As previously mentioned by the author (see https://www.tofadvogados.com/post/a-aquisi%C3%A7%C3%A3o-de-bens-na-const%C3%A2ncia-do-matrim%C3%B3nio-com-bens-pr%C3%B3prios-e-outras-nuances and https://www.tofadvogados.com/post/ir-relev%C3%A2ncia-do-regime-de-bens-de-casamento-para-efeitos-sucess%C3%B3rios-partilha-de-heran%C3%A7a):
In our legal system and in the context of marriage, the spouses can currently freely determine the property regime to be in force during the marriage.
Specifically, there are three different property regimes: a) general communion regime (see articles 1732 to 1734); b) acquired communion regime (see articles 1721 to 1731); and c) separation regime (see articles 1735 and 1736).
In general terms, with regard to these regimes, it should be specified that if no prenuptial agreement has been signed to determine the applicable regime (or in the event of its expiry, invalidity or ineffectiveness), the supplementary regime of communion of acquisitions will apply (cf. art. 1717), which is why this is the predominant regime.
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This has been the regime since Decree-Law no. 47344/66 of November 25 came into force, i.e. June 1, 1967 (see articles 2 and 3 of Decree-Law no. 47344/66 of November 25).
Before this date, the regime of communion of property was in force as a supplementary regime, with article 1098 of the Civil Code of 1867 stating that “In the absence of any agreement or convention, it is understood that the marriage is made according to the custom of the kingdom (...)”, and article 1108 of the Civil Code stating that “Marriage, according to the custom of the kingdom, consists of the communion, between the spouses, of all their present and future assets not excepted by law”.
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Taking into account the Civil Code in force today, the exception to this rule of choice by the spouses will occur if one of the spouses is sixty years old or older, or if the marriage is celebrated without preceding the preliminary marriage process, in which case the mandatory regime of separation of property will apply (see art. 1720, no. 1, a) and b)).
However, among this exception we found a slight change and yet another situation until the legislative changes made by Decree-Law no. 496/77 of November 25 came into force.
Thus, between the Civil Code approved by Decree-Law no. 47344/66, of November 25, and the legislative changes made by Decree-Law no. 496/77, of November 25, the mandatory separation of property regime was still in force if the woman had reached the age of fifty, or if one of the spouses had legitimate children, even if they were of legal age or emancipated.
In line with this, Decree-Law no. 496/77, of November 25, also amended article 1699 of the Civil Code, and under the terms of paragraph 2 of this article, “If the marriage is entered into by someone who has children, even if they are of legal age or emancipated, the general communion regime cannot be agreed”.
In this way, doors have been opened to the possibility that those who have children can marry without being subject to the separation of property regime, but with the communion of acquisitions regime being applicable.
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Finally, a brief reference to the fact that art. 1790 of the Civil Code, as amended by Decree-Law no. 496/77 of November 25, stipulated that “The spouse declared to be the sole or main culprit may not receive more in the division of property than he or she would have received if the marriage had been entered into under the community of acquisitions regime”, thus making the so-called “wrongful divorce” relevant.
With Law no. 61/2008, of October 31, “fault divorce” was abolished, and art. 1790 of the Civil Code now states that “In the event of divorce, neither spouse may receive more in the division of property than they would have received if the marriage had been celebrated under the community of acquisitions regime”, thus imposing a quantitative - but not qualitative - limit.
Thus, by mutual agreement and in good faith, it is relatively common for the parties to agree to exclude from the division of assets that existed in the legal sphere of each of them at the time of the marriage, facilitating the application of this rule.
This demonstrates the legislator's clear intention to give precedence to the community of acquisitions regime in our legal system, as a matter of fairness and without prejudice to the spouses, between themselves and by mutual agreement, being able to act “according to their will”, with the courts applying the law, naturally, in the absence of consensus.
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Finally, it should be emphasized that the relevance of the above is due to the fact that, nowadays, we find couples to whom the various legal regimes apply.
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