What is the definition of marriage?
According to Article 1577.º of the Portuguese Civil Code, marriage is defined as “the contract concluded between two people who wish to form a family through a full communion of life” (free translation). More specifically, through marriage two people assume, towards each other and before the State and the community, that they intend to form a family in full communion of life, thus constituting a bond of a tendily perpetual character and disciplined by a proper legal regime, defined by law.
Currently, marriage is based on the equal rights and duties of the spouses, to whom it is mutually incumbent the direction of the family and who are mutually attached to the duties of respect, fidelity, cohabitation, cooperation and assistance.
Marriage also has consequences for the marital property status of the spouses, which differs depending on the property regime chosen voluntarily or applied by law. For more information on matrimonial property regimes, please see our articles on property regimes here.
In Portugal, marriage, whether civil or religious, can only be celebrated by people who, according to the law, have the capacity to contract marriage. Capacity is defined by the negative, having capacity all people in relation to whom there is no marital impediment.
Cases of marital impediments are, for example, age under 16 years, or previous undissolved marriages.
Start of the marriage process and necessary documentation
The process leading to the celebration of marriage can be initiated directly with the Civil Registry Office (Conservatória do Registo Civil), or through the Internet (through the Civil Online website, functionality available only to Portuguese citizens or Brazilian citizens with the general statute of equality of rights and duties (estatuto geral de igualdade de direitos e deveres), under the Treaty of Porto Seguro).
The process begins by submitting an initial declaration of willingness to marry, signed by the couple or by the prosecutor representing them, requesting the beginning of the marriage process.
The application must indicate the modality of marriage (civil, catholic or civil in a religious form), the matrimonial property regime (or the certificate of the prenuptial agreement, if it has been concluded outside the civil registry office), and the place, date and time of the wedding – which must be agreed with the civil registry office clerk.
In such a way that the Civil registry office can attest to the matrimonial capacity of the couple, the application must be accompanied by the identification papers of the engaged couple, in particular the citizen card or, in the case that one or both of them are foreigners, the passport, birth certificate and residence permit card.
For those who have already been married, the Civil Registry Office usually requests the presentation of a marriage certificate, duly recorded with the indication of their dissolution and corresponding cause, as well as the presentation of the death certificate of the previous spouse (in cases of a widower).
If one of the members is over 16 years of age but has not yet completed the age of 18, the application must still be accompanied by the consent of the parents or their legal representative; if this authorisation cannot be obtained, the application must be accompanied by a special request to the civil registry office clerk, in order to provide the necessary authorization.
As a rule, the cost of the marriage process is €120, whether it is started directly at the Civil Registry Office or through the Internet. However, there may be additional costs. For example, costs can rise to €200 if the celebration is to be held outside the Civil Registry Office or outside its opening hours (on a Saturday, Sunday or public holiday). In turn, by opting for another matrimonial property regime than the communion of acquired or by making a prenuptial convention, the costs will also be different.
If the process is initiated via the Internet, payment must be made within 48 hours, after confirmation of the introduction of the necessary information by the applicant; if the process is initiated directly with the Civil Registry Office, payment must be made immediately at the time of delivery of the initial declaration of marriage, duly accompanied by the other documents.
In both cases, the organization of the marriage process only begins after confirmation of payment.
Subsequent procedures and Celebration of Marriage
When the process has begun, the Civil Registry Office will verify the matrimonial capacity of the spouses, through the so-called preliminary marriage process. In addition to the analysis of the documentation provided, the civil registry office clerk may also take several steps to attest to the matrimonial capacity.
In the event of any impediment, the bride and groom are notified, either in person or by registered letter and the preliminary marriage procedure is archived, and the couple have the possibility to appeal the decision.
After verifying the matrimonial capacity of the engaged couple, the Civil Registry Office issues the marriage certificate, that giver the couple six months to celebrate the marriage. However, until the time of the celebration, anyone can declare the impediments of which they are aware, thus frustrating the marriage celebration.
The celebration of the marriage is a public and solemn ceremony, and the future spouses (one of them may be represented by a prosecutor) and the civil registry office clerk or the minister of worship with competence for the celebration must always intervene in it; in certain cases, the law may still require the presence of two witnesses.
At that ceremony, the procedures of which are fully described in the law of the civil registry, or in the special legislation that regulates religious marriages, the spouses must again express the will to celebrate marriage, expressly and fully accepting its legal effects.
The marriage concluded in Portugal is mandatorily subject to registration, under penalty of ineffectiveness, consisting the registration in a seat signed at the time of the celebration, by the spouses, civil registry office clerk (or minister of worship) and witnesses (if any).
Catarina Caeiro Martins