Although, strictly speaking, a de facto union is not considered, under article 36(1) of the Constitution of the Portuguese Republic, to be a family relationship, the truth is that, nowadays, it is one of the most commonly used forms for establishing family relationships.
The law has increasingly been conferring effects on de facto unions, both in terms of social protection and civil protection.
Indeed, at present, the de facto union is recognized and protected, both during its existence and after its termination, granting rights to its members arising from its cessation.
In this regard, and by way of example, we emphasize the protection afforded to the family home in the event of termination of the de facto union, whether through separation or the death of one of the members of the union.
Also, as regards the regulation of the exercise of parental responsibilities of children from families in a de facto union, the alignment with the situation of children of parents joined by marriage is complete.
As for the division of assets acquired by the members of the couple during the union, strictly speaking, one cannot speak of a division of a common pool of property.
Thus, where there is a de facto union and there are assets acquired during the period in which the de facto union existed, and such acquisition was made in co-ownership, upon its termination and for the purpose of allocating what there is, if there is no agreement on such allocation, an action for division of common property must be brought.
But when one of the members of the union acquired assets solely in his or her own name—having done so, for example, because the income resulting from both parties’ work made it possible—how can the other member of the couple, who has no right in law to such assets, be compensated?
The prevailing scholarly understanding is that this can be done in one of two ways:
In this second option, the member of the union who considers themselves harmed by having participated in the acquisition of assets to which they have no legal right may request that the other (who acquired the assets) be ordered to reimburse them to the fair extent to which the latter was enriched at the expense of the former’s corresponding impoverishment.
The concept of unjust enrichment is provided for in articles 473, 474 and 479(1) of the Civil Code and determines the obligation to restore on the part of the person who was enriched to the person who, because of that enrichment, was impoverished.
The case law of the higher courts (both the Courts of Appeal and the Supreme Court of Justice) has consistently held that the doctrine of unjust enrichment applies to protect the interests of the member of a terminated de facto union who has become impoverished, provided it is shown that the assets of one member of the union were increased at the expense of the other member without justification.
Therefore, in a situation of de facto union, where at a given moment the members decide to acquire assets, whether jointly or separately, it is important, in order to avoid future problems, to safeguard as clearly as possible the way in which those assets will be allocated between them in the event of the union’s termination.
Did you enjoy this article? Leave your comment below. Your opinion is important to us.
Also, subscribe to our blog to stay updated with our news and information.
Do you have any questions? Contact us.
