntary establishment of a life in common between a man and a woman.
 In this concept, on one hand, the subjective element is established.
voluntariness, which is essential, and, on the other hand, the objective element, which is
represented by the material situation of coexistence, according to the marital model.
There is, therefore, a need to distinguish between de facto union and cohabitation within the same.

family member of various people who live under the same roof. It is the coexistence
as husband and wife who define the de facto union as such.
In the face of a certain common-law union, two distinct situations may occur:
or it meets the requirements provided for by law, and in this case, the de facto union is
susceptible of being recognized, or not filling them and then it cannot be
recognized, without prejudice to being able to produce certain legal effects, and as such
to be attended to by the law.

It is also important to highlight that, while the de facto union lasts, it is only susceptible

to be recognized when such is the will of both companions. And this for the reason
evident that no one, against their will, can see transformed their union of
fact not formalized in an act equivalent to marriage and producing the same
effects that this.
When the de facto union ceases, the law allows that, once verified
judicially a posteriori the existence of the legal prerequisites, this recognition
come to produce the vast effects that the law grants to the dissolution of marriage.
And this is undoubtedly the most relevant effect that the new institute has started to have on
social environment, allowing that, at the time of the breakup, the previous experience, cherished by both,

come to produce effects and not be ignored by the legal order.

It is true that the voluntariness of the common-law union is manifested at the moment when

that it begins, remains throughout its duration, and ends when such is desired
by one or both partners. But the law also does not overlook the protection
two companions who create common family interests among themselves, intertwining
personal and property relationships and often having common children.
Cohabiting partners may at any time terminate.
living together without the need to resort to any judicial decision, given that it deals with
is of a consensual family relationship that also did not require any
formalism at its beginning.
 The end of mutual coexistence marks, however, the definition of rights.
acquired during her by the companions, which come to each of them from
from the moment of the breakup through the acknowledgment that this union existed and, although

extinct, it is considered legally relevant to produce the effects provided for by law.
The legal requirements imposed by law for the recognition of a de facto union
they are those expressed in article 113, paragraph 1 of the Family Code:
the marital cohabitation of man and woman for a consecutive period of
less than three years;

the marital capacity of both members of the couple;

the singularity of the union.
Marital cohabitation, whose legal content has already been defined, presupposes the

sharing of bed, table, and housing, with the creation of interdependence bonds
emotional, social, and economic among companions.
The de facto union reveals itself as such even before third parties, as it consists of a
perceptible reality in the social environment where it fits.
If there is a relationship of infidelity without common cohabitation, it does not configure the

common-law marriage.

The minimum time of common cohabitation is three consecutive years, that is, without
solutions of continuity. It is the stable nature of the union and its permanence over time,
What is taken into account for the recognition to be operated.
The marital capacity of the man and the woman is also required, which implies
that both have the capacity to marry in general and also that between
there are no relative diriment impediments.
It is understood that this is a sine qua non condition for recognition,
given the effects that the law attributes to the common-law marriage and that correspond to those of the marriage itself

marriage. It would be incompatible with imperative provisions of the law to produce effects.
own to marriages in which there were causes of incapacity
matrimonial.
The law also requires that the de facto union be exclusive, which implies that it is
singular, of a single man with a single woman. Such reflects the acceptance of the
the principle of monogamy, which is fundamental to the institution of marriage and,

consequently, to the institute of recognized de facto union.

What is important to take into account is that in order for recognition to take place
de facto union, it is not essential that during its entire duration the
legal prerequisites for recognition related to marital capacity, to mutual
consensus and singularity.
Specifically, it can be initiated even if the woman is not of puberty age, or
being one of the companions married to another person, without initial consent having been given,

etc.. But if, from a certain moment on, both man and woman started
to have matrimonial capacity or voluntarily accepted the union, to account-
it will start from then the three-year period necessary for it to take place
recognition.
The same can happen in relation to singularity, as the common-law union can
to be initially non-singular (for example, in cases of polygamy) and to change to a certain
Height, to be singular, will allow its recognition in a timely manner.
Recognition is made at the request of both parties interested (art. 115)
Family Code) and is the responsibility of the civil registry authorities in the area of residence.
respective.
The formalism to be used in this case is described in Article 116 of the Family Code.
This is an administrative process in which it will be necessary to prove initially,
just like in the marriage process, the marital capacity of the partners of
de facto union, in addition to having to cumulatively prove the uniqueness of the union and its
duration over three years.
For the proof of these legal assumptions, article 116, paragraph 2 establishes that they may
to be offered witnesses or a document issued by the local administration body. The
what matters is that, either with the registry office where the process is ongoing, or with the authority

from the local administration of the couple's residence area, proof is provided that the
interested parties lived exclusively together, as husband and wife, for at least
three years, without interruption.

Article 116, No. 3 provides that interested parties shall declare the property regime.
why they choose. Similar to what is provided in paragraph 3 of article 29 regarding the
initial declaration for marriage, this declaration is not mandatory, but
optional, since if the parties do not say anything, the general supplementary rule must apply.
Article 49, number 3, leaving the de facto union recognized subject to the economic regime of
community of acquired assets.
The process of recognizing a de facto union by mutual agreement is
subsidiarily applicable are the provisions concerning the marriage process, this
regarding the preliminary phase of initiating the process: oath by the
partners in a de facto union regarding the non-existence of impediments, possibilities
to be deducted opposition, etc..
The most salient difference between one process and the other lies in that in the process
The recognition of de facto union does not involve a celebration, that is, the part does not exist.
ritual and solemnity of the wedding ceremony. This is because it is understood that the prior

the existence of life in common makes the solemn declaration of acceptance of the other superfluous

as a spouse, especially since the fact that recognition is being requested confirms
this same will.
Upon completion of the instruction, the curator, if he considers the prerequisites verified

legal provisions of art. 113, no. 1 of the Family Code, recognizes, by order, the
de facto union, as provided in article 118 of the Family Code. It is about,
Therefore, from an administrative act. If the case arises that the custodian understands that he does not

if the legal requirements are met, the request must be denied, following, if applicable
in this case, the other procedures provided for by law, which allow for appeal against acts of

conservatives.
Once the common-law union is recognized, it produces all the effects inherent to
marriage, but retroactive to the date of the beginning of the union. But only from the
moment when the three legal prerequisites have been verified.
These retroactive effects will be especially relevant for the children born
of the de facto union, whose affiliation in relation to both parents is established from the outset

established (art. 163 of the Family Code), but still regarding the effects
heritage, namely regarding the right over common goods.
 One might wonder if, in the absence of celebration, contrary to what happens
with the marriage, the provisions of article 36, number 1 of the Family Code shall apply
regarding the adoption of nicknames or family names.
We believe that, formally, such is not provided for by law, but it is not repugnant to accept.

that this declaration be made in the request that initiates the recognition process,
what may be included in the diploma that will regulate the matter within the framework of
civil registration rules.
Once the acknowledgement of the common-law union is made, the interested parties are left in

legal situation equivalent to that of married people and the act is subject to registration to be made in a book

own, as there was a change in family status—art. 120° of the Family Code. The
your registration is mandatory and it is through it that the de facto union becomes opposable to

third parties.
Finally, Article 121 states that the recognition of de facto union is subject to
the annulment, under the general terms provided for the annulment of marriage.
The terms under which the annulment of the marriage can be operated are those that are stated.

Articles 65 and following of the same Code.

The application of the rules regarding the annulment of marriage must be carried out with

the necessary adaptations, as, there being a minimum cohabitation period of three years,
the error cannot be invoked when it is certain that the existence of this defect must be
claimed within two years after the celebration of the marriage—art. 70, item
b) of the Family Code.
Lack of formal requirements cannot be invoked either, as it does not have
admissibility in the recognition of common-law marriage made through administrative means. The lack or

willful vice, to be the basis for the annulment of the recognition of the de facto union,
you have to respect the moment of formulating the request.
In the report made for the presentation of the Family Code project
it was acknowledged that the requirement of all the formalities that have been described for the

the recognition of the de facto union by mutual agreement would lead to the majority of
interested parties would choose to celebrate the wedding.
However, they did not want to fail to provide for this form of recognition in the law.
mutual agreement, leaving it to the discretion of the interested parties to choose this route when
understand that it better safeguards its interests, specifically through production
on retroactive effects in the terms provided for by law.

Judicial recognition
The most relevant aspect brought by the Family Code regarding this
the institute is precisely that the de facto union may come to be recognized after having
ceased.
The termination of a factual union can occur, just like the dissolution of a marriage,
due to the death of one or both partners, and also due to the breakdown of the union.
The rupture is a voluntary act that will be a unilateral act if it originates from only one of the parties.

partners, and it will be a bilateral act if it results from the will of both.
we pointed out that the dominant feature of a common-law union is that it is based on voluntary consent,

and to be the result of the will of both to remain in the framework of the union not
formalized. When either of them wishes to terminate the de facto union, it will have its
term equally in a manner devoid of formalities.
The great difference brought by the Family Code is that, as we have already seen,
after the end of the de facto union, it is possible for it to be recognized in order to produce
subsequent effects, both in relation to the children and of a patrimonial nature.
Due to the large number of effects that arise from the recognition of de facto union, the
Family Code requires that he undergo surgery through the courts. It is required that it be the court,

through a specific action, proposed for this purpose, to deliver a judgment by means of
who claims to have existed between A and B, a certain man and a certain woman,
a legal situation of de facto union.
Judicial recognition is applicable, whether in the case of death in which
the desire of the deceased partner to express their agreement to
recognition, whether in the case of a rupture where a situation of dispute has arisen
between both companions.
It must be done in a specific process that determines and recognizes that the union
de facto existed for a certain period of time and that it ceased, as well as to pronounce
on the verification of the legal assumptions mentioned in article 113, paragraph 1 of the Code
of Family.
 a) Legitimacy for the action
The legitimacy to file the action is expressed in Article 123 of the Code.
of Family and is assigned solely to the respective interested parties or their heirs
in the event of their death.
In the event of death - has the legitimacy to file the action the
partner survives or their legal representative when they are unable or the
heirs of the deceased partner—art. 123, paragraphs a) and b) of the Family Code;
2. In case of rupture—the action can be proposed by any of the partners.
from the common-law partnership, or by the respective legal representative, in case of incapacity—art.

123.°, paragraph a) of the Family Code.

In the case of death, the right is transferred to the heirs of the deceased partner.
of action, which will allow for the later recognition of the existing union.
Although family law is, fundamentally, as stated, a right of a nature
People, the law recognizes in certain exceptional cases the transfer not of the exercise of
the right itself, but the right of action that will reverberate in the legal sphere of
successors of the holder of this right.
The law safeguards not only the right of heirs to file a lawsuit
of the interested party but also the right for them to proceed with the action in case it comes to
to pass away the companion who proposed the action or against whom the action is proposed.

Unlike what happens in a divorce action, the action for recognition of

a de facto union does not cease with the death of either party, as in both
In some cases, the heirs of the deceased may proceed with the action.

b) Deadline for filing the action and procedural formalism

Article 124 of the Family Code provides that the action for the recognition of the union

must be proposed within a period of two years, under penalty of expiration, deadline
this is known unofficially by the court—art. 333, n. 1 of the Civil Code.
It can be verified that the Family Code generally establishes the deadline of
two years for the exercise of certain rights of action, although in other cases it is
until a deadline of 1 year is established, when it is understood that it is necessary to preserve with prevalence the

previous legal situation.

 In the case of the recognition of de facto unions, it was understood that it should be limited

the time within which the interested parties should exercise the legal right to propose or
not propose the action. In fact, the circumstance that the law attributes to the recognition of
The broad and important effects of de facto union require that the interested parties come to court.

with due diligence to claim your rights in order to define the rights of others
partner and also the eventual rights of other interested parties.

It is again the principle of security of legal relations that makes it so that

a deadline should be indicated for the exercise of this right, after which the right ceases.
exercise.
The two-year period is counted from the end of the union, so if it has ended
due to the death of one of the partners, this is the relevant date. It ended due to a rupture, the deadline

it is counted from the date on which cohabitation definitively ceased.

The judicial process for the recognition or mere affirmation of the union of
fact follows the procedures of the special process, already mentioned in general terms for the
divorce process, namely those provided for in arts. 6 and 7 of Law No. 1/88.
As a specific norm, we have art. 125 of the Family Code.
In the judicial investigation of the existence of a common-law relationship, it is mandatory to

intervention of the Family Council, as we have already mentioned, thus the lack of
The constitution and hearing of the Family Council constitutes a procedural nullity.
insurmountable. This nullity is known by the court officially and, once verified,
leads to the annulment of the process from the moment he should have intervened, in accordance with

Articles 201.® and 202.® of the Code of Civil Procedure The Family Council must be
consisting of two members chosen from the man's relatives, and two
chosen among the woman's relatives—Article 17, paragraph 2 of the Family Code.
It is understood that the law deems it essential to hear the opinion of the Council.
of Family, as no one better than the couple's relatives will be able to or not
confirm the existence and permanence of the de facto union, characterized by its nature
de facto public in the respective social environment of companions.
When analyzing the evidence produced, the court must verify whether all are met.
the legal prerequisites for a de facto union to be recognized regarding the
marital capacity of the partners, the beginning and the end of the common-law union, for
the fulfillment of the legal period, and also that of the singularity of the union.

Even though the de facto union was initiated without fulfilling the
legal assumptions, it can come to be recognized, as we have seen, if, from
determined moment and at least for the minimum period of three years
consecutive, they check themselves.
One can also do the reverse, that is, to fulfill the legal requirements, and,
from a certain moment, it will stop happening (for example, if it ceases to be
singular in relation to the man who simultaneously initiates another de facto union with
another woman).
In this case, if the first union breaks, the partner or companion
from the union that was valid to produce effects, may come, within the period of
two years, request the respective recognition. c) Effects of recognition
Once the existence of the de facto union that met the prerequisites has been proven.
According to article 113, number 1, the judge must recognize this union, indicating, as far as possible,

when it started and when it ended in order to determine the period in

that it produced effects, particularly regarding the acquisition of common goods,
liability for debts, legal presumption of paternity by the partner
of the children born from the union, etc.
The date of the end of the union marks the cessation of personal and property relations.

the companions, since this ends by a simple act of will of one or of

both.
Nevertheless, it is worth emphasizing the wide reach of the sentence that may come to

recognize the de facto union that has met the legal requirements, since
The effects of this union are equated by law to those of a dissolved marriage.
Thus, if the partnership ended due to the death of one of the partners, the
the effects of recognition are the same as those of the dissolution of marriage by death—art.

126.° of the Family Code.

As we have seen, the Basic Law on Social Protection, Law No. 7/04 of October 15
whose legal regime was defined by Decree No. 38/08 of June 19 (Official Gazette
Republic, no. 112) establishes in its art. 6.° "They are bound to Social Protection"
Mandatory as dependents of the insured: a) the spouse or person in a union
de facto.
Thus, the right to a survivor's pension is guaranteed to the partner of
cohabitation akin to that of a spouse, in the event of the worker's death—art. 6.
paragraph a) of Decree No. 38/08 of June 19.
If the de facto union ended due to breakup, the effects that recognition produces
they are the same as the dissolution of marriage by divorce, as indicated by the cited article.

126 degrees.
The relevant effects of the dissolution of marriage apply here, except for
as for the personal effects of marriage that are not produced in
common-law marriage and which are intrinsically linked to marriage as an act, such as
the family name, affinity, and acquisition of nationality. Regarding the children,
Given the end of cohabitation, the previously mentioned rules apply in full.
Article 147 and following of the Family Code.
In the field of property relations, the effects are practically the same.
There will be the right to share the common assets acquired for consideration during the union,
It is therefore applicable to supplementarily apply the regime of property of acquired goods.

The responsibility for the liability follows the same rules as the
dissolution of the marriage, first of all, must proceed to the liquidation of
passive.
The right to allocate the family residence is also verified in the same.
conditions of articles 75, n. 4 and 110 of the Family Code.
The applicable rules of the right to food are also those provided for the
case of dissolution of marriage by death. Article 261, sections 1 and 2 assigns to the
surviving partner of recognized common-law marriage the right to receive support from
earnings left by the deceased.
In the event of the dissolution of the de facto union that meets the legal requirements, the

a partner who has not been the sole cause of the breakdown is entitled to support, as
prescribe the provisions of articles 260 and 262, number 2, both of the Family Code.
 On the other hand, the formation of a new de facto union by the partner
who had the right to alimony, terminates this right, as prescribed by article 263.
Family Code.
The decision recognizing the de facto union dissolved by monetary means or by rupture is
subject to registration, as it is constitutive of family legal relationships, such as
expressly stipulates the final part of article 126 of the Family Code.
She should be officially communicated by the court to the registry office.
civil law of the last common residence of the de facto partners, applying
by reference to the provisions in article 120 of the Family Code and article 101 of the Code of
Civil Registry.

Service of the de facto union that does not meet the legal requirements.
Article 113, paragraph 2 refers to a de facto union that cannot be recognized by
lack of legal assumptions, which puts us in front of all the situations that may occur
in which there effectively exists common marital life between man and woman, but it does not
can be subsumed under the legal provision of paragraph 1 of the same article, due to the lack of any of the

legal requirements (duration, marital incapacity, uniqueness).

In this situation, all polygamous de facto unions, which are still very common.
in the country.

It is said here about the 'de facto union that cannot be recognized' to distinguish it
the de facto union that can be recognized. But it is necessary to take into account that it, in

rigor, can be recognized, not to produce effects that in its fullness produces the
de facto union (no. 1 of art. 113), but only to produce the restricted effects
provided for in the second part of article 113, paragraph 2, and also the presumption of paternity effect

regarding the children born from the de facto union (art. 168, paragraph
b) of the Family Code).
With the purpose of protecting the children born or conceived during the validity of the

de facto union, this article 168 establishes the legal presumption that children born from
the companion's children are the children of the man with whom she lives in this union, even if the

union is not recognized. To the children born from these established de facto unions
among the respective parents, the law assigns this legal presumption of paternity, being in this
situation for the majority of the population in our country.
It is now of interest to break down the predictions specified in the cited number 2 of article 113.

which must be met even if the common law union does not meet the requirements
legal.
The illegal enrichment, in general terms of civil law, corresponds to
enrichment without cause provided for in articles 479 to 482 of the Civil Code.
Your verification depends on the following conditions:—conditions of order
economic
1— the enrichment of the defendant,

2— the impoverishment of the author;— legal conditions:

1—link of causality between enrichment and impoverishment,
2—absence of cause,
3—absence of appropriate action.
During the existence of the common-law marriage, there may be circumstances in which it occurs

the unjust enrichment of one partner at the expense of the property or the
provision of services by the other, made with the purpose of a shared life. It can
to materialize in facts such as liberalities, consumption of goods or merchandise,
domestic or assistance services, provision of work on behalf of
other without remuneration, etc.
It is necessary to ascertain whether there has been an unjust enrichment not legitimized by law.

one of the parties is a direct or indirect impoverishment by the other party.

This recognition, to produce inter partes effects or in relation to
heirs of one of the partners must always be done through judicial means and can
it may happen that only in the judgment phase the court can assess and decide that the
the prerequisites for de facto union are met, in order to express which the
nature of the de facto union that was verified in the specific case and hence draw the conclusion
about the legal effects it produces.
In fact, if one of the prerequisites is missing, the de facto union no longer produces the

effects of the dissolution of marriage by death or divorce, as the situation experienced,

given the absence of any of the mentioned legal requirements (the stability of the union, the
the marital capacity of either partner or the uniqueness) prevents that,
even a posteriori, it is equated to marriage.
However, these effects are undoubtedly relevant in the sphere of relationships.
heritage nature of ex-partners in a common-law marriage, as they refer to three
situations that are distinct in themselves:

—to unjust enrichment;

to the sharing of common goods;
the granting of the right to common residence.
In this regard, the property effects of the common-law marriage that do not
the legal assumptions can, in essence, be compared to those in other
legislations are now attributed to de facto unions considered free union or
cohabitation
Whoever made the provision took into account the situation of marital cohabitation, so
the end of this takes away the immediate object of the performance, and those who received it must

proceed to its restitution in kind or in equivalent value.

When referring to the sharing of common goods, the law is not equating the goods.
acquired during the de facto union to the common assets of spouses married under the regime
from the community of acquired assets.

In this type of common law union, what exists between the partners is not a regime.
marriage of property, but first a de facto partnership, as it is understood.
predominantly in doctrine. In developing a common life from the point
from a social perspective, common-law partners also develop, for the most part
two cases, a series of asset-related relationships between them and in relation to
third parties.
Assets are acquired with values from both, activities are developed.
economic with the contribution of both (in services or in monetary payments),
and this action presupposes the purpose of participating in the respective profits.
The heritage is actually two, because, in this case, it is as if between the
partners in a de facto union should be subject to the regime of separation of property. But, given the

throughout the course of common life, these inheritances are intertwined with one another, so
at the moment when the de facto union comes to an end, it becomes necessary to operate the
sharing of assets.
We are, however, faced with a sharing of each of the assets held in
co-ownership and not in relation to the division by halves of common goods, as happens
at the time of the dissolution of the marriage or the recognized de facto union and that fulfills

the legal assumptions.

In the absence of written evidence of ownership of the assets to be divided, it will be
that proof shall be made, through another legal means, that the asset in question was acquired with the

participation of both partners.

The burden of proof lies with the applicant.
Regarding the assignment of the family residence, also mentioned in the cited article
113., n. 2, the same rules as those provided for in art. 110. of the Code shall apply.
of Family and those concerning the dissolution of marriage by divorce. The purpose of the law
it is the same: to safeguard the right of the spouse or partner to whom it should be granted
the legal preference to continue residing in the same house where the couple cohabited.
Regarding third parties, cohabitation also produces property effects.
therefore should be understood as joint liability the debts incurred by anyone
of companions to meet the normal burdens of family life or for benefit
common of the couple. It has been understood that, based on the so-called theory of appearance,

the couple who, not being married, behaves towards society as if they were, should
to bear the risks of such behavior and to become a debtor jointly
before third parties, as if it were a valid marriage.
 CHAPTER 18
THE ADOPTION

Evolution of the adoption institute.

The bond of adoption is characterized by the establishment of a bond identical to that of
affiliation between two people who are not connected to each other by blood ties.
There are those who understand that adoption should be viewed and defined both as the bond.

that establishes the parentage between the adopter and the adopted as, simultaneously, the institute
that operates the rupture of the biological affiliation bond existing between the adopted and their

natural family.
Adoption aims, essentially, to replace the natural family with the adoptive family.
The bond of adoption has evolved over time in terms of how
can be constituted, both in terms of the aims pursued by its constitution. In law
Roman law was widely used and could be established by contract and by will or
by decree of the curia. Its main purpose was to ensure the succession of the adopter by
adopted.
Like other legal institutes, its acceptance depended on the
religious conceptions and the political options of a certain historical moment. The
the predominance of Christianity almost completely eliminated adoption during that time
medieval and until the French Revolution. Muslim law also rejects it, for
to understand that it contradicts the primacy that should be given to blood ties, although
establish the institution of 'Kafala', which is related to it and consists of placing children
in places of storage.
The Napoleonic Civil Code of the early 19th century reintroduced adoption,
albeit in a very restricted manner. However, the first Portuguese Civil Code did not
it allowed the adoption, as it was understood that it was "way outside the customs of the Kingdom

».
Only with the entry into force of the current Civil Code did the institute reappear.

adoption, but still with a whole set of strict legal conditions regarding the
marital status of married adopters, the duration of the marriage, the non-existence of
children, etc.. The Civil Code also established a distinction between full adoption and adoption

restricted, which is a form of limited legal effects.

In recent decades, the evolution of adoption has been notable in the sense of being it
used so much in the interest of adopters to see, through it, their desire fulfilled
create bonds identical to those of parentage in relation to a minor who is not biologically
your son, as in the interest of the adopted one, by allowing him to find a family
substitute that best assumes the function of progeniture.
The adoption that fully integrates the adopted person into the adoptive family's life is called

by the doctrine as legitimating adoption.

However, the guiding principle of the entire adoption institute, whether in
international conventions in the legal systems of various countries, is that the
The primary purpose of adoption is to protect the 'best interest of the child'.
The evolution is moving in the direction not only of taking into account the well-being of the child but

still the guarantee of the defense of children's rights as individuality, principle

of the dignity of the human person.
There are different established solutions regarding the competent authority to authorize

adoption: some states allow it to be handled by administrative authorities,

while other states, like the Angolan state, grant exclusive competence to
judicial authority.
In the legal systems of socialist countries, great emphasis was placed on adoption.
seeking to avoid dramatic situations created by war and by
social disturbances experienced, which resulted in the loss of numerous human lives and in
disaggregate from a large number of families.
Adoption has also been a subject in the economically more developed countries.
new legal regulation that extended its legal effects and simplified the
your conditionalities.
As a rule, the adoption process begins with a procedure
administrative by the social assistance services that initially do
a delivery of the child to the future adopters, referred to as a procedure
pre-adoptive, to assess the degree of suitability of these for the formation of the future
adoption link.
 The child is entrusted to the selected person or couple for adoption by a
determined period, which serves as a test for the success of the adoption. This system is provided
in Portuguese, Spanish and Italian law.
In the current Portuguese Civil Code, the identity of the adopter, in principle, cannot
to be revealed to the biological parents of the adopted, to prevent them from coming
subsequently intervening in the relationships between adopter and adoptee. In other legislations, it is the

biological mother who prohibits the revelation of her identity hiding before the
society the fact of her motherhood.
The institute of adoption, like other family law matters, has been the subject of
controversy, given the very development of issues brought about by the evolution of
own society.
Thus, to provide a legal solution to the situation of the 'carrier mother' or 'mother of

rental of a fertilized egg originating from another woman and fertilized by her husband,
the surrogate mother is obliged to develop in herself the entire process of gestation of the

embryo and fetus until the moment of delivery and consequent birth of the child, has
it is coming to be understood that the child born should remain connected to the donor woman of the

egg but did not generate, by the bond of adoption, renouncing the carrier mother who
supported the period of gestation and childbirth, to any rights as a biological mother.
The claim of homosexual couples has been the subject of intense controversy.
they will be allowed to adopt a child. Even in countries where it is already recognized
some rights for homosexual couples, namely the right to marry,
the right to adoption is denied to both members of the union, as it is understood that such
harmful adoption to the child's natural balance that would confront existence
simultaneous of two fathers or two mothers.

The socio-legal reality of Angola

Angola is a significant example of the repercussions of negative effects of
losses suffered during the liberation struggles, by the phenomenon of decolonization and by the

the ongoing war situation that followed, regarding the family situation of thousands of
children.
 to the marital status of the adopters, the duration of the marriage, the non
existence of children, etc.. The Civil Code also established the distinction between adoption
full adoption and restricted adoption, which is a form of limited legal effects.

In recent decades, the evolution of adoption has been notable in the sense of being it
used so much in the interest of the adopters to see, through it, their desire fulfilled to
create ties identical to those of parenthood in relation to a minor who is not biologically related

your son, as in the interest of the adopted one, for allowing him to find a family
substitute that best assumes the own function of the offspring.
The adoption that fully integrates the adopted person into the adoptive family's household is designated

by the doctrine as legitimating adoption.

However, the guiding principle of the entire adoption institute, whether in the
international conventions in the legal systems of various countries, is that the
The primary purpose of adoption is to protect the "best interest of the child".
The evolution goes in the direction of not only taking into account the well-being of the child but

still the guarantee of the defense of children's rights as individuality, principle

of the dignity of the human person.
The established solutions differ regarding the competent authority to grant authorization.

adoption: some states allow it to be handled by administrative authorities,

while other states, such as the Angolan state, confer exclusive competence to
judicial authority.
In the legal systems of socialist countries, great scope was given to adoption,
trying to avoid dramatic situations created by war and by
social disturbances experienced, which resulted in the loss of numerous human lives and in the
disaggregate from a large number of families.
In the more economically developed countries, adoption was also a subject of
new legal regulation that has come to expand its legal effects and simplify the
your conditionings.
As a rule, the adoption process begins with a procedure
administrative by the social assistance services that initially carry out
Cláudia Lima Marques—"The Hague Convention of 1993 and the ECA represent
a new perspective on international adoption, now focused on human rights of
child, in its well-being and in its best interest. This overcomes the previous view,
focused on the family’s property interests, in the eventual right to procreation
of adoptive parents and their interests in the continuation of the family. The post-interpretation

the modern principle of the child's best interest today must include the realization of
your fundamental rights of cultural identity." Studies in honor of Prof.
Magalhães Colaço Vol. I, p. 281.
(2) Cláudia Lima Marques—same, p. 281.
a delivery of the child to the future adoptive parents, referred to as a procedure
pre-adoptive, to assess the degree of suitability of these for the constitution of the future
adoption link.
The minor is entrusted to the person or couple selected for adoption by a
a determined period, which serves as a test for the success of the adoption. This system is anticipated

in Portuguese, Spanish, and Italian law.

In the current Portuguese Civil Code, the identity of the adopter, in principle, cannot
to be revealed to the biological parents of the adopted person, to prevent them from coming

subsequently intervening in the relations between the adopter and the adopted. In other legislations, it is the

biological mother who forbids her identity to be revealed, hiding before the
society the fact of her motherhood.
The institution of adoption, like other family law matters, has been the subject of
controversy, given the very development of issues brought by the evolution of
own society.
Thus, to provide a legal solution to the situation of the 'carrier mother' or 'mother of

rental of a fertilized egg originating from another woman and fertilized by her husband,
requiring the surrogate mother to develop in herself the entire gestation process of the
embryo and fetus until the moment of birth and subsequent delivery of the child, has
it is coming to be understood that the child born should be linked to the woman donor of
egg but that did not generate, due to the bond of adoption, renouncing the laying mother who
supported the period of gestation and childbirth, to any rights as a biological mother.
The claim of homosexual couples has been the subject of heated controversy.
they are allowed to adopt a child. Even in countries where they are already recognized
some rights for same-sex couples, namely the right to marry,
the right to adoption is denied to both members of the union, as it is understood that such
harmful adoption to the natural balance of the child that would confront existence.
simultaneous of two fathers or two mothers.

The socio-legal reality of Angola

Angola is a significant example of the repercussions of negative effects of the
losses suffered during the liberation struggles, due to the phenomenon of decolonization and by

the ongoing war situation that followed, regarding the family situation of thousands of
children.
The number of minors whose parents have died or disappeared, or who have been
abandoned by their parents is, as we all know, tremendously high.
So much so that already in 1980, the urgent need to change the law was felt.
revoke the Civil Code, which, in matters of adoption, was not in agreement with the
needs then experienced. Therefore, Law No. 7/80 was published on August 27.
from the Adoption and Placement of Minors), which revoked articles 1973 to 2002 of
Civil Code.
As stated in the respective preamble, it "sought to mitigate the effects that,
about the lives of thousands of children in our country, had the two wars of
National Liberation, casting them into orphanhood and abandonment (...)". It aimed to broaden the
adoption institute in order to correspond to the new socio-economic conditions
existing family members, simplifying the procedural mechanism, without however minimizing
the importance of judicial intervention.
Law No. 7/80 was revoked by Article 10, paragraph g) of Law No. 1/88 in part
regarding adoption (which was in its Chapters I and II), although, fundamentally,
this law would be integrated into the new Family Code. And Law No. 19/96 of 19
of April, in its art. 28, repealed Chapter III of Law No. 7/80, so this law is
totally repealed.
It is important to highlight that the bond of adoption has greatly deepened in the law.
current, since soon in art. 8 of the Family Code, kinship by ties of
blood relative by adoption.
 Now, known the extreme relevance that kinship by blood ties
in the traditional Angolan family, one can gauge what this meant
equalization.
The expansion of the institution of adoption has not been significant in our country.

Traditional Angolan society is not unfamiliar with the institution of adoption, still
that it is little practiced. Adoption is subject to approval by the family of
adoptive to the act of adoption. But, once consent is obtained and the adoption is carried out,

the adopted person becomes integrated as a member of the family for all purposes. The
the scarcity of adoption cases brought to the judicial instances may, in our view, have
various justifications.
First of all, the fact that the very concept of "child" has, in the family
traditional, a broader scope than in positive law. It is called and
considered as a child, the child of a brother or sister included in the biological family,

as if it were the direct heir.

It often happens that when the real father or the real mother dies,
it's the uncle or the older brother or the aunt or the older sister, respectively, who
they assume the role of the parent. In any case, it is the very structure of
extended family that takes on the responsibility of filling the void created and bringing to the

place of "son" who needs protection, without the need to go beyond the
family circle looking for a minor to be adopted.
The "de facto" adoption that occurs outside the intervention of
courts, just like in other family law institutions, what is the product of
experience of one's own social environment, where access to formal documentation is scarce and to

legal assistance, whether for cultural reasons or economic reasons.

However, despite this circumstantiality, adoption has, from the point of view
sociological, a great impact on the Angolan legal order, as it can be used
how the most suitable way is to integrate children victims of into new families
war situation whose parents have disappeared, assimilating them to natural children and
allowing adopters to establish a voluntarily chosen affiliation bond, whether
for lack of offspring, for special affection for a child, or to establish
new relationship with the child of the other spouse, or another valid reason.
 The most common ways used to fraudulently replace the institute
from adoption are:

the sending of children abroad, removing them from the protection of the State
of origin;
the criminal trafficking of children for adoption, through compensation
financial
the false birth certificate with a declaration of parentage made by the adopter.
The adoption is enshrined, for the first time, in a constitutional document, in
scope of the protective laws for children, as the recent Constitution provides in its article.
80.° (Childhood), no. 4: "The State regulates the adoption of children, promoting their
integration in a healthy family environment and ensuring its overall development.
Legal content of adoption
Article 197 of the Family Code defines adoption as the establishment between
The adopted and the adopter have a family relationship equivalent to that which connects children to their natural parents.

Thus, the concept of full adoption and restricted adoption that is accepted was set aside.

in other legal systems. Once adoption is established, its respective effects

They are produced entirely between the adoptive parent and the adopted.

The bond of adoption, due to the importance of the effects that derive from it, is

dependent on the observance of strict legal requirements and must be

mandatory constituted by the intervention of the court, through the act
solemn legal of a sentence.
Article 212, No. 1 establishes that adoption is constituted by a judicial sentence.
issued in a voluntary jurisdiction process. The judgment therefore has constitutive effect.
The constitution of adoption only produces effects from the final judgment of the sentence.
and does not produce retroactive effects, that is, it only produces effects ex nunc.

To protect the interests at stake (first and foremost, the interest of the child,
but also that of the adoptive parents themselves, as well as those of the biological family), it is through the

through judicial decision established in law that adoption can validly arise. It is understood that

it is a judicial concession act. It is not possible, therefore, to establish adoption through

contractual or by will.
 Once the status of the adopted person is established and they are integrated into the new adoptive family,

The adoption can hardly be revoked by the will of the parties, as provided in article.
211.° of the Family Code. The irrevocability of adoption remains even if
alter the family conditions of the adopter, such as the occurrence of children.
a) Legal requirements of the adopter
It is rigorously required by law that, in relation to the adopter or adopters, if

check certain subjective requirements that demonstrate your suitability for

exercise the legal duties conferred by law, replacing the natural parent.
Upon being adopted, as is obvious, no conditions are required for all to be assigned to him.
the rights and duties of parents on the part of the adopters.
But the artificial creation of a bond as important as that of parenthood does
demand all caution in verifying the legal conditions of the adopter.
In terms of the adoptive person's aspect itself, the capacity for investment in the
The new legal situation is defined in Article 199, paragraph 1 of the Family Code, requiring
the adopter must be over 25 years old and in full enjoyment of civil rights,
have moral integrity and good social behavior, especially in relationships
family members, and economic capacity to provide for the sustenance and education of the adopted.

The law also requires that the adopter has mental and physical health, seeking this out.
way that the adopter may come to fulfill the high burden of creation and education of
adoptive child who is a mentally sane person, fully enjoying their faculties
mental.
The age difference between the adopter and the adopted must be at least 16.
years, which implies that there must be the minimum space considered between the two to
one generation. Unlike some legal systems, there are no age limits starting from
of which the adoption is prohibited.
The law allows for the requirements of paragraphs c) and e) of article 199 to be waived.
that respect economic capacity and age difference, when the adoption is concerned
respect for the child of the spouse or the partner in a de facto union.
In relation to the adopters, the law also imposes legal conditions that respect the
your marital status and your actual recognized marital and common-law situation.
 In this way, for the double adoption, which is obligatorily established,
simultaneously, by both spouses or by both partners in a de facto union, the
Article 205, paragraph a) of the Family Code imposes that:
the spouses cannot be separated in fact;
the partners in a de facto union must live in a situation that fulfills the
legal prerequisites for recognition.
The reason for these conditions lies in the fact that the legislator wants the adopted person

can be received into the new family by a couple in conditions of fact and of law that
allow both to take on the role of true parents, converging their wills
adopters and adopted for the establishment of the new bond. The intention is to follow the model
from the biological family and that the adoptive couple provides guarantees of stability,

representing a welcoming home, with material and spiritual communion.

The law also allows for single-person adoption, which as the term indicates, is done
for one person in two distinct situations—art. 205, paragraphs b) and c):
when it concerns the child of the spouse or the partner in a de facto union;
when done by an unmarried person.
In the first case, the adoption is made in the interest of strengthening the family.
nuclear, allowing the establishment of the parental bond between the spouse or
A partner in a common-law relationship is a minor who is the child of the other member of the couple.

In the second case, it must be about a single person, single, widowed, or divorced, who does not
live in a common-law relationship, and that in order to establish a single-parent family with the adopted child,

demonstrate willingness and emotional availability, in addition to the other legal requirements, to come to

replace the minor's parentage.

Although our law does not prohibit it, omitting the reference to this issue,
we understand that adoption among relatives by blood ties should not be allowed,
at least in cases where the proximity of kinship is, by force of law,
marital impediment. (5) Otherwise, a bond of filiation would be established.
adoptive where the law seeks to eliminate the possibility of a natural parentage connection.
b) Legal requirements of the adopted
 From the adopted person's side, the law only requires that the adopted person be a minor, according to

with article 200, the adopted must be under 18 years of age. The state of
Adoptability necessarily refers to an age below 18 years.
However, we understand that this requirement of adoptability must refer to the
the date of the filing of the action and not the date of the pronouncement of the judgment constituting the bond.

The law does not foresee any conditions of a physical, psychological, economic or other nature,

regarding the adoption.

The law hardly requires that any mandatory period be verified.
coexistence between the adopter and the adopted before the establishment of the bond, very
although, in reality, this almost always happens, as usually the delivery of the child is done
by the social assistance entity or was processed without formalities resulting from
factual circumstances.

Consent to adoption
The willingness to adopt on the part of the adopter is manifested by the very proposal.
of the respective action but it has to be complemented by the expression of will of the
legal representatives of the adopted person, or in their absence by close relatives and by him

self if already completed 10 years of age.

Once that, as we will see, the establishment of the adoption bond will put an end to the
family relations between the adoptee and their natural parents and relatives are not necessary
emphasize the relevance that arises for the situation of the minor in relation to

to their natural family. Hence the need for the provision of free consent
awareness on the part of those who must grant it by law.
When the law imposes the existence of consent for adoption, this is a requirement.
essential to the validity of the legal act.
a) Waiver of consent
The law dispenses with the consent of the parents and other relatives,
in the following specific cases: "Of the minor in a situation of abandonment, as it comes

defined in no. 2 of article 200.0 of the Family Code, that is, that in relation to which
the parents and other relatives have clearly shown disinterest in the exercise of
your duties for a period exceeding one year.
 Abandonment can occur because the parents did not establish, from birth
of the child, the bond of filiation, nor the possession of the status of a child. It is necessary
that the complex of duties of parents, such as custody, supervision, and upbringing and education
of the child, is not being exercised. It may also happen that, although initially the parents
they have performed their duties, cease to do so from a certain moment,
ceasing to provide material and moral assistance to the son.
The concept of abandonment involves the lack of moral and material assistance both by
part of the parents of the minor as well as other relatives that make up the so-called
parental family
Abandonment materializes when all the duties that encompass the concept of
parental authority ceases to be, or was never exercised, by the respective holder,
highlighting a break in the family relationship. Due to the legal consequences of such
behavior, which is expressed both in the institute of adoption and in that of guardianship, the

abandonment must be declared by a judicial decision.

He is different from the concept of negligence that involves a behavior
insufficient, harmful or wrong of the parent in relation to their duties towards the
son.
The situation of abandonment occurs due to the omission of those responsible in the exercise of

paternal authority in assuming their parental duties towards the minor,

omission that is also verified on the part of other relatives.
The situation of abandonment cannot be considered verified if it derives from
force majeure circumstances, such as the wartime situation experienced in the Country. The
abandonment must result from intentional malicious conduct or merely negligent conduct,
part of those to whom the law assigns the duties of guardianship,
Adoption - In Italian legislation, this duty extends until
relatives in the 4th degree, p. 395—Family Law. IPSOA, 1996.
surveillance and assistance to the minor, and who are the parents and other close relatives
of the minor. Cases of force majeure that prevent the exercise of parental authority have
that are of a temporary nature and duly remedied when the conditions of
life returns to normal.
 The abandonment must result objectively from the absence of anyone who provides for the minor.

treatment provided for in the law.

Abandonment is a factual situation whose verification must be declared by the

tribunal according to the specific case under consideration.
When declared a minor in a situation of abandonment, the law dispenses with consent.
by either of the parents or other relatives of the minor—art. 200, n. 1,
item b) of the Family Code.
When the minor is in a situation of abandonment, the law provides that measures be taken regarding them.

guardianship was established. If it is not possible to appoint a guardian, as we will see later, the

minor will be declared abandoned and shall be delivered to an establishment of

assistance.
2. The youngest child of unknown parents
If both parents are unknown due to paternity not being established,
there is also no need to obtain consent for adoption.
a) Adoption by parental consent
The law allows for the adoption of a minor whose parents give their consent.
consent to adoption. The consent must be given by the parent in a way
personal and direct, with awareness and free will without coercion and informed—art. 201.
Family Code.
Consent can be given by the parent before the court or by
means of authentic document that identifies the adopter.
prescribes Article 213 of the cited Code.
The consent of the parent is a sine qua non condition for the viability of the request.
of adoption and the court cannot dispense with it.
Consent means the relinquishment of the legal situation regarding the state.
civil of father or mother, so such declaration of will must be received with the
due guarantees by the court.
Parental consent cannot be waived or replaced by
tribunal. b) Consent of the minor
The law requires that a minor who has reached the age of 10, even if such
occurs after the action has been proposed, provide your consent to the adoption—art.
203.° of the Family Code. This consent is also essential for validity
the act must be performed in person by the minor, after being properly clarified
by the court of the scope of the legal act of adoption and its consequences in your life
familiar.
c) Consent by other relatives
If both parents are absent due to death, absence, or incapacity, it provides for the
Article 214 of the Family Code states that consent to adoption must be given in the presence of the

tribunal by other relatives of the minor, indicating, in order of preference, the grandparents, the
older brothers and the uncles.
Under equal circumstances, the law indicates that preference will be given to the relative who

having the minor in your care. If guardianship is established, it should be the guardian who provides the

consent. In the case of the minor being in the care of a person who is not a relative,
we understand that although the law does not expressly provide for it, it should also be
hearing.
In these cases, however, the Judge may dispense with the provision of consent from
parents of the minor when the provision established in item 2 of article 214 is verified.
a) when considering it convenient for the minor;
b) when there is great difficulty in obtaining it.
In the first case, the Judge must decide according to his prudent discretion.
properly justifying the factual grounds that lead them to waive the
consent of the minor's relatives to adopt.
In the second case, the decision made must also be rooted in
concrete circumstances that prevent the summons to court of the relatives of the
minor, whether due to being unaware of their whereabouts or being out of the country,
etc. When this occurs, it is for the court to explain why the dispensation was granted.
consent of the minor's relatives.
Authorization of international adoption
The Family Code added an important legal conditionality to
adoption, imposing the intervention of the highest political body, the Assembly of

People, today National Assembly, in the adoption process when the adopter is
foreign citizen.
 Article 204 requires prior authorization from the People's Assembly first.
of the establishment of the adoption bond of a minor of Angolan nationality by
of a citizen from another country.

This standard has a dual purpose.

First of all, try to protect the minor who, through adoption, may come to
lose your original nationality by acquiring the nationality of the adopter.
Law no. 1/05 of July 1 (Nationality Law) in its article 15, paragraph 1, item
d) provides for the loss of Angolan nationality, establishing: "those adopted by citizens
foreigners, upon reaching adulthood, express the intention not to be
Angolans.
The aim of this legal provision was also to protect the minor to the extent that
what would constitute an obstacle to the international trafficking of children from the least

developed for the wealthiest countries through less scrupulous processes.

As is known, demographic rates show that the most
developed show a weak (null or even negative) growth of
population, therefore having fewer children available for adoption.
We are convinced that in Angola the illegal exit of minors (without adequate
family and social protection) abroad poses a greater threat than the
possibility of them being adopted by foreign citizens, through a
legal procedure.

Given the increase of responsibilities assigned to the National Assembly and the
the fact that Angola has adhered to important international instruments, we understand to be
this legal imposition is unjustified and has been resulting in the delay of
adoption process.
In Brazilian law, in the ECA (Statute of Children and Adolescents) there are
specific rules established for the adoption of a Brazilian child by an adopter
foreigner or residing outside the country, involving the certification that is
enabled for adoption and that he has psychosocial conditions to carry it out.
By the way, it should be noted that Angola, by Resolution No. 22/02 of August 13,
National Assembly, adhered to the Optional Protocol to the Convention on the Rights of
Child relating to the Sale of Children, Prostitution, and Child Pornography, which in its
Article 3.° mandates criminal punishment for "ii—the inducement of consent in a way
unlawful, as an intermediary for the adoption of a child (...)" and that imposes the following:
5—States Parties must ensure that all people
involved in the adoption of a child act in accordance with the
international legal instruments applicable.
In the definition of trafficking, it should be understood: "to treat a child as if a
object was, object to make money, to obtain favors, trips, gifts,
donations, status and not seeing the child and their well-being as the end of adoption but as
a means for some individual, group, or national advantage.
Like the Hague Convention, relating to the Protection and Cooperation in Matters of
International Adoption, from May 1993, is part of Angolan internal law by
Resolution No. 54/12 of the National Assembly, as we mentioned, will be necessary
proceed to adapt the legal norms to this important International Convention.
It allows a child citizen of one state to find in another foreign state
a new family in which it fully integrates, taking into account the best interest of
child and the defense of their fundamental rights, preventing them from being subjected to kidnapping,

sale or illicit trafficking.

In the preliminary phase of the adoption process, it must be verified that there is no

possibility of placing the child in the State of origin.

It is essential that there is free consent and properly advised by
part of the people who should provide it and that there were no undue payments.
It must still be certified that the foreign adoptive parents are in the conditions
legal to proceed with the adoption and that the adopted child will have authorization to rescind with

permanence in this State.

Article 4 imposes rules for the granting of consent to adoption by the
people and institutions that must provide it, as well as the consent of the child,
emphasizing in paragraph d) the need for "the consent not to have been obtained
through payment or compensation of any kind.
 The United Nations Convention on the Rights of the Child, in its article 21.
provides that adoption must be "a) (...) authorized by the competent authorities (...) and
that interested people have given their informed consent,
consent; d) (...) ensure that in the case of adoption in another country, the placement does not

allows undue financial benefits to third parties that intervene in it.

It is essential in all types of adoption consent to ensure that it is not
provided under coercion or with financial compensation for intermediaries, or for
the one who gives consent.
Legal types of adoption
Taking as a reference the simultaneous or individual way in which it is operated the
adoption, the law provides for two types of adoption:

double adoption
single-person adoption
The first type of adoption arises when there are two adopters who, in a way
simultaneously and jointly, will adopt the same minimum.
Double adoption requires, as we mentioned earlier, that the adopters are in
married and not separated in fact, or living in union
de facto and that it meets the legal requirements for recognition.
In this type of adoption, the law requires that the adoption request be made jointly.
and that both adopters fulfill; each of them, the subjective requirements that are
taxes in article 199 of the Family Code.
The individual adoption is carried out by a single adopter, but it can involve two.
entirely distinct situations.
In the first case, the individual adoption is carried out by only one spouse or one only.

partner in a domestic partnership and it must necessarily apply to a minor

child of the other spouse or partner in a common-law relationship.
In this subtype of single-person adoption, the law only requires that the adopter meets the

requirements of paragraphs a), b) and d) of no. 1 of article 199., disregarding paragraphs c) and e)
which refer to the economic capacity and the age difference between the adopter and the adopted,
as set out in item 2 of this article. Only the requirement of minimum age was maintained.
25 years old and of civil capacity, the conditions of moral integrity and mental and physical health.
 This type of adoption seeks to harmonize the situation of the family unit.
putting in place of the absent natural parent, the spouse or partner of
progenitor with whom the minor cohabits.
In the other subtype of single-person adoption, the adopter is a single person who is
in the condition of unmarried, according to the model of the single-parent family and may occur

about any minor who is legally in a position to be adopted.

Legal effects of adoption.

As we initially mentioned, the constitution of adoption assimilates the minor
adopted to the natural and biological child, and from it arises the fullness of effects of the own

natural affiliation. Article 198, no. 1 of the Family Code clearly states that the
the rights and reciprocal duties between the adopter and the adopted are the same as those that exist

between parents and children.

Through the establishment of the adoption bond, a relationship is created between the adopter and

adopted a situation entirely similar to that which unites a parent to their biological child,
without any form of discrimination against the natural child.
The adopted person becomes integrated into the adoptive family's household as a child and
the ties of affiliation and kinship with the natural family are severed.
It is worth emphasizing, as we have seen, that in light of the Family Code the effects are always

full in relation to both the adopter and the adopted, only varying in the case of adoption of
child of the spouse or partner in a common-law union. In which the rights are preserved
rights of the other parent who is not replaced.
Consequently, the following effects of adoption can be established: a) In
relation to the adopter
In the case of joint adoption, the adopters exercise full paternal authority.
as if they were the natural parents.
When it comes to the individual adoption of the spouse's or partner's child
In a de facto union, parental authority is exercised together with it.
When it comes to single-person adoption by an unmarried person, the authority
paternity shall be exercised exclusively by the adopter. This is stated in Article 207, paragraph 1 of

Family Code.
 The adopters have the right to pass their surname to the adoptee, and although the law
or does not explicitly state, the right to choose the adopted person's name, if the
the court may authorize it, if it considers that it is in the best interest of the minor.

There is an obligation of food by the adoptive parents, as established by the article.

249.°, n.° 1 of the Family Code. From the perspective of inheritance law, the adopter
is susceptible to the adopted one as its ascendant.

The ties of kinship and affinity by adoption constitute an impediment.

matrimonial just like that of natural filiation.
The bond of adoption extends to the adoptive family's members, who integrate the adopted person.

as your new member, beginning to have with him the same family ties c
affinity that would exist with a natural child of the adopter—art. 198, n.2.
b) Regarding what was adopted

Parental rights and duties are of a reciprocal nature: what was said
As for the effects that are produced in relation to the adopters, it applies, in a sense
inverse, to the adopted.
This is assimilated to the natural child, enjoying the same rights and duties, and
there is an obligation of food in relation to the adopter as with other descendants
art. 249, n. 2, letter b). On the other hand, it becomes the successor heir of the adopter and
other relatives of this, in the class of descendants.
In turn, the descendants of the adopted individual become integrated into the family of
adopter, as established by article 198, paragraph 2 of the Family Code.
The adopted person begins to use, by their own right, the surname of the adopter or adopters,

depending on whether it is a single or double adoption (art. 208 of the Code of

Family.
The constitution of the adoption bond can also derive from the fact contained in
Article 209 of the Family Code, which provides for a new birth record to be issued
of the adopted one, allowing this new seat to completely replace the previous one,
making the adopter or adopters appear as the father or mother of the adopted child.

In this way, the previous record regarding biological affiliation has been made hidden.
adopted.
 The court must take into account the specific circumstances of the particular case and, if
to understand being like this is more beneficial for the minor and as long as the interested parties come to it

to request, you may authorize the replacement of the birth seat.

If that happens, the previous record will be considered secret to the
effects of the law. This means that it cannot be made publicly known,
as happens with the other acts of the civil registry, without express authorization from the

public authority that oversees the registration or by court order.

The violation of this duty entails criminal and civil liability for the offender.
unlawful conduct. c) Right of the adopted to identity
It has been discussed whether or not to allow the adopted person to have knowledge of their

situation of an adopted child, with the position of those who argue that it will prevail
better for the minor, to be unaware that they are not the biological child of the adopter or adopters.

The question only arises if the minor is adopted shortly after their birth or
still at a tender age, so that they cannot retain the memory of their
parents or natural relatives.
It is feared that the knowledge of the absence of a blood bond may create
to adopt identity problems and harm your emotional relationship with the
your adoptive parents, seeking to protect them from such eventualities.
But in certain legal systems, it is done differently and it is allowed for the
adopted, after reaching adulthood, full access to their civil registration and having
knowledge of all the facts contained herein. Today the position arises that the law
knowledge of one's own origin and identity should prevail.
Moreover, it is guaranteed to the child, in Article 8 of the United Nations Convention on

the Rights of the Child, "the right to preserve their identity, including the
nationality, name, and family relations.
The right to identity is currently considered a fundamental right of
human person. Once adoption is carried out, the legal ties with the family are extinguished
natural, the adopted one, if desired, should have access to these identifying elements of the
your person and family and national origin.
d) In relation to the natural family
In relation to the natural family, adoption will produce the extinction of the bond.
 Article 206 of the Family Code states that dual adoption extinguishes the
kinship ties between the adopted person and their natural relatives. The effects of extinction
The bond that links the adopted child to the biological family is also created in adoption.

sole proprietorship, but this extinction only occurs in relation to the parent that is being replaced
and respective natural family – article 207, number 1 of the Family Code.
The n.° 2 of this article 207.° took care to clarify that the relationships remain
relationship between the adopted child and the natural father or mother that is not replaced by the adoptive parent.

The only effect that remains with respect to the natural family is that of the
parentheses continue to constitute a marital impediment.
Another important effect resulting from adoption is to prevent the parent
natural may come to make a declaration of affiliation in relation to the adopted one.
Once the bond of adoptive parentage is established between the adopter and the adoptee, child

of unknown parents, they cannot later claim their rights

paternal, establishing paternity or maternity through a declaration - art.
202 degrees.
Although the law does not expressly state it, and by majority reason, it is not allowed.
the proposal for the action for the judicial establishment of affiliation.
The adoption process follows the formalities and procedures described in the articles.
212.° e ss. of the Family Code which, in this part, came to complete the provisions in art.
84.° e ss. of Decree n.° 417/71. It aims to ensure compliance with the law, in order to thus
to protect the important family interests at stake.
Article 212 maintains, in its numbers 1, 2, and 3, what was already included in Article 84 and subsequent articles.

Decree No. 417/71, as the process to be used is that of voluntary jurisdiction, as far as
that the judge is given powers to guide the process towards obtaining all
the material truth.
Depending on the cases, the adoption process must be proposed simultaneously.
by both adopters, in the case of joint adoption, or by a single adopter, in the case of adoption.
single-member.
In the case of dual adoption, we are faced with a situation of necessary joint litigation.

Asset in which the legitimacy for the action must be ensured by intervention.
jointly by both adopters—art. 28, n. 1 of the Code of Civil Procedure.
 The judicial inquiry is an essential element for the decision to be rendered by the judge.
especially since the law does not provide for a prior trial period of experience.
The inquiry should focus on:
the factual assumptions that are part of the requirements set forth in item b),
c) and d) of article 199 of the Family Code, which pertain to the adopters;
the factual assumptions regarding the personal and family situation of the adopted person,

including, if possible, information about your health status, physical development

and psychic, possible disqualifications, family characteristics regarding identity and
number of siblings, country of origin, religious integration, etc.
However, the sentence that is pronounced is of a contentious nature and not a gracious one.
for it is constitutive of a new right and can only be altered in specific cases
provided for in the law.

Two important changes are contained in article 212. One is number 4, which mandates
that the sentence describes in detail the facts and circumstances in which
establishes and specifies the reasons that determine the establishment of adoption.
Attention must be paid to paragraph 5 of this article 212, which makes it mandatory that, in the case

of the adoption of an abandoned minor, the sentence declares the situation of abandonment verified.

The declaration of abandonment makes the consent of the parents or others unnecessary.
parents of the minor, but, due to the consequences that arise from the decision, it is necessary to clarify

with greater rigor, under penalty of nullity, that the minor is abandoned.
In many legal systems, there is a procedure prior to adoption, which is
specifically aims at obtaining the judicial declaration of abandonment, in which
called to intervene the parents and relatives of the minor, if they are known and if it is
known your whereabouts.
The Family Code opted for a simpler solution, allowing for
the issue of the abandonment of the minor should be raised in the adoption action itself, and it should be

the judge of the case shall examine it carefully. Only having such statement in the own
In car cases, the court may dispense with consent.
 When the minor is not declared abandoned, the process will have to continue.
with the intervention of the parents, and, in their absence, of the other relatives, to come
to give or not give your consent.
Consent must be given in person before the
tribunal or through an authentic document identifying the person of the adopter
(art. 213 of the Family Code), consent given is only permitted by
means of document, in the case where the interested party does not reside in the jurisdiction of the court

to give consent.
It will have to be a declaration of free and conscious will made by someone
to have legitimacy for such, and that it should be issued after the declarant has been
properly clarified by the Judge of the legal effects of his declaration.
The Family Council may be called to intervene, optionally,
when the court deems it appropriate, in view of safeguarding the interest
of the minor—art. 215 of the Family Code.
Once the adoption ruling has become final, it is
mandatory subject to registration, as it involves the change of family status of
adopter and the adopted—art. 1, item c) of the Civil Registry Code.

Review of the adoption sentence.

As we have seen, once the adoption is established, it cannot be revoked by
the will of the parties, that is: by mere agreement between the adopter and the adopted it cannot be

the bond of adoptive parentage is annulled.

Notwithstanding, the law allows that, through two avenues, it may come to be declared without

this link effect: either by the review of the adoption sentence, in cases where the flaw
it may have occurred in the very act of establishing adoption, or by its revocation,
when later facts justify, by their gravity, that the bond, valid
in its constitution, it must cease to exist.
Both the review and the revocation of the adoption must be carried out through
judicial sentence, issued in its own process. They have standing to file the action.
of review of the adoption sentence, the adopter, in case of an essential error regarding the
person of the adopted, as well as when the one who should have given consent
did not provide it, or may have been coerced into providing it.

The review of an adoption sentence is, therefore, permitted due to facts that
invalidate the expressed will for the establishment of the bond by the adopter, in
essential reason for error regarding the person of the adopted person vitiating the statement made
by the adopter that intended to proceed with the adoption of a certain minor. The error
it is considered essential when it concerns qualities of a physical, psychic and
moral of the lesser that should be considered fundamental; on the other hand, it is necessary that the

mistake may also be excused on the part of the adopter, as established by Article 216.
Family Code.
It should also be acknowledged that there may be a review of the adoption sentence in the case of

simulation, that is, when the bond was established for a purpose different from the
foreseen in the law, which is to create a true bond between the adopter and the adopted
affiliation.
When the law requires consent, whether from the parents or from
other relatives or the adopted person themselves, their absence or the granting of consent with
the vice of will resulting from coercion can lead to the revision of a sentence, having
legitimacy for the action the person whose consent was lacking or whose will was vitiated
you, in the case of incapacity, the respective legal representative.
The deadline for the action to review a sentence is one year, according to Article 217.
of the Family Code, which is counted from the date of cessation of the vice of will
for error or coercion or from the date of knowledge of the adoption in the case of absence of

consent, as provided in paragraph 1, or when there is a lack of consent from the minor,
up to one year after reaching adulthood, as provided in number 2.0 the court must
always consider the interests of the minor and evaluate whether it is advisable or not that one
proceed with the review of the sentence that declared the adoption, even if it is verified that the

legal basis for the request for review.

Article 217, No. 3 gives broad decision-making power to the judge of the case to choose
or not by the dissolution of the bond, always needing to justify the decision made, of
agreement with the superior interests of the minor that are at stake.
 The annulment of the adoption produces retroactive effects, that is, ex tunc.
cancelling all effects it may have produced previously.

Revocation of the adoption sentence

The revocation of the adoption decree can be carried out when it is verified
any of the factual assumptions expressed in Article 218 of the Code of
Family and those that refer to facts subsequent to the formation of the bond.
It is worth noting that, just as with review, revocation is not imposed.
as a mandatory result, as the body of art. 218 mentions that it can result
two facts that you mention.
The facts that allow for the revocation of adoption are as follows:
a) the voluntary abandonment of the minor, or the submission of the minor by the adopter
you adopters, to a treatment incompatible with the situation of a child;
b) attack against life or serious attack against honor, whether due to malfunction of
the adopter wants from the adopted one;
c) absolute incompatibility between the adopter and the adopted, after the latter has reached the

majority.
The paragraph a) of art. 218, when mentioning the abandonment of the minor, has the same

legal scope of article 200, number 2, which refers to the abandonment of the minor by the
natural parents.
The last part of item a) was added after the public consultation to which it
proceeded before the approval of the Family Code, and refers to the fact that the adopted
not to be subjected, by the adopter, to a treatment compatible with its various
aspects, with that which must be given to a son.
This was intended to avoid situations in which the adopted minor may come to.
to be used as unpaid labor, especially in domestic work or
others.
Such provision may still be applied when the adopter establishes with the
adopted a sexual relationship incompatible with father-child relationships.
Subsection b) provides for cases of extreme gravity, such as attempts against life.
it is a serious offense against honor, whether by the part of the adopter or by the part of the adopted.
 Subparagraph c) refers to the case of arising between the adopter and the adopted.

irreducible incompatibility so profound and irreparable that it ceases to exist

the reason for maintaining the bond of adoption. The law requires that this happens after
the adopted person has reached adulthood.
They have the legitimacy to request the court to revoke the adoption sentence.
adopter or the adopted (by themselves or, if minor, through their representative
legal, of the Public Prosecutor's Office or any legitimate heir), when sc verified
attack on the life or serious attack on the honor of the adopter or the adopted.
As already pointed out in the case of sentence review, revocation can operate-
if and when the court finds it appropriate, according to the specific circumstances
of the case and taking into account the interest of the parties.

The revocation of the adoption decree only produces effects ex nunc, that is, from the moment

of the respective final judgment, the previous effects remaining valid

produced.
Once the review or revocation of the adoption has been decreed, Article 219 of the Code
Family law provides for the adoption of measures to protect the adopted minor.
The natural parents should be heard about the restoration of the
link of natural affiliation, in accordance with item a) of this article 219.
When such reinstatement is not possible, the court must send a certificate
to the sentence to the representative of the Public Prosecutor's Office at the competent court for the
institution of the guardianship of the minor—letter b) of the same article.

Notwithstanding these measures, the court must always decide provisionally.

about the guardianship and fate of the minor, until there is someone to assume the exercise of

paternal authority.

Conflict rules.
The Civil Code in its article 60 provides that, as a rule, it applies to the establishment of parentage.

adopts the personal law of the adopter.

However, considering the protection of children's rights, national law will be
the adopted applicable to the legal conditions for the establishment of the adoption bond by
part of the adopted. The lex fori will be applicable to the adoption process which is, in principle, that of

home of the adopted in the case of international adoption.

They are public order rules that must be followed.
In this case, as a rule, the adoption decree must be reviewed in the adopter's country.
to produce legal effects.

CHAPTER 19/
THE GUARDIANSHIP

Evolution of the institute of guardianship and its content.

Tutorship is a guardianship institution that comes from Roman law. Tutorship applies
about minors and other incapable persons, providing protection for their person and their assets. For

natural law attributes to the father and mother the parental authority to fulfill the incapacity
of the minor children. But there are circumstances in which neither parent is in
conditions to exercise this authority. Hence, over time, recourse has been made
to the institution of guardianship.

In feudal law, it was the lord of the land who exercised the power of guardianship over the

minors born of your vassals.

In the 19th century, with the rise of the bourgeoisie, guardianship appears as a means

essential for the preservation of assets within the family, preventing that, with the
alienation of real estate assets, weakened the economic power of the family.
So the family council was called to intervene to safeguard interests
economic of the respective lineages.
From there and in the same vein of protecting the interest of the child, holder of
heritage integrated into the family, institutes such as the legal administration are created
of assets under judicial control and that of guardianship.

This institute primarily aimed at the preservation of family heritage and

There was a purpose in which private interest predominated.
The guardianship was an institution that applied when it was the woman who held the
goods, or if it was about a pubescent minor or one who was interdicted due to prodigality. It was also the case

of the widowed mother and of the mother of the child born out of wedlock, who did not have the
legal administration of the children's assets, without being assisted by an agency
control.
The Civil Code provided for the institution of property management in its articles.
1967 and following, transposed in the guardianship institute, assigning to the administrator of
he has the same rights and duties as the guardian.

The guardianship right is, in general terms, a right of incapacity.

In some legal systems, the institution of guardianship, like that of custody, is
extended for situations where one of the parents could exercise paternal authority,
involving the family council and the court in monitoring the
exercise of this authority.
The Family Code completely removed the institute of guardianship whenever a
both parents are in a position to exercise parental authority. In fact, when
studying this institute, we found that, in accordance with article 147 of the Code of
Family, in case of death, absence, incapacity, or impossibility of one of the parents,
It is up to the other parent to exercise sole parental authority.

The Family Code, when regulating guardianship rights—which, we reiterate, is a right

of incapacity—, refers not only to the guardianship of minors but also to that of the legally incapacitated adult

—art. 220., items a) and b).

However, we will limit our study to the protection of minors within the scope of relationships.

relatives.
The protection of the minor arises when there is a lack of a parent who exercises authority.

paternal, whether by death, or by not establishing paternity and maternity

of the minor, whether because the parents are absent or factually unable to do so.
exercise.
When mentioning the legal purpose of the institution of guardianship, Article 221 of the Code of

Family on the heading Ends of Guardianship states: 'Guardianship aims to provide for the
parental authority and the custody, education, development, and protection of interests
personal and property of minors.
The designation of the tutor will fill the absence of the child's natural representative.
progenitor, entrusting someone to perform these functions. The term guardianship derives from the
the Latin word tueri, which means "to defend" and "to protect." The minor under guardianship, in

in some legislations, it is designated as a ward.

The guardianship and public law
The institute of guardianship embedded in Family Law is, in its essence, an institute
of public law. The protection of minors is a function of the State itself, which comes
expressly stated in the Constitution.
Article 35 (Family, marriage, and filiation), item 6, states: 'The protection of'
children's rights, namely their comprehensive and harmonious education, the protection of
your health, living conditions, and education are an absolute priority of the family,
State and society.
In addition to this constitutional directive, article 80 (Childhood), paragraph 1 states: 'The
children have the right to special attention from the family, society, and the State, which in
close cooperation, they must ensure their broad protection against all forms of
abandonment, discrimination, oppression, exploitation and abusive exercise of authority in
family and in other institutions.
Therefore, for the protection of the unprotected minor, the State has the duty to intervene.

in the establishment of guardianship and throughout its operation and up to its

conclusion. The tutor holds a true public position under the supervision of an authority.
sovereignty (the court) and a body of a familial nature (the Family Council).
The principle underlying guardianship is that caring for, raising, and educating a minor is a

an eminently social duty that falls to the State to supervise or exercise, through
intermediary of the tutor or by their assistance and education bodies, in case of absence
of the parents or of whoever holds the position of tutor.

Today the constitutional principle that obliges the State to safeguard and protect all
child demands that, consequently, be created and put into operation the
organs that ensure such, and which are, first of all, the courts and, when
necessary, the bodies of

assistance that replaces parents or guardians. However, the guardian must be

chosen, preferably, from within the family of the minor, and act under the supervision of the State.
 It is the far preferable solution, because it will not take away from the minor the right to have

a family. The greater or lesser intervention of the State in the institutions of guardianship of

minors depends, thus, on the very political conception adopted, but in this institute
imperative norms of public law predominate, as the protection and defense of
a minor unable and in need of someone to fulfill the normal exercise of authority
paternal outweigh the other interests at stake.
Article 236 of the Family Code states in its paragraph 1 that "Guardianship must be
exercised in the interest of the ward and society." The legal purpose of the institute of
Guardianship is, therefore, the defense of the interests of the minor and the social environment in which he or she is inserted.

According to the legal systems, the institute of guardianship is closer to a

private nature institute, in which the court is limited to exercising the will of
parents or relatives or from an institute of a public nature, in which prevails the
court authority. It intervenes in the various phases of guardianship, designating the person
of the tutor, continuing the supervision of the guardianship, in the removal of the tutor and in the termination

of the protection.

This was the prevailing guidance in the Family Code, which assigns to the court
all the relevance in the institute of guardianship.

Classification of guardianship regarding the method of choosing the guardian.

The doctrine usually classifies guardianship, regarding the method of appointing the guardian,

in three categories:
a) testamentary guardianship;
b) legitimate guardianship;

c) appointed guardianship.

The testamentary guardianship is that which is established by will or other

authentic or authenticated document, drawn up as an act of last will by the father or
by the mother of the minor, in which a future guardian is designated for when she passes away.

death or incapacity. As a document emanating from the unilateral will of its author,
it can be revoked and successively amended.
 In principle, it will be the last surviving parent of the minor who will be able to do so.

declaration, or at least it will only take effect after the death or incapacity of
both parents.
Moreover, the designation of the tutor was intrinsically linked to succession rights.
and the post-mortem provisions.
Legitimate guardianship is that which derives from the law itself, that is, from the bond of

relationship or affinity between the guardian and the ward. As a rule, legitimate guardianship is
granted according to a certain order, according to the proximity of the degree of
kinship, with paternal and maternal grandparents coming first, without distinction, then
the older brothers, the uncles and other relatives, etc.
The guardianship given is that which is assigned by the court's decision, according to
the circumstances of each case that is brought to your consideration.
This was the criterion followed by the Family Code, which assigns to the court
competence for the appointment of the tutor—art. 224, n. 1: "It is the Court's responsibility to

appointment of the tutor.

Article 224, No. 2 allows that: "Parents may appoint a guardian for their minor child
you are incapable in the event that they die or become incapable, being the
"indication subject to the approval of the Court", as is always the case when it is in
I place the appreciation of the superior interest of the minor.

Mandatory guardianship and public action for guardianship.

As a public law institute, the protection of minors is mandatory in nature.

whenever any of the factual circumstances mentioned in article 222 occur.
Family Code.
Article 222 states: "The minor is necessarily subject to guardianship:"
a) whose parents are unknown, are absent or have passed away;
whose parents are deprived of parental authority;
c) whose parents have been effectively exercising authority for more than a year
paternal
d) whose adoption has been revoked.
 In any of these circumstances, the minor has no one to exercise authority.
paternal, therefore, to fill this gap, guardianship must be necessarily established.
The establishment of guardianship is a duty that falls to the State and is implemented.

through its judicial bodies. The competent court is the court of the residence of
less than the date on which the process is initiated.
This is what is stated in the already mentioned article 6, number 1 of the Code of Procedure of the Judgment of

Minors approved by Decree No. 6/03 of January 28 regarding competence

for the application of measures to minors.

By Law No. 18/88, which approved the Unified Justice System, the competence
to know of the actions that judge all family relations is assigned to the Chamber
Family of the Provincial Court.
In order for the respective process to be initiated, whenever any is verified
in the case of mandatory tutelage, the law imposes the duty to inform the fact to the representative of

Public Ministry by the people and entities mentioned in item 2.

According to the provisions of article 229, no. 2 of the Family Code, this duty of
participation is incumbent:

a) to any relative or in-law of the minor;

b) to the person who has the least in their charge;

c) to the member of the social or mass organization or worker of the organism

state
who, by reason of their activity or function, has knowledge of the situation of
younger.
Who has the legitimacy to propose the action is the Public Ministry, as long as,
any interested party or participant is to be informed of the situation of
minor, as imperatively prescribed by article 230 of the Code: 'Whenever, by
in any case, be aware of situations where guardianship is mandatory, the
a representative of the Public Prosecutor's Office will promote their institution.

The Public Ministry holds the same legal position in these actions as it does regarding
to the duty to proceed in the criminal action. It is an action brought in the name of the public interest

that materializes in the defense of the unprotected child.

 For its part, once the guardianship process is established, as provided for in the article.

The court has the duty to promote the continuation of the proceedings ex officio.
(...) with powers of procedural initiative that allow the process to continue the
your legal terms, regardless of the intervention of the Public Prosecutor's Office as
author of the action.

Indeed, a true power to safeguard the interest of the minor is assigned, which is
translate the duty to promote ex officio the procedural action of the guardianship. As provided
the cited art. 231 of the Family Code, the court may request from the organizations
with the necessary documents, can convene the Family Council, can
order to proceed with a social inquiry and other actions it deems necessary.
These broad powers granted to the court clearly demonstrate its character
public of the guardianship.

It was recognized that, under the previous legislation, guardianship processes

dragged due to the lack of initiative from third parties, becoming ineffective and
leaving thousands of minors in a state of legal vulnerability.
Courts are granted specific inquisitorial powers, which allow them to
after the establishment of the guardianship, proceed with the action initiated, and after it has been established

also monitor your exercise until it is completed in cases

provided for by law.
It is the responsibility of the Public Ministry to represent minors, according to article 36.

paragraph a) of the Organic Law of the PGR (approved by Law no. 22/12).
This duty is today enshrined in article 186 of the Constitution, item b), which states
to provide legal representation for incapacitated individuals, minors, and absentees.
The action of the guardianship falls within the framework of a public action in which the initiative

the procedural incumbency is assigned to an organ of the State, the representative of the Attorney General's Office

Republic, and in which the interest pursued by the action is that of protecting the minor.

protected.
The legal protection of minors through the creation of protective measures is the end of
the entire process aimed at a more effective intervention by the State bodies regarding
to minors who are in situations of orphanhood or family abandonment,
thanks to all the adverse circumstances that have been experienced in the last decades in
our country and that are not fully resolved.
In fact, the Code of the Juvenile Justice Process - Decree No. 6/03 of 28
in January, came to establish in its art.0 40. the reception of the minor in family
substitute what actually allows the exercise of guardianship of minors by the representative of the
family member.

Voluntary guardianship established.

As a reality in Angolan society, the de facto guardianship arises, which can be
resulting from the loss, lack of knowledge or absence of the parents, as an act
volunteer on their part, who hands over the minor child to a third party, usually
older brother/sister, uncle/aunt or a person considered reputable,
(designated as godfather/godmother) which fully assumes the authority
paternal in relation to the minor.
This reality is generally caused by economic reasons that
determine such delivery or even the prospect of a better education condition and
professional training in this household.
We can integrate this reality into the legal forecast of item c) of article 222.
foresees the establishment of guardianship when the "parents have not been exercising for more than a year

de facto paternal authority.

When in fact this situation aims to integrate and receive protection.
legal, we have what we can designate as 'optional guardianship' or 'established guardianship'
voluntarily" because the request for the initiation of the guardianship process comes either from the very

progenitor or the person who has the least in their charge. However, most of the
At times, this reality is established on the margins of the law, and we find ourselves confronted with guardianship.

in fact, of what we will deal with later.

In principle, parental authority is not renounceable nor can it be the subject of
cession, but it can be considered as a delegation of powers that must be assessed
from a legal point of view.
It is important to distinguish between the temporary delegation of powers, that is, that of the person

that has the least under its responsibility, and the constitution of what we can designate as guardianship
optional or voluntarily established guardianship that has been properly formalized
judicially.
The first is made of informal fibers and has a merely temporary character.
The second requires the intervention of the court and does not depend on mere will.
of the title but of the appreciation that is made by the judge.

However, once the guardianship is established, it in fact becomes integrated into the
under the mandatory guardianship regime, it is subject to the other rules of the guardianship institution

and can only be terminated under the legal terms that we will see below, as stated in article 243.
judicial decision.

[130] Choice, requirements, and appointment of the guardian.

The system adopted by the Family Code is that of statutory guardianship, as it is up to the court
who is responsible for appointing the tutor—art. 224, no. 1.

The criteria for the selection of the tutor are stipulated in article 233.
allows the court to appoint the guardian at its discretion and taking into account
It concerns the superior interest of the minor and society.
The court, when choosing the guardian, may take into account, as we have seen, the wishes of the

country, homologating it (art. 224, no. 2), or "depending on the circumstances may choose
by a relative or family member of the minor, or by a person who has the minor in their care or who

"for he reveals particular affection"—art. 233, n. 2.

The tutor must meet the requirements set by law in Article 226.
that, similarly to what happens in relation to the adopter, must ensure that the
the person to be appointed must be suitable from all points of view: that they be a citizen or a
citizen with good moral, professional, and social behavior, capable of educating the ward
and to defend their interests.
Must be of legal age and in full enjoyment of their civil and political rights.
The Draft Penal Code provides for an accessory penalty in article 62 in the case
from a sentence of more than 3 years, the prohibition of exercising a function for a period
from 2 to 5 years that depend on "approval from the public authority".
Thus, neither by the future criminal law nor by family law, can one be appointed.
tutor anyone who has been sentenced to the aforementioned prison sentence.
 The economic situation of the tutor must allow him to provide for the support of the ward.
when it does not have its own resources.
It is still necessary that there is neither direct nor
indirectly, interests antagonistic to those of the ward.
The opposing interests between the ward and the person designated as guardian can
of diverse nature and must be properly safeguarded by the court that has to
make the nomination. Thus, a person should not be chosen as a tutor when this
a person will compete with the ward for an undivided inheritance when it is contentious;
when there is any dispute between this person, their spouse or their relatives and the
ward, or close relatives of this; when
this person is a debtor or creditor of the minor or their close relatives;
when there is enmity between this person and the relatives of the ward or with the ward itself
guardian.
Consequently, the position of tutor cannot be given to someone who does not have
full capacity to govern oneself and one's assets nor to anyone who has any
judicial or extrajudicial conflict with the minor or that has had with the
your parents or closest relatives.
From an economic point of view, the situation is different from that which occurs with the
adoption, as the guardian may not have the obligation to provide for the needs of the ward at all times.

that this has assets that allow him to be economically self-sufficient.

The appointment of the guardian is the responsibility of the Judge, observing the legal procedures and the

circumstances of the case under review, as prescribed by the cited article 224.
Article 225 of the Family Code states: "Guardianship concerning two
or more siblings will always be assigned to a single guardian whenever possible," preventing their separation from

brothers and preserving the family structure.

For the appointment of the tutor, the court must necessarily hear the opinion.
of the Family Council » (art. 232 of the Family Code), since, in principle,
this body should be derived from the family environment itself, which knows the person best
endowed with suitability for the exercise of the position.
 The failure to hear the Family Council constitutes a procedural nullity of
absolute and unsalvageable character. The Family Council has a primary intervention in
process of establishment and functioning of guardianship.
Similarly, the court "must hear the opinion of the ward themselves who has
completed 10 years of age»—art. 232.°. Once again, the law recognizes the minor the
the right to be heard on a matter of such importance in your life as the designation
of the person who will perform the functions of tutor.

Once the guardianship is established, it is necessarily subject to registration - art. 1.

item i) of the Civil Registration Code.

Legal nature of the position of tutor.

The position of tutor is a personal position, not transferable to third parties.
by contract or by death.
It is a position of a voluntary nature and not of an obligatory nature, differently
Indeed, it happens in almost the entirety of other legal systems. It is considered
that guardianship is a public duty entrusted to family members by reason of
family ties.
Article 227 of the Family Code states expressly that: "The acceptance of the position
"the tutor is voluntary," so the rights and duties that arise from the position should not
to be assigned to someone specifically.
The voluntary nature of guardianship is enshrined in law as it is understood that it is
but more beneficial for the minor:—it is undoubtedly preferable that the person who will be
designated as a tutor is willing to voluntarily accept the position, taking into account
the emotional and patrimonial responsibility that arises from it.

The Civil Code that was revoked understood the position of guardian as mandatory.
for it was understood that it constituted a duty of family members, a family duty
inherent to the quality of relative or kin of the minor.
This obligation would no longer exist for individuals who did not comply.
part of the minor's family.
 The functions of the tutor are generally free, and the tutor does not receive any compensation.

compensation for managing the assets of the ward. But, in certain

under certain circumstances, remuneration may be set for the tutor—art. 228, n. 1.
As we will see later, the court and the Family Council can assign to the
tutor, as a form of compensation for their role as manager of the ward's assets, a certain
percentage of the income from these assets. This may occur when the volume of assets
the wards entrusted to the guardian will require the guardian a special dedication of time and effort

business. Article 228, no. 2 further states: 'The guardian has the right to be compensated for the
expenses that you have justifiably incurred in the exercise of your duties.
The position of tutor is also, by nature, temporary, as it is intended to fill the
lack of legal representative for the minor.
The guardianship is extinguished, therefore, in cases where there is "The cessation of

circumstances that motivated the establishment of guardianship" and "when the ward reaches the
"legal age"—article 243, subsections c) and b).

Powers of the tutor.

The functions of the tutor aim to exercise paternal authority over
the minor, which encompasses the personal representation of the ward by the guardian and the
management of your assets.
The exercise of parental authority encompasses, as we have seen, rights and duties.
described in Articles 130 and 131, and within their scope are included the rights and duties
described in articles 135, 136, and 137, all of the Family Code (i.e., the duty
of guarding, of monitoring, of providing health care and education.
1. Powers of a personal nature
In acts of a strictly personal nature, the guardian intervenes, just like the parents.
natural, to authorize the minor to perform the act. This is what happens, for example, in the case
of marriage (art. 24, n. 3) or in the case of declaration of filiation—art. 174, letter
b). But, as we have already emphasized, the will that must be expressed is that of the minor holder.
of the right and not that of the guardian.

It is generally understood that the powers of the guardian regarding education and training

the rights of the ward are not as broad as those of natural parents, and the guardian must respect the
opinions that have been expressed by them about their children's professional future,
religious beliefs, etc.
Also here, and for good reason, the interest of
mentored, which leads one to ponder what their natural abilities are, to address the
respect for your personality and will, just as it is required of parents themselves in their
relationships with children—article 137, no. 2.
The Civil Code provided for the existence of a merely impeditive impediment.
in the marriage between the guardian and the incapacitated person (article 1604, letter c)), due to the ties

relatives who were established and the influence that the tutor could have over the
personality of the pupil. This type of impediment was not accepted in the Code
of Family.
2. Powers of patrimonial nature
The exercise of guardianship in the asset aspect suffers more restrictions regarding
to the powers that the law grants to the natural parents and that are mentioned in article 236.
and following the Family Code.
Thus, article 237 imposes on the guardian duties of a patrimonial nature of which are
exempting the natural parents. Regarding the administration of the assets of the ward.

The guardian as administrator of the ward's assets shall:

administer the property of the ward diligently, safeguarding their assets
accounting for your administration;
use the income of the ward only for their benefit;
to make an inventory of the ward's assets when the court that appointed him did not
had a way.
It is verified, as we have seen, that the institution of guardianship is often linked to
successor rights, and therefore, when the guardian is appointed, the inventory has already been carried out

of the minor's assets.

The guardian is not obligated to provide support to the minor when the minor has assets.

own. But has the duty to manage these assets with the diligence of
as a good head of the family and applying the income of the ward for their benefit
exclusive to this. Unlike natural parents, the guardian does not have the right to usufruct.
of the assets of the ward. Along this line of guidance, the tutor must account for the
your administration.
In the common expenses of administration, we can include the following:
expenses incurred for the benefit of the food of the ward;
expenses incurred for the administration of the guardian's assets.
The Family Code does not establish the frequency to be followed by
accountability. This obligation must be fulfilled when the court and the Council
of Family, consider it necessary and convenient, everything depending on the volume of the amounts

heritage at stake.
The court may establish the frequency of the obligation to provide accounts in
1, 2, 3, or 5 years, as long as the specified time frame is not detrimental
to the property interests of the ward.
Article 242 of the Family Code assigns to the court the responsibility of ensuring
accountability of the tutor.
The tutor's accounts must be approved by the court, after hearing the opinion of
Public Ministry and at a conference where the Family Council is present. The
accounts may present a credit or debit balance, depending on the volume of
revenues or the necessity of incurring expenses. These balances shall accrue interest.
fixed at the legal rate.
The law also imposes on the guardian the duty to inventory the assets of the
ward, when, at the time of the appointment of the guardian, the head of the household does not have

the inventory process has begun. Article 2053 of the Civil Code stipulates that, whenever
if there are minors entitled to be called to succession, a process must be opened
mandatory inventory.
It may happen that the appointment of the tutor is made after it has been initiated.
inventory process and then the guardian will not have the obligation to carry it out; but can
it happens that the appointment of the guardian precedes the inventory of the assets of the ward, in case

in which the guardian is required to conduct an inventory of the ward's assets, in a process that
it must be appended to the guardianship process.
 In this case, the court must set a deadline for the guardian to proceed with the aforementioned.

inventory, in order to safeguard the minor's assets. The inventory should include
the relationship of liabilities and assets of the hereditary estate.

The guardian has powers to manage the assets of the ward that include the
practice of all acts of conservation of your assets, the collection of debts, the
acquisition and disposal of non-durable movable property.
The tutor, however, needs authorization from the court to carry out all acts.
discriminated in Article 238 of the Family Code. In paragraph a) of this Article 238 it provides
the same restrictions that are imposed on parents (art. 141.) and that refer to
alienation of real and movable property of a lasting nature, to the repudiation of inheritance, and the

to incur obligations that bind the child after they have reached the age of majority.
Subsection b) prohibits the guardian from contracting on behalf of the ward,
obligations of any nature without the authorization of the court. We argue that the term
"Obligations" should be understood in the strict sense, encompassing only any situation.
legal entity that can place the protected party in the position of passive subject of obligations

monetary or others, taking out loans in their name or as a provider of

guarantee of third-party obligations, excluding therefore the obligations incurred and settled
in the context already described of the powers of the guardian's administration.

In a broad sense, the guardian may thus incur obligations in the name of the ward.
that arise from the normal acts intended for expenses made in the benefit of the ward
and the conservation of your heritage, that is, in return for necessary expenses for
your activity.
The acquisition of movable and immovable property requires authorization from the court. The guardian.

cannot conduct business in the name of the ward, given the personal nature of the quality
of the merchant, and may, with the authorization of the court, continue the operation
of a commercial or industrial establishment that the ward has received as a donation or
succession.
The tutor also needs permission from the court to intervene in the division.
friendly in the succession process in which the minor is a part, either to accept inheritance or

legacy in your name.

 For the same reason, the tutor will not be able to perform acts of generosity on behalf of

of the ward.
The proposal of actions must also be authorized by the court (item c) of
art. 238.°), which covers actions of any nature (personal or property). Intended
the action without the due authorization, the instance must be suspended until it is decided whether the action

whether or not to proceed. If authorization is denied, the guardian must bear the expenses
judicial and extrajudicial.
But the summons of the guardian to the lawsuit does not require court authorization.
as the representative of the minor under your custody.

Acts performed without the court's authorization are voidable, as provided in Article.
239.° of the Family Code, which refers to art. 145.° The annulment may be declared
by the court ex officio, or at the initiative of the Public Prosecutor's Office or

by any member of the Family Council, or at the initiative of anyone who shows
legitimate interest in the protection of the minor. The minor under guardianship may also request the

annulment of the act up to one year after reaching the age of majority.

On the other hand, voidable acts can be subject to validation, such as

Article 239 also refers to Article 146.
This validation can be obtained by an official initiative of the court or the bodies.
above mentioned during the minority of the ward, or by the initiative of the ward after
to reach adulthood, not imposing the law, in this case, any time limit. The guardian
he must fulfill his duties in good faith and diligently. He is responsible
for the acts I committed negligently or intentionally to the detriment of the ward—
art. 240.

Monitoring bodies of guardianship.

Throughout the exercise of guardianship, the guardian is accompanied by the Council of

Family, which takes on its greatest relevance in this institute (articles 16 to 19 of

Family Code). In choosing the 4 members that compose it, attention must be paid to
the rules of art. 17, no. 2 require that 2 members from the paternal line and 2
members of the maternal line, regarding the ancestors of the ward.
 In the case where the parents or one of the parents are not known
guardian, then one will have to rely on the people who interact with the minor, such as
neighbors, people from your social relations, etc.
It is always a collective body, which must make the decisions that will be
approved by the court. The Family Council, after being heard about the
appointment of the guardian remains from the beginning until the end of the guardianship as an organ of

monitoring. The Family Council's interventions in the guardianship process are

primarily, the following:
—On the appointment of the tutor and possible remuneration.

Approval of the assets and liabilities listed in the inventory.

Give an opinion on any request for judicial authorization made by the guardian.
—Give an opinion on the accounts presented by the guardian.
Monitor the tutor's performance in the exercise of their function since the beginning.

until its end.

In addition to the Family Council, the court itself is also an organ of
monitoring of guardianship, representing the State in its duty to protect the minor
Article 242 of the Family Code.
The court, through the Family Room, has the duty to ensure the well-being
operation of guardianship, so that personal and property interests
that the ward is properly safeguarded.
The provisions of protection apply to the abusive behavior of the tutor.
social allowances for natural parents as stated in Article 14 of the Law
No. 6/96 (Law on Juvenile Judgments).®
Both the Family Council and the court itself can be
held accountable if they neglect their duties as monitoring bodies of the
guardianship. Although article 240 of the Family Code is limited to mentioning the

responsibility of the tutor, this does not mean that the State cannot also be.
held liable, if, as a judicial body, not diligently exercising the functions that
They are assigned in the monitoring of guardianship and highlighted in the mentioned article 242.
 Removal and resignation of the tutor
The exercise of the tutor's position may cease before the causes that
they led to the need for the legal existence of the tutor's appointment.

The tutor may be removed from their duties, at the initiative of the court, in cases
provided for in Article 244 of the Family Code.
The causes of removal are of two types:
a) whenever it is verified that the guardian is not properly taking care of
personal and patrimonial interests of the pupil;
b) When it proves to be unsuitable, either for showing unfitness for the exercise of
cargo seeks to stop meeting the legal requirements that are imposed for its
appointment is provided for in art. 226°.
Law No. 19/96 of April 19:
ARTICLE 14.
Applicability of social protection measures
Social protection measures are decreed when the welfare is in danger.
physical or moral condition of the minor, namely, when any of the
following situations:
a) are victims of physical, moral or negligence abuse by
whoever has them in their custody.

The removal of the position of tutor or member of the Family Council may still
derive from your final conviction into a greater penalty, as provided for in Article 76 of the Code
Penal, which would always need to be included in the provisions of the aforementioned article 244, item b).

When, by their behavior, the tutor reveals themselves to be unsuitable for fulfilling the
inherent functions of the position or when their negligent behavior is revealed
prejudicial to the interests of the ward or when it is unfit for its exercise, he
must be removed.
Subsection b) also provides for the removal of the guardian when they no longer meet the
legal requirements, which in part overlap with what was mentioned earlier. For the requirements
laws require that he/she is in full enjoyment of his/her civil and political rights and that
have a decent moral, professional, and social behavior that demonstrates being
susceptible of being a good educator for the tutored.
 When the legal interdiction of the guardian occurs, it is obvious that they must be removed.
Just like when, during the guardianship, conflicting interests arise between the guardian and
guardianship that makes normal relationships between both incompatible, which must be
very close to the relationship between father and son.
Subsequent facts may necessitate the removal of the tutor and their
replacement with another that meets the legal conditions.
The court enjoys great latitude in the powers of removal of the guardian, removal
which can be requested by the Public Ministry, by the members of the Family Council
or by a person who shows legitimate interest in the protection of the minor.

For the removal, the court must hear the supervisory bodies, the Public Ministry
and the minor himself, as long as he is of the legal minimum age.

But the removal of the guardian is not mandatory, as, according to the circumstances,
the court can consider the best way to protect the interests of the minor and can
order or not to remove it.
It is what can be inferred from the body of art. 244, which states that the court "may"
determine the removal of the guardian, which indicates that it will be the court to decide whether, in that

In a specific case, is there or is there not convenience in proceeding with the removal of the tutor.

The tutor may, for his part, voluntarily resign from the position.
Penal:
ARTICLE 76.
Effects of conviction in a higher sentence
The defendant definitively convicted of any greater penalty incurs: (...)
3. °—In the (loss) of being a tutor, curator, procurator in legal matters, or
family council member.
Article 245 of the Family Code is silent about the causes that may be
invoked to support the request for exemption.
The Portuguese Civil Code provides a series of legal grounds for the
justification of the request, which goes from the exercise of certain political and religious positions, to

age, place of residence, state of health, not having the status of relative or in-law,
etc.. In our law, as the acceptance of the position is of a voluntary nature, it was understood
leave blank the possible causes to be invoked by the tutor, trusting in the discretion of
the court's decision on whether they are or are not justification for granting the request.
Whenever the removal or resignation of the guardian occurs, they are obliged to provide
accounts of the management of the assets of the person under guardianship.

In the accounting report, which can be done in a simplified manner, the guardian
must discriminate, on one side, all the earnings obtained in representation of the minor,
should indicate, with regard to expenses, the spending made on account of
administration of assets and those that concern the maintenance of the ward. In expenses
the costs of housing, food, education are included with the food
health care, etc.. Expenses must, in principle, be justified with documents
writings, except for those whose uses dispense with them.
The court and the Family Council, as bodies for monitoring guardianship,
are responsible to the protected party for the requirement of rigorous accountability for
part of the tutor.
When you cease your functions as a tutor, and namely, when the tutored
reaching adulthood, just as parents must do in relation to their children, is
bound to deliver the movable and immovable assets managed by you.

Vacant guardianship, administrative and de facto

The atrocious situation that has been experienced for years in our war-torn country
and due to the massive exodus of populations, made the situation of helplessness a reality.

thousands and thousands of children.

Given such a situation, it was no longer possible to appoint the tutor in a normal way.
within the family. And this is because the family disintegrated or because the minor was
rejected, since birth, by the very family that did not welcome him.
The Family Code provides for this situation in its article 233, paragraph 3, stating that,
Once the impossibility of establishing voluntary guardianship is verified, the minor will be

declared abandoned.

We have already seen the legal concept of a minor in a situation of abandonment,

defined in article 200, number 2 of the Family Code. The factual grounds that lead
the declaration of abandonment is the same, whether in custody or adoption: the verification
by the court that the minor does not have anyone who effectively exercises in relation to him the

duties that are part of the exercise of parental authority.

However, the declaration of abandonment that takes place in the adoption process is

usually triggered because the adopter or adopters intend to obtain from it the
legal effect of the waiver of consent.
In the guardianship process, the declaration of abandonment arises in the course of
institution of guardianship and brings it to an end, because, having verified the impossibility of appointment

As a tutor, the provision of Article 234 of the Family Code must be applied.
The Family Court will declare the guardianship vacant due to impossibility of
appointment of a tutor, and inform the competent social assistance bodies.
2. Administrative protection
The minor declared abandoned must be institutionalized in a facility of
assistance or education, with the role of tutor assigned to the respective director.

In other words, it is the State itself, through its institutions

assigned for that purpose, which will take on the responsibility of creating and educating that minor

abandoned by his family. This guardianship is of an administrative nature and goes beyond the scope of

the provisions of the Family Code, with the guardianship exercised by the director of
establishment without supporting organs.
The court may be called to intervene when there is a need to decide a relevant issue.
in the life of the minor or when a third party emerges showing legitimate interest in protection
of the minor.

What is happening between us is that, given the high number of children in need of
guardianship, it is the very state organs that do not comply with legal provisions
that require the mandatory institution of guardianship by the courts, which do not
are called to intervene, as they should, in such a relevant process in the protection of
younger.
The Family Code (art. 229, n. 2) imposes, as we have seen, on certain
people and entities the duty to participate to the Public Ministry at the Family Chamber
the respective Provincial Court of the existence of a minor in a situation that requires the
mandatory initiation of a guardianship process, pursuant to article 222 of the referred
Code.
Often this duty is not fulfilled, which means that, frequently,
employees of state bodies and humanitarian organizations take care of
administrative placement of minors, placing them in assistance institutions
or in foster families, outside of legal procedures. All the
judicial monitoring that should have been done, and leaving the minor to their fate and
unprotected.
3. De Facto Guardianship

De facto guardianship occurs when someone self-invests in the role of guardian,

exercising these functions without having been appointed to them by the court, that is, when
The guardianship is not institutionalized as optional or mandatory guardianship.
In fact, guardianship in court arises when the minor has an estate.
to protect and the relative or family member of the minor or the person who has them in their care do not comply

the duty of participation assigned to them by the aforementioned article 229, paragraph 2. Thus, and

once again, we see that in Angola many family situations are resolved in the
margin of judicial bodies and the Civil Registry. The de facto guardianship actually has a
broad implementation in the country and remains so, unless a reason arises
determining factor for the legalization of the factual situation.

And this is for the obvious reason that, in almost all cases, the minor that
it should be established that guardianship is necessary, it has no assets, quite the opposite,

needs someone to take care of him, taking on the burdens of material assistance and
others that would be assigned to the parents.

We see that, in many cases, those who wish to take care appear of their own free will.
of the minor, providing assistance care in place of the parents, being the guardianship
exercised within the family by the grandparents, by the uncles, in most cases, by the
older brothers when the younger ones become orphans.
In other cases, guardianship is exercised by individuals who have no connection.
familiar with the minor as indeed was verified in the troubled period of war.
 In these situations, guardianship constitutes a family burden, since the ward is not
the holder of any asset. It is, however, important to take into account that, in cases
where there are assets of the minor to be safeguarded, their protection must be ensured

right of succession, it is up to the Public Prosecutor's Office to propose the competent action

of mandatory inventory and require the accounting, when applicable.

The administrative acts possibly performed by the 'de facto' tutor do not
they bind the protected party and should be considered as those of a business manager,
being able to be ratified by the court or by the ward after reaching the age of majority.
The Family Code gives relevance to de facto guardianship, designating who exercises it.
these functions such as "the person who has the least in their charge" and the same reference is

made in article 233, number 2 when referring to the appointment of the guardian stating that he must be
chosen among "the relatives and kin of the minor or the person who has the minor in their care

cargo
In the same way, both in Law No. 19/96 of April 19, Law of the Juvenile Court,
as in Decree No. 6/03 of January 28, Code of Juvenile Justice Procedure
there are several references to the 'person who has the least under their charge'.

Term of guardianship
As we have already said, the guardianship is of a provisional nature, as it aims solely at

the supply of parental authority and has its term for the same legal reasons that
lead to its cessation, that is, the death of the ward or the fact that the ward has reached the
majority. The rule is that it ends when the minor reaches majority by having
reached the age of 18 or because it was

emancipated by marriage (art. 132, no. 2, letter a) of the Civil Code) or

when the adoption bond has been formed.
But the guardianship may also cease when the circumstances no longer exist.
specific factors that, in that concrete case, led to the establishment of the guardianship. Article 243 states

The causes for the termination of guardianship are:

a) the removal and resignation of the tutor;

b) the majority or the lifting of the ward's interdiction;

 c) the cessation of the circumstances that led to the establishment of the guardianship.

In the case of item a), we are faced with a situation of relative termination, because the
guardianship ceases in relation to the guardian but not in relation to the ward, to whom it must be

appointed another tutor.

A new tutor must be appointed, as provided for in article 246.
The other cases are cases of absolute termination of guardianship in relation to the person of

under guardianship.
Specifically, the circumstances that can alter the constitution of guardianship.
will be
a) establishment of the bond of paternity or maternity when the
the ward is the child of unknown parents;
b) return of the absent parent or parent unable to perform the position;
c) term of the inhibition of parental authority;
d) cessation of the factual impediment for parents to exercise their
authority
paternal.
The cessation of guardianship for any of the reasons mentioned here always requires the

accountability tutor, just like in the case of removal and resignation, and the delivery of
property of the ward.
The court must always issue a decision that is based on the reasoning that led to the
cessation of the guardianship process.
 CHAPTER 20.
The FOODS

Concept, social function, and source of the obligation of alimony

Family legal relations are characterized by being of a reciprocal nature,
solidarity and ongoing. The family group has various types of bonds among its members,
such as kinship (biological or by adoption), marriage, affinity, common-law partnership
or guardianship. Family group members also have the obligation to provide for one another.
moral and material assistance.
The obligation to provide food support is a form of assistance.
material among family members.
The concept of food includes everything that the nourished needs to
your survival and maintenance as a social being.
There are those who classify foods as natural and civil, encompassing foods
natural needs of the nourished (such as food and clothing) and
integrating civil foods with other types of needs (such as housing, education, and
health, etc.).
Article 247 of the Family Code gives us the concept of support, stating in
No. 1 that they understand everything necessary for sustenance, health, housing
and clothing. Number 2 of this article adds that in food allocated to minors
understand still education and instruction.
The obligation of support arises from the duty of cooperation and solidarity established.

in order to protect the interests of the very organism constituted by the group
familiar.
Food encompasses everything necessary for life, including the
expenses with health, the expenses of the demand if the food creditor has to resort to
to the court to exercise its right, and even the funeral expenses that are incurred
with the death of family members.

The obligation of alimony has a very relevant social function, as it falls upon
about family members, leads them to meet the needs.
 If this does not happen, and if this duty is not fulfilled, the obligation of alimony
will fall upon (and will burden) the very society and the State where these members
the needy and unprotected meet.
The State is, therefore, directly interested in ensuring that it is properly fulfilled.

obligation of support by those who are legally required to do so.

In Angola, as a result of the worsening war situation, it largely occurred
the rupture of the social fabric itself and a large number of families live deprived of
bens, displaced from their areas of residence and production, becoming unable to
fulfill your family duties.
A social situation of such gravity was experienced that not only the families but the

the state itself became unable to meet the food needs of everyone
the population. During this acute crisis period, it was necessary to resort to the community

international for the provision of food aid.

There is a deterioration of what was happening in traditional Angolan society.
in which the provision of food within the extended family was very predominant.
Previously, it happened that the provision of food among the members of
the family persisted beyond the legal obligation and was done voluntarily, at times
distant relatives and similar in degree.
In economically developed countries, the obligation to provide support is increasing.
but more restricted and is placed in line among direct relatives, spouse, and a few more.
The development of the social security system leads to the fact that it is the State,

through their pension and social security institutions, or the companies

insurers that grant pensions or subsidies due to incapacity or retirement, that
they allow the subsistence of older people unable to raise resources, without
they have to resort to family support payments.

Legal nature of alimony

The obligation to provide food exists by operation of law, as it is the law that generally establishes it.

who is obliged to her.

 But there may be other sources of this obligation, such as the contract and the will.
mento, the bankruptcy institute, etc.. In these cases, the obligation of alimony will be
governed by the norms of Obligations Law, Succession Law, etc.
Within the scope of our study, we will limit ourselves to the right to
foods that arise within family legal relationships and that result directly
from the law.

The obligation of alimony is an obligation of a strictly personal nature,

like the other obligations and rights that fall under Family Law.
Although it can be resolved through a monetary payment, it
it is by no means an obligation of a patrimonial nature. It is, here, a
personal nature right.
This personal nature derives from the object and the cause of the obligation of food support. It

the object is the protection of the right to life of the holder of the right to alimony,
for it aims to provide for your livelihood and your immediate interests as a human being.
It is exclusively intended to meet the needs and support of the dependent.
As such, the right to food must be considered a fundamental right of
human person, integrated into the broader law that is the right to life.
Article 259 (Personal nature) states: 'The right to food is
imperishable, inalienable, non-transferable to third parties and unseizable.
As a strictly personal right, it can only be exercised by the individual themselves.
holder or by their legal representative.
Concomitantly, the obligation of alimony has as its cause the existence of
a family bond is a specific obligation imposed by reason of that bond
existing between the provider and the recipient.
It is an obligation of a reciprocal nature, because, in principle, it is established
among family members in reciprocity: parents have the obligation to feed the
children and these, in turn, when older, will have the obligation to support their parents; the
spouses, husband or wife, have an obligation to provide support to each other, etc.
It is a public obligation because it is not limited to satisfying the
interests of each food creditor, but also the general interest of society.
Precisely for this reason, the State takes a series of measures so that the obligation of
foods should be satisfied, so that she does not fall back on the community in
general.
The obligation to provide food and the food credit have a strictly
Individuals, due to their own legal nature, are not subject to the general regime.
of the other obligations.
Of the personal nature of the right to food recognized in Article 259 of the Code of
Family, it follows that it can only be exercised by the holder himself and not through sub-
letter rogatory.
It is not subject to prescription because it can be exercised at any time, as long as it is...

check the legal conditions for that.

The titleholder of the right may not exercise it and refrain from requesting support. When

it happens, the law presumes that the fact that the food was not requested means
that they were not necessary. There is even the accepted principle that foods do not have
retroactive nature.
They are only due after the date of the filing of the action or its establishment by
agreement (art. 254 of the Family Code), and no past payments may be requested.
It would not be acceptable for the stability of legal situations for someone to go from a
you can only request several years of previous alimony.
It is true that civil law provides that overdue alimony payments
they prescribe within a period of 5 years, as provided for in article 310, paragraph f) of the Civil Code. But

this does not mean that the right itself is subject to prescription.
The eventual inertia of the beneficiary may lead to the expiration of overdue pensions.
but this does not prevent a new request for child support from being formulated. The request for

Food, as long as it is based on the law, can be requested at any time.

It is still an inalienable right, which cannot be transferred to others, nor
transacted, because it protects an essential interest of a certain person.
And it is also an inalienable right, because, for the same reason, the waiver would go
to call into question that same essential interest.
It is assigned to a specific person, due to the family bond that connects them.
to the debtor, therefore it cannot be assigned inter vivos nor transmitted mortis
cause.
 It is a good outside of commerce, which cannot be enjoyed by anyone who is not
the respective holder. It is also an unseizable right, even if partially,
this is because the law, when providing that the alimony should be established, has in mind

establish the amount necessary for the person who benefits from it, not being able to
this quantity should be reduced.
There can be no offset of the creditor's debt for alimony
with the debtor of this payment. It means: even if the beneficiary of the pension
food has a debt to those who provide it, the debtor of the obligation to
food cannot enforce this debt to operate the offset of your credit
with your debt regarding alimony payments.

Guarantee of the obligation of alimony

The food credit enjoys special protection, as the Civil Code provides in
Article 705.° (Creditors with legal mortgage): "Creditors with legal mortgage are: (...)
a) The creditor for alimony.
As it has been understood, 'The justification for the assignment of a mortgage
Legal is based on the need to guarantee certain creditors who could not obtain
the debtor's consent for a conventional mortgage, or they could only obtain it
with difficulty or sacrificing the natural delicacy existing between creditor and debtor.
They translate into a special guarantee given by law to alimony credit due to
of protected right.
It is important to emphasize— as can be derived from the text of art. 704.°— these

Mortgages, unlike what happens with voluntary mortgages, do not result from
will of the parties, but before the determination of the law, being able to constitute as long as

there is an obligation that serves as security. In the particular case of the obligation of
food, the instrument that can serve as the basis for the mortgage registration may (...) be
the certificate of the judicial decision that has sentenced the debtor.
The alimony credit is therefore subject to registration, as provided for in article 2, paragraph 1,

paragraph h), of the Civil Registration Code.

 The mortgage may be registered as soon as the obligation is established and without
embargo on referring to future obligations not yet due, given the nature
periodic obligations of support. The mortgage can apply to real estate and
about movable goods subject to registration.
In addition to this guarantee, they also enjoy a general movable privilege over the assets.

furniture, under the terms established in art. 737 of the Civil Code: "the credit for expenses
indispensable for the sustenance of the debtor and the people to whom he has the obligation
to provide support, related to the last six months." [140] Active subjects and subjects
liabilities of the obligation of alimony

The legal obligation of food is generically established in article 249, nos.

1 and 2. But within Title VIII of the Family Code, this obligation also comes
mentioned in art. 260., which refers to spouses and partners in common-law unions,
and in Article 262, which establishes the same right between ex-spouses and ex-partners
de facto union.
In fact, in the relationships between spouses, the law provides for the reciprocal duty of

material assistance (art. 43) and contribution to family life expenses (art.
46.
After the dissolution of the marriage, the obligation of alimony may persist, whether
in the case of divorce by mutual agreement (art. 85, letter b) or in the case of divorce
litigious (art. 104, n. 1, item a) and art. 111).
In father-child relationships, on one hand, there is the obligation of parents.
to provide assistance (art. 131.) and to be responsible for the children’s support
(art. 135) and, on the other hand, the obligation of children to provide assistance to their parents

(art. 132.)
On the side of the active subject of the food obligation, two must be distinguished.
situations, according to what is provided in art. 248.° "Only those who can request alimony: a) The

minors; b) People who cannot ensure their livelihood through their work and do not
have resources.
There is, therefore, a need to distinguish between the obligation of maintenance for a minor and for an adult.

age, being the first of unconditional nature, that is, the minor always has the right to
receive food. As for adults, the right to food is subject to
conditionality expressed in the law.
By the wording of article 248, which uses the term 'Only', it can be inferred that
Guiding principle on who are the adults entitled to food support in our
legal system: those who do not have the capacity for work and simultaneously
do not have resources.
This legal positioning corresponded to a directed conception of society.
for socialism, in which each citizen had the right-duty to be included in
job market and autonomy of young people from the age of 18. With education
free higher education and guaranteed access to the job market was not in question
regarding the provision of financial support to an adult child in the phase of completing their professional training.

The transformation of this reality necessitates changing the law for a better one.
protection of children over 18 years old, but who need support from their parents for the
your higher education training, in the conditionality established by law.
The obligation to provide food for a minor is more extensive and primarily falls on
to the parents and adopters and then to the other direct descendants, without any limit
(grandparents, great-grandparents, etc.). In the absence of ascendants, the obligation falls on the siblings.

elders, whether they are Germans, uterine or consanguineous, not distinguishing the law
no priority among them. Uncles are still required to provide support to
nephews, in the event of the absence of the aforementioned relatives, therefore the obligation to

food in parentheses exists up to the 3rd degree of the collateral line. Lastly
the stepparent appears only in the case of the spouse's death, which means
that the obligation of support exists only in the 1st degree of the line of affinity.
The Convention on the Rights of the Child in its Article 27, paragraph 2, assigns

primarily to the parents 'ensure, within their means and availability

economic, the living conditions necessary for the child's development.
The obligation of alimony between adults primarily falls on the spouse or
ex-spouse and, by extension, to the ex-partner of a de facto union who meets the
legal assumptions for recognition.
 They follow in this order: the descendants (and among them, those of the closest degree)

next) and the adopted, the ascendants (among them those of the closest degree) and the
brothers, also without distinction between bilateral or unilateral brothers.
The obligation of alimony between adults only extends to the 2nd degree in the collateral line.
The order present in the law is of a taxative nature and each obliged party in the respective scale must

fulfill the obligation of alimony sequentially and not simultaneously.

As the obligation is of a reciprocal nature, he who is today the active subject (creditor
(of the obligation) may later become the passive subject (debtor of the obligation).
The obligation of alimony can fall on more than one responsible party: father and
mother, maternal and paternal grandparents, several older siblings, etc.

In the event of a competition of obligors to provide alimony, it is resolved in a way

differentiated.
The obligation of parents to provide child support for minor children is an obligation of

solidary nature (art. 135 of the Family Code), which means that the child can ...
to request in full from one of the parents, with the one providing it having the right of recourse in relation to

to the other.

Having more than one thank you (for example, grandparents in relation to a grandchild,
the older children in relation to the father or the mother, etc.) the food creditor can choose
between asking for alimony from a single debtor or a group of debtors.
The law does not determine, within each class of obligors, what priority to give to the line.
maternal or paternal line of kinship, to this or that relative when there are more
than one inside the same class.
If the creditor files the action against only one relative of a certain degree of
kinship, this may call upon the other co-obligors or use against them the
right of recourse for payment of your share if it is determined that they also
were in a position to contribute to the food.
Article 253 of the Family Code refers to the plurality of obligors, stating
that, when the obligation falls on more than one person, the performance of each one will be
proportional to your economic capacity.
Within each class of obligated parties, the obligation of support is not joint but
proportional to the economic capacity of each one (art. 253 of the Family Code).
 Article 249, nº 3 states that the obligation can be divided among several obligors.
If any of the obligated parties are unable to fulfill the obligation, the portion that belongs to them increases.

to the others (art. 253, no. 2). Each co-obligor shall have a share proportional to their
economic capacity which does not involve joint responsibility from the outset.
In understanding the doctrine, the order and hierarchy among the obligated are only applicable

when these can fully provide the food: if the closest obligated person
it cannot provide them, it must do so the following; if the latter can only provide part,
should the following pay the rest.
The order of priority must be followed: only when impossibility is verified.
of the first obligated may be demanded those that follow. As the provision
of food is subject to the conditionality of the economic capacity of those who
however, it is not always possible to determine in advance which of the co-obligors is in

better material conditions to satisfy.

We are, however, faced with a special form of debtor competition, which
it is not strictly governed by the rules of joint obligation. The alimented may request
the provision of alimony to one of the obligors, the one who believes he is in a situation
of greater economic relief in order to be able to provide.
In this case, as we have seen, it is up to the defendant to bring the others into the action.

co-obligated for them to assume the obligation to provide their share,

you can subsequently exercise the right of recourse against them. In the case of within a class
if one or more of those obliged are unable to provide support, the obligation
recount about the others who belong to the same class.
The feeding person is the one who, in our view, should not have their right to obtain hindered.

from the alimony pension, without prejudice that, if the chosen debtor is not the most
indicated from the perspective of economic capacity, this can only be condemned
to a payment in accordance with your capacity.
We have already seen how the obligation of alimony between spouses materializes, as
when there is cohabitation, this obligation is fulfilled through common participation in the expenses

general aspects of family life that aim to meet the needs of material and intellectual life
of family members.
 This obligation extends in the case of simple separation de facto after the
dissolution of marriage by divorce—articles 260 and 262, paragraph 1 of the Code of
Family.
The obligation of alimony between partners in a de facto union arises
since it meets the legal requirements for recognition by mutual agreement
or through judicial means—art. 260.°. In the first case, the effects are the same as those of
marriage, and the partners mutually acquire the same rights and
duties of spouses, including the duty to provide support. In the second case,
the request can be made jointly with the recognition of the de facto union
by judicial means.
In the case of judicial recognition of de facto union due to rupture, it produces the
same effects as the dissolution of marriage by divorce (art. 126 of the Code of )
Family.
But the applicable regime is not the same as in the case of divorce.
In this case, Article 111 of the Family Code requires consideration of the social situation and

economic, to the need for the education of children and to the causes of divorce.
In the case of a cohabitation that ended in a breakup, article 262, paragraph 2 imposes that
the partner should not be solely responsible for the breakup.
The reason for this provision is understood, since de facto unions are
of an eminently voluntary nature, and therefore, if one of the companions is the
Exclusive responsible for the end of the union, it would not be appropriate for him to still ask

food to the ex-partner.

The new provision introduced in Article 264 of the Family Code provides that the
father of a child already conceived, even if he does not live with the respective mother, is
thank you for providing support during the pregnancy period and up to six months after childbirth,
therefore, as a rule, during this period, the woman is not in a position to exercise a
full professional activity.
In this case, the obligation of alimony has its roots in the bond of parenthood.
in relation to the unborn and the newborn, it is necessary to verify the
other legal requirements.
 Method, deadline, and place of fulfillment of the obligation of alimony
The obligation of food can be provided in two ways:
a) in monetary payment;
b) in cash.
The form of payment in kind is one that is typically provided when the
dependent lives in common economy with those who are obligated to support him
food and it receives housing, livelihood, clothing, etc.
The monetary payment or alimony translates to a certain
amount of money that is delivered to the alimentary recipient or their legal representative. This
The provision is periodic in nature and continues as long as the obligation to provide is in force.

foods.
Article 252 of the Family Code establishes that, in principle, alimony
must be fixed in monthly monetary installments.
It allows, however, for a different solution to be adopted when justified.
The law provides that financial compensation can be accumulated with the provision in
species, such as when a father can give a child, in addition to a pension
monthly, the right to withdraw goods for consumption, assistance
medical, or allow the delivery of agricultural or livestock products for food, etc.
In each case, and according to the specific circumstances, the manner will be established.

how the obligation should be fulfilled.

Alimony can be established by agreement of the parties or by judicial decision.
If the food concerns minors, the agreement must be approved by
court.
When the foods have been amicably fixed among the
provided and the debtor of the obligation, alimony is due from the date of the
agreement.
In the case of being set by a court decision, the alimony is due.
from the date of the proposal of the action (art. 254 of the Family Code), as it is understood
it was from that date that the fed began to need that they be
assigned the foods.
 As we saw, foods do not retroact. There are two ways of fixation of
foods: temporary foods and definitive foods.
Meeting the urgency that the fed may have in being provided with
the foods, as their survival may be at stake, are expected to be
provisionally fixed. In fact, the urgent situation in which it finds itself
a person who comes to request food may not be compatible with the course until the end of
a legal action.
The purpose of the law is to ensure the fulfillment of the alimony obligation as much as possible.

as quickly as possible.
Article 256, number 1 of the Family Code allows that, not yet being assembled
the conditions for a definitive decision, the judge may, according to his prudent judgment,
grant provisional support, indicating who is provisionally responsible
for your payment a single thank you.
The alimented shall in no case be required to return the provisional alimony that
received—art. 256, n. 3. This is understood because, as the food is intended for
in its various forms, to be consumed, it becomes impossible to return it.
But if the person who provided support was not the one who was obligated to do so,
if only one person provided support while several were obligated to do so, this
a person will have the right to be reimbursed for what they have provided, in whole or in part, by
those upon whom the obligation of alimony fell or by those who also
was legally liable for the payment (art. 256, no. 2, of the Family Code).
As for the place of fulfillment of the obligation to provide alimony, the Family Code
nothing is stated, so the general rule of obligations applies according to which the place
The fulfillment of the obligation is at the domicile of the creditor (art. 774 of the Civil Code).

All costs arising from compliance shall be the responsibility of the debtor.
obligation at the domicile of the alimentary recipient.

Measurement and variable nature of food

As mentioned, the amount of food is determined according to the
economic possibilities of those who provide them and the needs of those who receive them. And if
whoever requests food is someone who should be part of the household of
thank you, like the spouse or the child, the obligation is broader.
One must attend to the social and economic level of those who are obliged to provide.
food, so that those who receive it can maintain a standard of living similar to that
what benefit it would bring to live in the midst of the family unit obliged to provide the
food.
When child support is due to a minor child, it should be taken into account...
account for your needs for instruction and education and for maintaining your standard of living
identical to that of the father or mother who provides for them.
Article 251 of the Family Code contains an innovative provision, as
when the food is owed to minor children, its amount must be fixed
between a minimum of 1/4 and a maximum of 1/2 of the amount earned by the parent in question.
In the calculation of this amount, all values earned (salaries,
earnings and other forms of gains.
When determining the alimony, the court, according to its prudent
arbitration should determine the fair quantity, so as not to harm others
family member of thank you, nor allow that the established payment is not
suitable for meeting the needs of the obliged.
The greater the economic resources of the obliged party, the greater it will be,

obviously, the alimony, seeking to prevent the courts from following the
a tendency that has been prevailing, to set low pensions.
In Angolan society, with the persistence of polygamous relationships of a
a man living in marriage with more than one woman and having them simultaneously
with several children, the question of how much to set becomes a pressing issue. And this
because, in most cases, the thank you does not actually have economic capacity
to bear the responsibility of providing support, instruction, and education to all
children that you procreated. If the obligation has a certain due date, it will not be possible to go beyond

half of its value.

It may even be verified that the provision of food by such is impossible.
will result in serious losses for the spouse, for other minor children, and for the individual himself

thank you.
 The legal solution, in the case where the obliged party does not have the ability to fulfill

a monetary provision is to offer to receive the fed person in your home,

as provided for in article 252, number 2 of the Family Code.
This avenue of solution must start from the initiative of thank you, which must request
This is correct to the entity that has the request in hand, the court, but it must be accepted.
voluntarily by the feeding, or by its legal representative, as it cannot be
I impose an undesirable family coexistence.
As a rule, the request for alimony is made by the mother regarding the
dad, this way of fulfilling the obligation would lead to the son no longer being
delivered to the mother to start living with the father and a stepmother, which is generally not
well received.
In most cases, this solution is also unsatisfactory, as, if the
resources are already insufficient, the addition of one more person in the household will only come to

worsen the situation of those who are there and will not adequately satisfy the
needs of the fed.
The law treats the obligation of alimony differently when it is provided.
to the greater extent, as we saw, the creditor of the request must justify that they do not
has resources and that has no possibility of acquiring them by its own means.
Every citizen has the duty to work to provide for their own livelihood, and must
in each case, the situation of the person requesting support should be assessed.

Once the alimony is set, it will be variable as long as the conditions change.
circumstances on which the decision was based.
She aimed at a concrete situation and will be altered according to the circumstances.
that served as a premise for both the active subject and the subject
liability of the obligation.

Article 257 of the Family Code provides for the variable nature of the measure of
food, stating in its item no. 1 that it can be changed according to the
circumstances of the recipient and the provider of the support. It is a principle
of public order, therefore it cannot be the subject of waiver.
 Article 257, No. 2 adds that, for this reason, others may be called.
people providing food. It may happen that, after they have been assigned the
, the person who is obliged to provide them finds themselves in the
impossibility of continuing to do so, being able to transfer the obligation to another
more distant degree relative.
Instead, the alimentary may cease to require alimony in
by virtue of having its own resources, etc.
When the payment of alimony is misaligned due to the change in
cost of living, interested parties can request their update.

Certain legislations expressly provide for the establishment of clauses of

indexing that allows for a permanent update of alimony payments,
thus maintaining the real value of the pension and the purchasing power of the alimentary relative to

the goods necessary for your survival.

Given the inflationary situation currently being experienced, we consider it even
it is essential that permanent updating indices are provided for in judicial decisions
the alimony, saving the beneficiaries the need to resort to
periodically in court to obtain the update of the alimony amount.

Enforcement of alimony obligation

Because the provision of food aims to provide for the subsistence of a person, this
its purpose gives it special importance of a social nature. It is not just the interest of
beneficiary that is at stake but that of society, and, consequently, that of the very self
State. It is established the principle that the failure to fulfill the obligation of
Food is presumed, and, unless proven otherwise, falls on the obligor himself.
Hence, various legal systems provide for specific measures.
to coercively obtain compliance with the obligation, following expedited routes
of execution and anticipating penal sanctions for the negligent.
In general, the failure to comply with the alimony obligation is punished criminally.
and is considered a violation of the obligation of family assistance. The assumptions of
crime is on one hand a subject in a state of necessity and on the other a subject
thank you for providing food, usually expected that non-compliance occurs
for a certain period of time.
In the criminal aspect, it is certain that there existed, as there still exists, Law No. 2053, of 22

of August 1952 (Family Abandonment Law), which punishes non-compliance

voluntary in the duties of marriage and parenthood, particularly in failing to fulfill the
alimentary obligation.
The concept of abandonment encompasses a behavior that consists of the absence of
provision of material and moral assistance that the law imposes on a family member, whether in

the quality of a spouse in the role of a parent, which is reflected in support

material and moral, inherent to 'paternal authority, guardianship or matrimonial state'.
Abandonment means omission, neglect, renunciation, or abstention from something that
if it is obligated in relation to the family, imposed by nature or by law" The crime of
abandonment of family punishes the omission of duties of assistance and solidarity
conjugal and parent-child
The Draft Penal Code includes as 'Crimes Against Other Property'
Family Law" or the crime of Material Abandonment in art. 230: "1 - Who without
just cause, cease to provide for (...). Spouse or person in a similar situation, child
under 18 years old or unable to work, or from an incapacitated ascendant does not give him
providing the necessary resources or failing to pay alimony
food obligation that you are legally bound to (...) is punishable by imprisonment of up to 2
years or with a fine of up to 120 days." The omission must have a voluntary character and be
unmotivated, without a cause that justifies it.

The Domestic Violence Law, Law No. 25/11 of June 14, integrates the
family abandonment as a criminal offense defined as "any conduct that
seriously and repeatedly disrespect the provision of assistance in accordance with the law
Article 3, number 2, letter f). In its article 25, letter b) defines as a public crime among others
"the repeated failure to provide child support" which is punished with a penalty of
two years imprisonment, if another more severe penalty applies to you under the terms of the legislation.
 To meet the survival needs of the fed, certain systems
laws provide that the State shall replace the debtor, advancing the payment
of the missing pension
In France, for example, it is even expected that, under certain conditions, the use of

public collection process in which the Prosecutor of the Republic is the executor and that
follows the rules for collecting direct contributions owed to the State.
The State, in turn, takes on the responsibility of paying the pension in advance.
of food to its beneficiary, then executing the debtor with an increase of a
legal rate.
In Portugal, Law No. 75/98 of November 19 establishes that it shall be paid by the State.
to the youngest resident in Portuguese territory, as long as the fed person does not have

income above the national minimum wage, the alimony that was owed
It is paid for by thank you.
The system anticipated before the coming into force of the Family Code, that is to say in

Civil Code and in the Statute of Judicial Assistance to Minors, was of weak
guarantee regarding the effective collection of alimony, with numerous checks being made.
cases in which the obligated went unpunished, despite not fulfilling their obligations

legal obligations, even when recognized by a court decision.

It must be recognized, however, that the Family Abandonment Law, throughout its
long existence, has not been subject to practical application and has left without sanction the
the generality of cases of violation of the duties of family assistance, either from the point
From a moral perspective, it seeks material. Especially the duty to provide food, which is undoubtedly

one of the most important.

With the publication of the Family Code, the situation changed and
the mechanisms of the respective collection have been simplified.

The Preamble of Law No. 1/88, which approved the Family Code, mentions
precisely the changes made regarding the obligation of support for minors,
adding that the court is given the ability to order the employer
I order that the support payments be made directly to the beneficiary.
In general, we can say that the execution of the obligation to provide food can be carried out.

in two copies:
 a) By civil means, in a special enforcement action;
b) Through criminal means, with the payment of the installments functioning as a condition of

to be dispensed or extinguished the penalty, as happens in Portuguese legislation and is provided for

in the proposed Angolan penal law.

We have already mentioned that the obligation of alimony is a "duty" obligation of

public interest and order, for which its non-compliance is subject to sanctions
special, different from other obligations in general.
Article 255 of the Family Code provides what can be done through the judicial route.
civil, in the case of enforcement of alimony.
Contrary to what happened in the previous legislation, the Family Code
assigns to the court that issues the decision, usually the Family Court, the competence to
the execution of the respective sentence.

Article 255, No. 1 expressly states that the court must promote
ex officio all proceedings that appear necessary.
The scope of this provision is very broad. It allows that, on the initiative of the very own

judge, who can mandate the court clerk to investigate the existence of
debtor's assets, requesting information from public and private entities to learn about them.
economic situation, and, consequently, proceed to the seizure of goods that are
found.
In this case, the public interest of meeting the needs of the alimented.
prevails over the duty of professional secrecy that banking entities are subject to
attached, they must provide the information requested for the purpose of
enforcement of the debt.
The Public Prosecutor's Office and the food creditor may also come to the records to indicate
the assets to be seized for the satisfaction of the enforceable amount.

As often happens that the food debtor seeks to evade

your duty to hide your assets in the name of third parties, the court must investigate
and if in concrete one is convinced of such, order the seizure of assets that are in the
effective possession of the thank you, as filling of residence, automobiles, etc.
 In the case of an employee, paragraph 2 of article 255.
allows for direct payment between the workplace (whether it is an entity
public or private patronage) and the beneficiary of the alimony.
Thus, the intervention of the obliged party in this payment is waived, which

simultaneously shortens the receiving period and prevents any deviation by

Thank you. The subrogation of the debtor's credit over the third party that is theirs takes place.

debtor, directly in favor of the creditor of the alimony obligation.

It is enough for the court to order the judicial notification of the third party.
who is indebted for salary or wages, this third party being obliged to
satisfy the fulfillment of the obligation as long as the decision remains and SC maintains

the legal-labor or employment obligation.

The debtor of the payment, which may consist of salaries, profit shares,
commissions, bonuses or other income, you are obliged to process the payment due to you
was notified to the alimenting party, under penalty of incurring the sanctions provided for the

unfaithful depositor.
In the vast majority of legal systems, the trend is, as we have seen, to consider
today, the unjustified failure to pay child support is considered an offense
penal, provided for among the offenses committed against the family.
Angolan criminal legislation urgently needs updating in order to punish the
offenders who voluntarily evade the obligation of alimony.
The execution of the obligation of alimony can proceed simultaneously through the civil route and the

through criminal means, in order to achieve the effective fulfillment of the obligation, always
considering the interest of the beneficiary and that of society in general, in which it is
properly satisfied.
The cited article 27 of the Convention on the Rights of the Child states in its paragraph 4 that

measures shall be taken for the collection of alimony even between States
different.
The mentioned Cooperation Agreement was celebrated between Angola and Portugal.
Legal and Judicial approved by resolution no. 60/04 and published on November 7
since 2005 in its Chapter II on Recognition and Enforcement of Decisions
Related to Alimony Obligations - in articles 14 and following, it foresees the conditions
that allow the execution of judicial decisions made concerning alimony
between nationals of the referred States.
This agreement was made on August 30, 1995, and approved by the Assembly.
National in the session of August 10, 2004, was only published on the date indicated above.
With a total of 145 articles, it extends to various areas of law in that
Family law matters address "Recognition and Enforcement of Decisions"
Related to Alimony Obligations.

ARTICLE 14. (Decisions covered)

This chapter applies to decisions regarding obligations.
food obligations arising from relationships of kinship, marriage, and affinity expressed
by tribunal of Contracting State.
2. This chapter also applies to transactions entered into regarding this
matter before these entities and about this matter.
The decisions and transactions mentioned in the preceding numbers can both be
as we fix foods like those that modify previous decisions or transactions.
4. This chapter is still applicable to decisions and transactions regarding
de facto union in the exact terms in which the respective law corresponds in
State of execution.
5. For the purposes of this chapter, the State referred to in paragraph 1 is designated as State

of origin.
We do not know what the scope of this Agreement has been and how.
you are coming to process your performance in practice.

Extinction of the right and obligation of support

The extinction of the right and obligation of alimony can result from two orders.
of factors:
a) the verification of a fact;
b) the judicial decision.
 The cases of termination of the obligation to provide alimony are expressly provided for in

Article 258 of the Family Code, regulating Article 263 the obligation between ex-spouses
or common-law partners.
Article 258, paragraph 1, item a) states that the obligation to provide alimony ceases with death.

of the supported or of the nourished. In its number 2, this article provides that the nourished exercises

your right in relation to others, equally or successively obligated.

It is the legal consequence of the personal characteristic of the right to food, which is not

post-mortem transmissibility. This non-transmissibility is verified both in relation to

the creditor of alimony (since their right does not pass on to their heirs) wants
regarding the debtor of alimony (since their heirs are not obliged to the
fulfillment of the obligation.
This does not mean that if there are overdue and unpaid installments, the creditor of ...
obligation (the dependent), cannot require them over the existing values of the inheritance
of the debtor of the obligation. Due to the cessation of the family bond that united the obligated and the

fed, one of the legal prerequisites ceased to exist.

In the obligation of alimony between ex-spouses or partners in a de facto union,
to which we have already referred, it is also extinguished by the verification of the mentioned facts

no article 263 of the Family Code (having entered into a new marriage or having been
a new common-law union was established.

The extinction of the obligation through a judicial decision applies to all others.
cases. Article 258 of the Family Code mentions as cases of termination of the obligation
the following:
a) when the adult alimentary seriously violates their duties to
with thanks;
b) when the one providing the support can no longer continue to provide it or
he who receives them no longer has need of them.
In turn, Article 263, in the specific case of ex-spouses and partners,
It also includes the case of a serious attack against the honor of the obliged.
In the case of paragraph b) of article 258, we are dealing with people linked by a bond.
families that are subject to specific rights and duties. Having
serious violation of these duties may also result in the extinction of the obligation to provide food.
 As a rule, given the reciprocal nature of the alimony obligation, if the one who
was obliged to provide it but did not, as in the case of the father in relation to the
a minor child left unprotected must understand that, later, the father cannot
I came to ask for food from the son.

It is likewise applicable to apply such a provision when, during the existence of the bond

conjugal, one of the spouses seriously violates their duties to the family
matrimonial.
A serious breach of duty can be assessed by the courts, weighing the
circumstances of each specific case and assessing whether the facts are in themselves serious, if

they are of a willful or merely negligent nature.

Finally, the obligation of support ceases when the obligated person is no longer able to provide it.

continue to provide them or even when those who receive them no longer need them
receive. In one case or another, we will be faced with legal assumptions of the obligation to
foods that, if they cease to exist, will lead to the extinction of the obligation itself.
In fact, the obligation of alimony, which is of a variable nature, can be
reduced or even extinguished depending on the changes in the obligor's economic circumstances
and of the beneficiary.

The provisions of Article 258 of the Family Code are of a general nature and are
applicable to all cases of the obligation of alimony.
When the obligation of alimony occurs between ex-spouses or
common-law partners, the family bond has ceased to exist, there being thus
only an extension of the duty of material assistance that came from the bond
previous. Hence, one cannot mention the violation of a reciprocal duty.
The Civil Code had a more restricted concept of the obligation of alimony in this
case, as it mentioned that it was a cause of extinction the fact that the alimented becomes
outraged by your moral behavior.
The Family Code did not accept this criterion, as it was understood that the fact of the
the moral indignity of the dependent did not remove their need for food.
Article 263 of the Family Code imposes that the alimentary party commits some act.
directed directly against the person of the thank you.
 And it has to be a serious act: an attack against life or a serious assault.
against the honor of thank you. The facts provided for in article 263 must be subsequent to
dissolution of marriage or the breakdown of common-law partnership.

Regarding the dissolution of marriage by death, it has already been mentioned that the

The surviving spouse has the right to be supported by the earnings of the deceased spouse.
as established by article 261 of the Family Code.
The heirs or legatees to whom the assets have been transferred are
called to respond for the alimony in proportion to their respective share. This concerns
a burden of inheritance to be considered also in the context of succession law. If the burden
to fall on real estate, it is subject to registration, according to paragraph 3 of this article.
261.°.
Article 264 provides that: 'The father who does not cohabit with the mother of the child is obliged to

provide her with food when she needs it, regarding the period of pregnancy and
up to 6 months after childbirth. The bond that links the parent to the newborn is the foundation

of the obligation of support that extends for the first 6 months of life, in
regarding the mother of the child, considering that she will be in the postpartum period

unable to work.
 BIBLIOGRAPHY
Introduction
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OLIVEIRA, Guilherme de—Establishment of Parentage.

PINHEIRO, Jorge Duarte—Contemporary Family Law.
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Link. UCCELLA, Fulvio—Family Law.

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PUBLISHED WORKS BY
MARIA DO CARMO MEDINA
File of Legislation of the People's Republic of
Angola—Volumes 1, 2, 3.0
Decisions of the Court of Appeal - 1976a 19,9
Family Code (disclosure)
Participation in the book 'Femme in Angola'
Study "The Woman and Criminality" included in
Thesis '27 years in the fight for Peace'

Supreme Court Rulings - 1990

Family Code (Annotated) - 1998
Family Code (Annotated) - 2nd revised edition
and updated—2005
Family Law—Lessons—2001
Family Law - 2nd revised edition
updated - 2005
Environmental Framework Law (collaboration)—2001

Angola: Political Processes of the Struggle for

Independence—2003
Law on Minors and Code of Procedure
Juvenile Court (Noted) - 2004 CEDANT ARMA TOGAE