Civil partnership and the right to alimony or maintenance
Today, the widespread notion is that civil partnership equals marriage couple’s rights.
If it is true that there is a progressive equalization between these two figures, the fact is that there are still substantial differences between them.
In the event of the death of one of the couple’s members, the survivor will have the right to remain in the family home for a period equivalent to the duration of the civil partnership or a minimum period of 5 years, if the duration of the relationship was shorter.
However, concerning maintenance, two situations must be distinguished:
Spousal Maintenance in case of civil partnership dissolution
In case of the collapse of the love relationship and in opposition to what happens in divorce cases, civil partners are not entitled to petition their ex-partner for alimony. This is one of the fundamental differences in the regime of this institute when compared to marriage.
The lack of legal provision for the right to alimony on the part of the civil partnership member is inducing, in some situations, clear injustices, particularly in cases of relation that have lasted for decades and in which one of the members finds themselves, perhaps at the end of their life, without any means of subsistence.
The impossibility of claiming alimony from the ex-partner may be considered one of the disadvantages of the non-marital partnership in comparison with marriage.
Spousal Maintenance in case of death of one of the civil partners
In case of death, and unlike what happens in cases of rupture, the law expressly provides for the right to maintenance to be funded by the deceased’s inheritance. No valid reasons are envisaged for providing for the right of alimony only in the case of the death of one of the couple’s members, since the reasons that led the legislator to foresee such a right in the event of death, can also be felt, naturally, in cases of mere dissolution.
Thus, civil partnership members whose partner dies may be entitled to maintenance payments, in general terms, which will be borne by the deceased’s inheritance.
Divorce and child maintenance or spousal maintenance in Portugal
In 2008 profound changes were introduced to Portuguese divorce and spousal maintenance (alimony) legal framework.
Until then, the ex-spouse could claim a maintenance allowance, particularly if he or she was not found guilty of the divorce. The maintenance paid should suffice to allow the recipient to maintain the same standard of living.
Currently, the Portuguese legal regime is substantially different. It is now understood that each ex-spouse must provide for itself, so only in certain circumstances are an ex-spouse allowed to claim maintenance pay (alimony).
Besides, maintenance pay no longer relates to the marriage standard of living, but will just suffice for the beneficiary to satisfy his basic needs.
How is spousal maintenance calculated in Portugal?
There is no mathematical table or criterion that the court can use to determine the amount of maintenance.
In setting the value, the resources of the former spouse who pays it and the needs of the recipient must first be taken into account. If the ex-spouse already pays child support, it should take priority over maintenance payments. In addition to the income of each person and the needs of the person requesting spousal maintenance, the calculation of the amount to be paid must also take into account some elements, such as:
- The duration of the marriage
- The collaboration that each gave to the couple’s economy
- Age and health status of payer and recipient
- Professional qualifications and business opportunities
- The time each one will devote to raising common children
- New marriages or civil unions.
After all these elements have been duly considered, an amount will be decided which should be paid monthly, twelve times a year.
When does maintenance pay ends in Portugal?
Maintenance pay will not always be perpetual.
In fact, and knowing that Portuguese law imposes an obligation on each member of the ex-couple to provide for their livelihood, many cases will exist in which the ex-spouse will no longer depend on his ex-husband or ex-wife.
Thus, and as soon as there is a change in the circumstances that were taken into account at the time of maintenance pay granting. The ex-spouse obliged to pay may request the Court to reduce its amount or even to decree the end of the allowance. This will be the case when the ex-spouse finds work, receives an inheritance or, otherwise, can provide for its own needs.
Likewise, if the recipient of the pension remarries, starts a civil union or becomes morally unworthy of receiving it, there will also be a termination of maintenance payments. Anyone who commits a crime against the person obliged to pay alimony pension or defame him/her, etc., will be morally unworthy.
Thus, and as soon as there is a change in the circumstances that were taken into account at the time of fixing the pension, the ex-spouse obliged to pay it may request the court to reduce its amount or even to issue the end of the pension. This is the case in situations where the ex-member of the couple finds work, receives an inheritance, or, otherwise, has sufficient economic means to provide for his basic needs.
Likewise, if the beneficiary of the pension remarries, starts a non-marital partnership, or becomes morally unworthy of receiving it, the obligation to pay the pension will also end. Anyone who commits a crime or defame the person obliged to pay the pension, will be considered morally unworthy.
In any case, the ex-spouse interested in having the pension reduced or stop to pay it must appeal to the court for this purpose.
Alimony during pregnancy
In cases where the future father and mother do not have a relationship, not being married to each other, it may happen that the future father does not voluntarily contribute to the expenses resulting from the pregnancy.
Such expenses may be the most diverse, from consultations and medical exams, to special food or care that by medical recommendation the future mother is obliged to comply and including the purchase of clothes and all the accessories that a baby needs during early life.
What happens, then, in cases where the future father refuses to co-participate in the pregnancy costs?
Are pregnant women entitled to alimony?
Article 1884 of the Civil Code provides, explicitly, that the father is obliged to provide alimony payments to the mother from the period of pregnancy and until the first year of the baby’s life.
The mother interested in having an alimony pension fixed – pregnant foods, as they are called in Brazil – during the pregnancy period, must, for this purpose, bring legal action against the future father. The pension is required until the end of the child’s first year of life.
After the child’s birth, and if there is no agreement between the parents regarding the establishment of a regime for the exercise of parental responsibilities, the mother may institute a new lawsuit, this time with the purpose to regulate parental responsibilities and have the pension fixed, that will remain, in principle, until the child’s 25th birthday.