Marriage and Matrimonial Property Regimes Between Brazil and Portugal

From Brazil's standpoint: the LINDB

The matrimonial property regime, whether statutory or agreed, is governed by the law of the country where the betrothed were domiciled and, if their domiciles differed, by that of the first marital domicile (Article 7, § 4, of the LINDB (Law of Introduction to the Norms of Brazilian Law)). The rule looks at the time of the marriage: a later move to Portugal does not change, from Brazil's standpoint, the law governing the regime.

From Portugal's standpoint: marriages since January 29, 2019

Portugal participates in the enhanced cooperation under Regulation (EU) 2016/1103, applicable since January 29, 2019 (recital 11 and Article 70). The applicable-law rules apply to those who married or chose the law of the regime after that date (Article 69(3)).

• Without a choice: the law of the State of the spouses' first common habitual residence after the marriage applies; failing that, the law of their common nationality at the time of the marriage; failing that, the law of the State with which the couple has the closest connection (Article 26(1)). If the spouses have more than one common nationality, nationality does not serve as a criterion (Article 26(2)).
• With a choice: spouses or future spouses may choose the law of the habitual residence of either of them or the law of the nationality of either of them (Article 22(1)).
• The designated law applies even if it is that of a country outside the Union, such as Brazil (Article 20), to all assets under the regime, wherever they are located (Article 21), and without renvoi (Article 32).

From Portugal's standpoint: earlier marriages

For marriages before January 29, 2019, with no subsequent choice of law, Article 53 of the Portuguese Civil Code applies: the common national law of the betrothed at the time of the marriage; without a common nationality, that of their common habitual residence at the date of the marriage; and, failing that, that of the first marital residence. For those who are also Portuguese, only Portuguese nationality is relevant under Portuguese law (Article 27 of the Nationality Act).

Where the two systems may diverge

A couple who marries in Brazil, where both are domiciled, and establishes their first common residence in Portugal may have, from Brazil's standpoint, a regime governed by Brazilian law and, from Portugal's standpoint, by Portuguese law. This divergence should be identified before selling assets, partitioning property or planning succession.

A marriage celebrated abroad by a Portuguese citizen must be registered in Portugal. When it was not celebrated before the Portuguese consul, registration is made by transcription of the marriage document, which may be requested at any time by any interested party (Article 184 of the Civil Registry Code (Código do Registo Civil)) and directly at any registry office (Article 187).

• Preliminary procedure: if the marriage was not preceded by the Portuguese marriage procedure, the transcription depends on that procedure being carried out first and is refused if there is an impediment that makes the marriage voidable and that still subsists (Articles 185 and 187(2)).
• Retroactivity: once registered, the civil effects of the marriage are retroactive to the date of celebration, without prejudice to compatible third-party rights, unless the transcription was made within the following seven days (Article 188).
• Property regime: the record must state whether there was a prenuptial agreement and the regime stipulated (Article 181(e)). An agreement presented after the marriage and a change of regime are registered by annotation (averbamento) (Article 190) and only take effect against third parties from registration (Article 191).

Transcription registers a marriage that already exists. The property regime remains the one that results from the applicable law, so it is advisable to check, in the application, the regime and the Brazilian prenuptial agreement, if any.

Transcription is also the first step toward citizenship by marriage. See the transcriptions page. In the opposite direction, a marriage of Brazilians celebrated in Portugal is transcribed (trasladado) at the 1st Civil Registry Office of the domicile in Brazil when it is to produce effects in that country (Article 32, § 1, of Law 6,015/1973).

In Brazil

• Partial community (comunhão parcial; the statutory regime absent a prenuptial agreement: Article 1,640 of the Civil Code): assets acquired during the marriage become common property (Article 1,658). Excluded are assets owned before the marriage, those received by gift or inheritance and, according to the statutory text, each spouse's earnings from personal work (Article 1,659, I and VI).
• Universal community: present and future assets become common property, with the statutory exceptions (Articles 1,667 and 1,668).
• Final participation in acquisitions: each spouse has their own separate property and, upon dissolution, is entitled to half of the assets acquired by the couple for consideration (Article 1,672).
• Separation: each spouse manages and may freely dispose of their own assets (Article 1,687).

In Portugal

• Community of acquired property (comunhão de adquiridos; the default regime: Article 1717 of the Portuguese Civil Code): assets owned before the marriage and those received by succession or gift are separate property (Article 1722); the proceeds of the spouses' work and assets acquired during the marriage are common property (Article 1724).
• General community: the common property covers present and future assets, with exceptions (Articles 1732 and 1733). It cannot be agreed upon by anyone who already has children (Article 1699(2)).
• Separation: each spouse retains ownership and enjoyment of their own assets (Article 1735).

Practical differences

• Brazilian partial community and Portuguese community of acquired property are similar, but not identical; the treatment of employment income is one example.
• Final participation in acquisitions is not among the standard regimes of the Portuguese Civil Code.
• In Portugal, on divorce, neither spouse may receive more in the partition than they would receive under community of acquired property (Article 1790).
• To sell real estate, Brazil requires the spouse's authorization, except under absolute separation (Article 1,647); Portugal requires the consent of both, except under separation, and always for the family home (casa de morada de família) (Article 1682-A).

In Brazil

The separation of property regime is mandatory in the marriage (Article 1,641 of the Civil Code):

• of anyone who marries in disregard of the suspensive grounds, such as a divorced person whose partition has not yet been approved or decided (Articles 1,523 and 1,641, I);
• of a person over 70 years of age (Article 1,641, II);
• of anyone who depends on judicial authorization to marry (Article 1,641, III).

In Theme 1,236, the Supreme Federal Court (STF) held that, in marriages and stable unions of a person over 70, mandatory separation may be set aside by an express declaration of the parties in a public deed.

In Portugal

The following are always deemed to have been contracted under the separation of property regime (Article 1720 of the Portuguese Civil Code):

• a marriage celebrated without the prior preliminary marriage procedure;
• the marriage of anyone who has already reached the age of 60.

This does not prevent the betrothed from making gifts to each other (Article 1720(2)).

The reference ages are different (70 in Brazil, 60 in Portugal). Which rule applies depends on the law governing the couple's regime, discussed in the first section.

Prenuptial agreement in Brazil

• Before the marriage, the betrothed may stipulate whatever they wish regarding their property (Article 1,639 of the Civil Code). The choice of partial community is recorded in writing in the marriage qualification procedure; the other regimes require a prenuptial agreement by public deed (Article 1,640, sole paragraph).
• The agreement is void if not made by public deed and ineffective if the marriage does not follow (Article 1,653).
• It only takes effect against third parties after registration at the Real Estate Registry of the spouses' domicile (Article 1,657).
• It cannot deal with the inheritance of a living person (Article 426).

Prenuptial agreement (convenção antenupcial) in Portugal

• Spouses may choose one of the regimes in the Code or stipulate whatever they wish, within the limits of the law (Article 1698 of the Portuguese Civil Code), but they may not set the regime by a mere general reference to a foreign law (Article 1718).
• It is made by public deed or by declaration before a civil registry officer (Article 1710; Article 189 of the Civil Registry Code).
• It only takes effect against third parties after registration (Article 1711).
• It may contain provisions upon death, including the reciprocal waiver of forced heir status (herdeiro legitimário) (Article 1700).

Choice of applicable law

From Portugal's standpoint, the agreement choosing the law of the regime must be in writing, dated and signed by both, observing any additional formal requirements of the Member State of habitual residence (Articles 22 and 23 of Regulation (EU) 2016/1103). An agreement designed for both countries should take into account the form required in each and registration in both systems.

In Brazil: yes, through the courts

A change is permitted by judicial authorization, upon a reasoned request by both spouses, once the validity of the reasons has been established and without prejudice to third-party rights (Article 1,639, § 2, of the Civil Code). The judge hears the Public Prosecutor's Office and publishes a public notice, and may decide only 30 days later; the judgment is annotated in the civil registry and in the real estate registry (Article 734 of the CPC).

In a stable union (união estável), the regime may be changed directly at the civil registry, at the request of both partners, without retroactive effect (Article 547 of CNJ Provision 149/2023 (Provimento)). See the stable union page.

In Portugal: the rule is immutability

Except in the cases provided for by law, neither the prenuptial agreement nor the statutory regime may be changed after the marriage (Article 1714 of the Portuguese Civil Code). The exceptions include simple judicial separation of property and judicial separation of persons and property (Article 1715).

When there is a foreign element

• For marriages prior to the Regulation, Portuguese law accepts a change of regime if the law governing the relations between the spouses permits it (Articles 52 and 54 of the Portuguese Civil Code), without retroactive effect to the detriment of third parties.
• The Regulation allows the law applicable to the regime to be changed during the marriage; unless otherwise agreed, the change only takes effect for the future and may not prejudice third parties (Article 22(2) and (3)).
• A Brazilian judgment changing the regime may require recognition (review) of a foreign judgment in Portugal (revisão de sentença estrangeira) to produce effects in Portugal (Article 978 of the Portuguese CPC).

On the death of a spouse, the half share of the marital property (meação) is first separated according to the matrimonial property regime; the estate is then partitioned according to the law governing the succession. These are two laws that may differ: the Succession Regulation excludes matrimonial property regimes (Art. 1(2)(d) of Regulation (EU) 650/2012) and the Matrimonial Property Regimes Regulation excludes succession (Art. 1(2)(d) of Regulation (EU) 2016/1103).

In Brazil, the regime changes the spouse's position

The spouse is a forced heir (herdeiro necessário) (Article 1,845), but only inherits alongside the descendants if they were not married under universal community or mandatory separation or, under partial community, if the deceased left separate property (Article 1,829, I). Under agreed separation, the spouse does inherit alongside them. When inheriting alongside the descendants, the spouse receives a share equal to theirs, never less than one quarter if the spouse is an ascendant of the heirs (Article 1,832).

In Portugal, the spouse inherits under any regime

The spouse belongs to the first class of successors together with the descendants (Article 2133 of the Portuguese Civil Code), with a share of no less than one quarter of the estate (Article 2139), and is a forced heir (herdeiro legitimário) (Article 2157), whatever the property regime.

The reciprocal waiver under Law 48/2018

• Since September 1, 2018, a prenuptial agreement may contain a reciprocal waiver of forced heir status in relation to the other spouse, provided that the regime, whether agreed or mandatory, is separation of property (Article 1700(1)(c) and (3)).
• The waiver may be made conditional, for example, on the existence of children, and does not affect the right to maintenance or social benefits payable on death (Article 1707-A(1) and (2)).
• If the family home belonged to the deceased, the spouse may remain in it for five years, with a real right of habitation and use of its contents; the right is for life if the spouse is 65 or older on the date the succession opens (Article 1707-A(3) and (10)).
• Gifts in favor of a spouse who has waived are not considered to encroach on the forced share (inoficiosas) up to the value of the forced heirship share (legítima) that would have been due to them (Article 2168(2)).

Brazilian law has no equivalent mechanism and prohibits contracts on the inheritance of a living person (Article 426 of the Civil Code). The effect of the waiver on assets in Brazil depends on the law governing the succession. See the international succession page.

With lawyers in São Paulo and in Albufeira, Sene & Araújo assists couples with lives and assets in Brazil and in Portugal.

1. Diagnosis of the regime: date and place of the marriage, domiciles, nationalities, prenuptial agreement and applicable law in each country.
2. Transcription and registrations: transcription of the marriage in Portugal, transcription (traslado) in Brazil and registration of prenuptial agreements.
3. Before marrying: drafting of a prenuptial agreement (pacto antenupcial) in Brazil and a prenuptial agreement (convenção antenupcial) in Portugal, including, where appropriate, choice of law and reciprocal waiver of heir status.
4. During the marriage: court application to change the regime in Brazil and analysis of the choice of law from Portugal's standpoint.
5. Divorce and partition: divorce, recognition of foreign judgments and partition of assets in each country.
6. Succession and citizenship: coordination with international succession and with the application for citizenship by marriage.

The work begins with a reading of the certificates and of the prenuptial agreement, if any. On that basis, we indicate the regime in each country and the possible next steps.