Divorce

Digital Divorce

Two years after the beginning of the COVID-19 pandemic, it’s no big news to speak of new ways of living within the society: online work, online school, medical consultations by videoconference, conferences and even virtual celebrations are now a reality. It is also true that the Portuguese legal system must not remain ignorant of these new realities, and it was precisely for this purpose that the Government approved Decree-Law No. 126/2021 of December 30th.

Its summary reads:

“(…) it is timely to create conditions that allow the practice at a long distance of authentic acts, terms of authentication of private documents and recognitions that require the presence of those interested in the act before the professional who drafts them.” (free translation)

The Decree-Law entered into force on April 4th, 2022 and will be in force for the next two years, with the possibility of reassessment and renewal. There is also a list of specific situations in which one can apply the new regime, as stated in article 1.º, numbers 2 to 5, that focus mainly on the following matters:

  • Procedures associated with the acquisition and registry of a property in a single moment;
  • Separation or divorce by mutual consent;
  • Entitlement of heirs with or without registry.

In other words, it means that it is already possible to perform legal acts that should typically be carried out in the presence of a notary or registrars and registrars officers by videoconference – in particular, authentic acts, terms of authentication of private documents and acknowledgements that require the presence of the interveners before registrars, registrars officers, notaries, Portuguese consular agents, lawyers or solicitors.

In other words, it means that it is already possible to perform legal acts that should typically be carried out in the presence of a notary or registrars and registrars officers by videoconference – in particular, authentic acts, terms of authentication of private documents and acknowledgements that require the presence of the interveners before registrars, registrars officers, notaries, Portuguese consular agents, lawyers or solicitors.

This fully optional electronic intervention will take place through an online platform provided by the Ministry of Justice which was specially designed for this purpose. Any interested party who wishes to use this service, holder of Citizen Card or Digital Mobile Key, can access it. Access to the platform is also allowed to citizens of other EU Member States.

Another question arises as to whether, and to what extent, this new law alters the procedures under Family Law, especially divorce cases by mutual consent, which we will clarify below.

The divorce by mutual consent happens within a process that may take place at the Civil Registry Office or in a Court of justice. When the couple agrees on the regulation of parental responsibilities for their children, as well as on child maintenance, the destination of the family home and the custody of family pets, the proceedings will take place the Civil Registry Office. In the case that the couple does not agree on one or more of these topics, the case runs within the Court of justice.

If the proceedings do take place at the Civil Registry Office, a conference must happen in the presence of the registrars to verify all legal premises and the agreements established between the parties.

In practical terms, what this new Decree-Law regulates is precisely the holding of this conference – and the acts produced by the registrar within – by electronic means. In addition, a lawyer or solicitor is allowed to accompany the process online, as it would be in person.

On the day scheduled for the videoconference, the registrar should follow a series of formalities to ensure the proper functioning of the process; in this regard, in addition to the interruption of the proceedings if the formal requirements do not meet, the registrar may also refuse to practice the act if he has doubts about: the identity of the parties or their free will; the capacity of the interveners; genuineness or integrity of the documents submitted. It also includes the possibility of refusal or interruption of the proceedings if the necessary technical conditions (such as the quality of the video and audio of the interveners) are not sufficient to carry them out.

On another hand, if all the necessary conditions to ensure the integrity of the process are verified, all documents drawn up will have the same legal value as those that would be produced in person. The process ends with the submission of the signed documents (with a qualified electronic signature) by the competent professional in the online platform, to which seal is dispensed.

We can conclude that the legislative change does not imply major changes in the separation or divorce process in themselves – the only difference is the transfer of the physical presence of the parties in the Civil Registry Office to their virtual or digital presence. Time and experience will tell whether it will be feasible to maintain in the long term this new means of “electronic divorce”, but there is no doubt that what is at stake is a legislative advance that aims to bring more convenience, comfort and even security to those who so wish; even more so in a delicate moment for people like that of the dissolution of marriage.


Carla Chibeni

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