Why do divorce sentences decreed abroad have to be recognized in Portugal?
Under Portuguese law, for a judicial decision (such as a sentence or divorce decree) rendered by a foreign court to produce effects in Portugal, it must be reviewed or confirmed by the Portuguese court. This review process, also known as the foreign judgment recognition (or homologation) process, corresponds to a merely formal confirmation of the foreign judgment. This means that, unlike what happens in other countries, the Portuguese Court will only make sure that the decision is authentic and capable of being recognized, and will not inquire about its justice or the proper application of the law by the foreign court.
What is the process of recognition of foreign sentences?
The recognition of foreign sentences in Portugal takes place via the judicial review process, provided for in articles 978 and following of the Code of Civil Procedure.
This process must be initiated in the Court of Appeal (Tribunal da Relação) of the area in which the defendant is domiciled, i.e. the person against whom the sentence is to be enforced. The Court of Appeal of Lisbon (Tribunal da Relação de Lisboa) has jurisdiction in cases where the defendant is domiciled abroad.
Once the review process has been initiated, the Portuguese court will then proceed to verify whether the foreign judgment meets the various requirements set forth in article 980 of the CPC.
First, the Court of Appeal (Tribunal da Relação) will ensure that there are no doubts as to the authenticity of the document containing the sentence, and it will also check whether its content is understandable.
Next, it will verify whether the foreign court was competent to make a decision on that question of law, making sure that the matter in question is not within the exclusive jurisdiction of the Portuguese courts and that the assumptions on which the jurisdiction of the foreign court was established were not fraudulently brought about by the parties. Furthermore, it will verify if the matter of law in question is not currently being discussed in a Portuguese court, or if it has been in the past.
In this regard, it must also be verified if the foreign sentence is final, i.e. if it is no longer subject to appeal or amendment and if its effects have crystallized in the foreign legal system.
In addition to these procedures concerning the authenticity, validity and effectiveness of the foreign sentence, the Court of Appeal (Tribunal da Relação) will also have to verify whether it was issued in compliance with the principle of equality between the parties, making sure that the parties were regularly served with notice and had an equal opportunity to comment on the question of law under discussion. Finally, the Court will verify whether the content of the decision is compatible with the basic principles of the Portuguese State.
Once all these requirements are met, the foreign sentence is confirmed and becomes effective in the Portuguese legal system.
Do all foreign divorce sentences have to be recognized?
Unless there is a treaty or special law to the contrary, a foreign court sentence (judicial or arbitral) must be reviewed.
This is the case for divorces decreed in the countries of the European Union. In fact, the Brussels II Bis Regulation establishes the principle of automatic recognition of divorce sentence issued in any Member State (with the exception of Denmark, which does not participate in the adoption of the Regulation and is therefore not bound by it). This means that instead of initiating proceedings for recognition of the foreign sentence, the parties will be able to prove their divorce before the administrative and judicial authorities of another Member State only by producing a judicial certificate issued by the foreign court in accordance with a form specially provided for in the Regulation.
This automatic recognition procedure, however, also has exceptions. It is not possible, for example, if the content of the decision is incompatible with the basic principles of the Member State of recognition, or if one of the parties has not had the opportunity to present its legal defense.
This Regulation came into force on August 1, 2004, so divorces awarded in an EU country before that date are still subject to review by the Court of Appeal (Tribunal da Relação).
As for divorces decreed in Brazil, there is no special treaty or law that allows for the automatic recognition of such decisions, which means that divorces decreed in Brazil must first be recognized by the Court of Appeal (Tribunal da Relação) to have effect in Portugal.
Do decisions of divorces decreed in Notarial Offices (Brazil) also have to be recognized?
This need for homologation is also verified in cases of divorce recognized by a public deed executed by a Notary Public – that is, the need for recognition of a divorce sentence issued in Brazil is obligatory, both in cases where the divorce has been judicially or extrajudicially decreed.
After the recognition of the foreign divorce by the Portuguese Court, what must be done in order to have it inserted in the birth certificate?
Sendo reconhecida pelo tribunal português a decisão estrangeira, o tribunal, oficiosamente, informa a Conservatória do Registo Civil para que se proceda ao averbamento do divórcio no Assento de Nascimento e de Casamento dos sujeitos em questão, caso tenham nacionalidade portuguesa ou tenham casado em Portugal.
If the Portuguese court recognizes the foreign sentence, the court, officiously, informs the Civil Registry Office to proceed with the annotation of the divorce in the Birth and Marriage Certificates of the individuals concerned, if they are Portuguese nationals or were married in Portugal.