Civil union in the different jurisdictions and in Portugal
The recognition of a civil partnership or civil union (called união de fato in Portugal) allows two people living together as a couple to register their relationship before the competent public entities of the country where they reside.
There are enormous differences in the treatment of the civil partnerships in the different legal systems, namely regarding the following aspects:
(a) the possibility of recognition of a civil partnership;
(b) the rights conferred by a civil partnership;
(c) the recognition of a civil partnership celebrated abroad.
Regarding the possibility of recognizing a civil partnership, there are countries that do not recognize them at all, while some countries admit their recognition only for heterosexual couples and others, only for homosexual couples.
The forms of recognition of a civil partnership also vary greatly from country to country. The most common procedures for the official recognition of a civil partnership are:
(i) the judicial recognition of this factual situation through a special proceeding;
(ii) the celebration of a civil contract between the partners;
(iii) the public deed of the partnership; and/or
(iv) the simple declaration of the partners before the competent authorities.
In Portugal, it is possible: to obtain the officialization of a civil partnership through a simple declaration of the partners before the Parish Council (Junta de Freguesia) of the partners residence; the celebration of a civil contract of civil partnership; and the filing of a lawsuit for the civil partnership acknowledgment. All these alternatives are available to both, heterosexual and homosexual couples, residing in Portugal.
Portuguese law also determines that all acts of civil life of a Portuguese citizen made abroad, such as marriage and divorce, must be registered in the Portuguese Civil Registry, so that the registral reality is always in conformity with the substantive reality.
The legal obligation to register civil life acts in Portugal does not extend, however, to the civil partnership civil that took place abroad, since it is not an act subject to civil registration in Portugal.
Portuguese citizenship through civil union with a Portuguese national – the need of a court recognition
Regarding the acquisition of Portuguese nationality, the nationality law foresees the possibility that unmarried partners who have been living in a civil partnership with a Portuguese citizen for at least 3 (three) years have the right to request Portuguese nationality through naturalization.
The regulation of the nationality law, in turn, determines that the civil partner of a Portuguese citizen may declare his/her wish to acquire Portuguese nationality, provided that he/she has previously obtained judicial recognition of the civil partnership.
This judicial recognition of any factual status must be performed by the competent court in the country where it takes place. Therefore, for a civil partnership that occurred abroad to be recognized for the acquisition of Portuguese nationality, it is necessary to proceed with the judicial recognition of the civil partnership in the country of residence of the partners.
Even among the countries that do recognize the civil partnership, many do not have a formal mean of registering the union or have procedures merely declaratory of the partnership, sometimes before notary authorities and sometimes through civil contracts or the like.
For these cases, differently from what happens with divorce decreed abroad, the Portuguese Judiciary has recently consolidated the understanding that a public notarial deed or equivalent document in the different jurisdictions declaring the civil partnership, is not an adequate means of proof to fulfil the legal requirement foreseen in the Nationality Law. Therefore, it will be necessary to request a court validation of this document on the country of residence of the partners.
However, as we have seen, some countries do not even recognize civil unions and therefore there is no procedural means of obtaining this judicial recognition of the partnership.
In these cases, it is our understanding that it will be possible to request the recognition of the civil partnership directly in Portugal, since the family member of the Portuguese citizen living abroad cannot have his right to obtain Portuguese nationality because the couple's country of residence does not recognize the civil union situation, a form of legitimate family organization that is legally recognized in Portugal.
In these cases, our understanding is that it will be possible to apply for recognition of the civil union directly in Portugal, since the family member of the Portuguese citizen living abroad cannot have his/her right to obtain Portuguese nationality impeded because the couple's country of residence does not recognize a civil partnership, a legitimate family organization, legally recognized in Portugal.
Portuguese judicial act for revision/confirmation of foreign court decision the recognized a civil union
All decisions made by a foreign court, to have effect in Portugal, must be reviewed and confirmed by the Portuguese Court of Appeal.
In this sense, for it to be possible to homologate in Portugal the civil partnership that occurred abroad, it will be necessary to review the foreign court decision that recognized the civil partnership overseas, through a judicial proceeding to be conducted by a lawyer qualified to practice law in Portugal.
The main document to be presented in this judicial process of revision is the certificate of the foreign court decision that recognized the civil partnership, duly legalized.
In order for this judicial process to be more fluid and agile, it is recommended that the civil partners act jointly, i.e., that both parties grant powers to the same representative to represent them in the foreign court decision review lawsuit.
It is important to emphasize that if the Portuguese citizen has been married prior to the civil partnership, it will be necessary for each of his marriages to be transcribed in Portugal. And to have the second and subsequent marriages transcribed, it will always be necessary to homologate the dissolution of the previous marriage and, therefore, file a foreign court decision review act for each divorce that may have been decreed in a foreign country (in this regard, see my previous article Foreign Court Decision Review of divorce and Portuguese Citizenship).
Conclusion
Portugal recognizes the civil partnership for hetero or same sex couples on its territory by several means.
The Portuguese nationality law determines that those who are in a civil partnership to Portuguese citizens may, if they so desire, apply for Portuguese nationality by naturalization.
The civil partnership that occurred outside Portuguese territory, in an attempt to obtain the Portuguese citizenship, must be recognized by a court decision in the respective country.
On the other hand, all foreign court decisions, to be valid in Portugal, must be reviewed and confirmed through a foreign court decision review lawsuit.
Therefore, in order to acquire Portuguese nationality through a civil partnership with a Portuguese citizen that occurred abroad, it is necessary to obtain judicial recognition of the partnership in the country of residence of the partners and subsequently obtain a judicial review of this decision in Portugal.
This article was originally published on the author's personal profile, Lidiane de Carvalho, on November 30, 2022.
For any questions about civil partnership or application for Portuguese Nationality, please do not hesitate to contact us.
