The patrimonial effects of divorce and the legal position of the most fragile spouse under the law no. 61/2008, of October 31 | 2017

Author(s) Lisete Graciela Soares e Silva Ferrás
Advisor(s) Cristina Dias
Year 2017

Synopsis Starting with a historical review, both social and legal, initiated before the first Law of divorce in Portugal, this research quickly flows into the last great reform operated by Law no. 61/2008, October 31, object of this study in some of its repercussions. We have study some, but not all, of the patrimonial effects of divorce, particularly those that, we believe, to possess a more direct influence in the patrimonial situation in which the spouses are left, when they choose to follow the way of divorce, with special attention to the legal position of the most vulnerable spouse of the relation. Here we talk of the articles 1676º, no. 2, 1790º, 1791º of the Civil Code. In a contextualized perspective, we demystify the current egalitarian conjecture that takes over our thought and takes care of the spouse’s relationship, in a complete parity like position, ignoring all the dissimilarities that reality insists to put before our eyes and the social stereotypes in making perpetuate. Considering that the articles 1790º and 1791º were, until 2008, two patrimonial sanctions unilaterally applied to the sole or principal spouse guilty of the end of the marriage, and having the idea of guilt been expurgated of this new regime, it was left to the legislator to rethink its content. Rejecting the possibility of also opting for his purging, something somewhat logical once his reason of being was finished, the legislator opted, inversely and incomprehensibly, for its maintenance, extending those patrimonial consequences to both spouses unprotecting even more both parts, especially the neediest. Without any distinction, the legislator comes now to arbitrarily – to avoid the constitution of the divorce as a mean of acquiring property – impose himself to the very will of the spouses, in the name of nothing more than their excessive paternalism. We question to what extent the regrettable results of these solutions are commensurable with the regime gifted with the greatest freedom in private life and less constraintments on this so intimate plane, that the legislator in the Law project no. 509/X so proudly created, concluding regrettably by a negative response, which, instead of being softened, worsens with the figure of the compensatory credit of no. 2 of the 1676º, which, despite having intended to compensate the domestic work and seek to serve the desire to protect the most fragile spouse at the time of divorce, it doesn’t glimpse itself capable of an adequate answer to that fragility.

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2018-07-18T10:47:08+00:00