Civil Partnerships and Portuguese Nationality: Does the New Legal Wording Resolve or Merely Postpone the Question of the Competent Court?
- 2 days ago
- 8 min read
By Miguel Becerra Quintero and Lidiane de Carvalho
Does the new wording of Article 3(3) of the Nationality Act, approved by Law No. 37/81 of 3 October, as currently in force following Organic Law No. 1/2026 of 18 May, finally resolve the problems surrounding the judicial recognition of common-law partnerships (civil partnership, de facto relationship, unmarried partners) for applications to acquire Portuguese nationality by declaration on that basis?
Since 2006, the Nationality Act has allowed a foreign national to acquire Portuguese nationality on the basis of a civil partnership with a Portuguese citizen, regardless of the sex of the partners and of their place of cohabitation, provided that they have lived together for more than three years and that the partnership has been judicially recognized. In theory, the legal framework appears straightforward: establish the existence of the relationship, obtain judicial recognition of it and, on the basis of that decision, proceed with the nationality application.
In practice, however, the situation has been far from simple.
Over the last few years, this possibility of acquiring Portuguese nationality by declaration has raised numerous practical and legal issues, centered above all on two very specific questions:
Which Portuguese court, civil or family, has jurisdiction to recognize the civil partnership for nationality purposes?
Where the civil partnership was formed abroad, is a foreign court decision recognizing that partnership sufficient to support an application for Portuguese nationality?
A significant part of the legal certainty, or uncertainty, in this field turns on these two questions.
As to the broader framework of the recent amendments to the Nationality Act and their impact on those who have already chosen Portugal, we addressed this issue in greater detail in: Changes to the nationality law: what they may mean for those who have already chosen Portugal
1. Which Court Has Jurisdiction?
At first glance, one might assume that a matter so closely connected to family life should fall within the jurisdiction of the family courts. For a long time, that was indeed the approach adopted in several decisions: where the judicial recognition of a civil partnership was at stake, the matter was seen as falling within family law, meaning that the proceedings should be brought before the family and minors courts under the general rules on subject-matter jurisdiction. Along those lines, several courts emphasized that a civil partnership is now a recognized form of family life and that actions concerning it naturally belong within the sphere of matters relating to personal status and family.
However, the Nationality Act itself, in the wording introduced in 2006, expressly stated that the action for recognition of the civil partnership had to be brought “before the civil court”. From that point onwards, what had seemed clear no longer was.
A significant strand of case law then began to hold that, by expressly referring to the “civil court”, the legislature had acted deliberately, thereby creating a special rule of jurisdiction. According to that interpretation, the general rules on allocation of subject-matter jurisdiction, which would in principle point to the family and minors courts, no longer applied to this type of action, and the civil court instead had jurisdiction by virtue of an express legislative indication.
Courts adopting this position explained that the core of the case did not truly lie in a family dispute between two individuals, but rather in the verification of a precondition for the exercise of a right vis-à-vis the State: the acquisition of Portuguese nationality. Because the action was brought against the Portuguese State, it was therefore understood to resemble a civil dispute of a special kind more than a typical family-law proceeding. This view gained traction in a number of decisions and came to assume particular prominence in part of the later case law.
The result was a genuine back-and-forth:
in some cases, proceedings were transferred from the family courts to the civil courts, with decisions holding that the Nationality Act contained a special rule capable of displacing the jurisdiction of the family courts;
in others, the movement went in the opposite direction, with courts emphasizing that the essential nature of the dispute continued to lie in a relationship of a family nature and that jurisdiction should therefore remain with the family and minors courts.
After several years of conflicting decisions, this interpretation appeared to gain greater consistency, including in decisions of higher courts, to the effect that, under the wording of the Nationality Act then in force, these actions should be heard by the civil courts as an exception to the general rules. In several decisions, it was held that the legislature had consciously intended to concentrate this type of litigation in that jurisdiction.
Nevertheless, other courts, including higher courts, continued to argue that the matter was, in its essence, one of family law and that the reference to the “civil court” was not the appropriate normative basis for reallocating jurisdiction within the judicial system.
On that view, the organization of the courts is governed by the Law on the Organization of the Judicial System and should not be displaced by the wording of the Nationality Act.
It is worth noting that this tension between the protection of family life and the criteria of legal integration had already been analyzed in greater detail in our article: Nationality through Civil Partnership: between the protection of the family and the new integration criteria.
Just as a certain interpretative pattern was beginning to emerge, albeit far from settled, in favor of the jurisdiction of the civil courts, the legislature chose to amend the statutory text, replacing the reference to the “civil court” with the broader expression “competent court”.
At first sight, one might think that this opens the way for these actions naturally to return to the family courts. Even so, in the absence of an express indication clearly resolving the interaction between the Nationality Act and the organizational rules on jurisdiction, the truth is that the problem may merely have been shifted elsewhere: the discussion is no longer whether the matter belongs before the civil or family courts, but rather who, exactly, is the “competent court”. In other words, the new wording risks leaving matters largely unchanged, allowing conflicting decisions to continue until case law once again finds a point of equilibrium.
It remains to be seen whether, in light of the new wording now in force, this issue can be regarded as definitively settled, making future judicial intervention unnecessary to harmonize approaches or resolve interpretative divergences. Indeed, a combined reading of the new regime together with the Law on the Organization of the Judicial System seems to point towards a clearer solution: family and minors courts may now be regarded as having jurisdiction over non-contentious proceedings relating to civil partnerships. If so, such actions may henceforth be brought directly before those courts, without recourse to the civil courts, thereby putting an end to a debate that has generated uncertainty in practice for years.
2. And what happens when the civil partnership has been recognized abroad?
The complexity increases when one is dealing with couples living outside Portugal who have already obtained, in their country of residence, a judicial decision recognizing their civil partnership, often under the designation of common law partnership or de facto relationship.
As already mentioned, the Nationality Act does not limit this route to acquiring nationality to persons residing in Portugal. On the contrary, it allows foreign nationals living in a civil partnership with Portuguese citizens, even while residing abroad, to declare their wish to acquire Portuguese nationality. It is therefore natural that many couples ask: if we already have a foreign court decision recognizing our partnership, would it not be enough to have that decision confirmed in Portugal and then, on that basis, apply for nationality?
For some time, this seemed to be a logical solution: to use proceedings for the proceedings for the recognition and enforcement of a foreign judgment (commonly referred to as exequatur), as a bridge between the foreign decision and the Portuguese legal order. And, indeed, several courts recognized that it made sense to review and confirm foreign judgments or decisions declaring the existence of a civil partnership or an equivalent legal status so that they could produce effects in Portugal.
But a decisive question then arose: what effects, exactly, does that review produce?
The position now emerging is relatively clear:
the review and confirmation of a foreign judgment recognizing a civil partnership may, in the abstract, be admitted, provided that the applicable procedural requirements are met;
a different question, however, is whether that review is sufficient, by itself, to satisfy the judicial recognition requirement laid down in the nationality regime, or whether it should instead serve primarily as relevant evidence in proceedings brought in Portugal.
In several decisions, it has been understood that the Portuguese legislature created a specific mechanism for verifying whether the requirements for acquiring nationality on the basis of a civil partnership are fulfilled.
According to that interpretation, this mechanism takes the form of an action brought before a Portuguese court against the Portuguese State, involving its own assessment of the evidence and the intervention of the Public Prosecutor’s Office representing the State, precisely because the acquisition of Portuguese nationality is at stake.
In other words:
Yes, having a foreign decision recognizing the civil partnership confirmed in Portugal may be useful;
No, at present, that confirmation is not, as a rule, regarded by the Portuguese Institute of Registries and Notaries (IRN) as sufficient to satisfy the requirement laid down in Article 3(3) of the Nationality Act. This position has been accompanied by recent Portuguese case law.
Accordingly, a decision reviewing and confirming a foreign judgment may function as relevant evidence in the action to be brought in Portugal, without necessarily replacing that action. In several decisions, courts have warned that the opposite solution would risk opening a parallel route for satisfying a requirement that the legislature specifically linked to the nationality regime.
3. What does this mean for those seeking to acquire nationality?
From the perspective of the couples and families seeking legal recognition of their connection to Portugal, all this translates into something very simple: uncertainty, delay and frustration.
Conflicts of jurisdiction between courts, contradictory decisions as to the correct forum, doubts over the effect of foreign judgments and the absence of clear guidance from the administrative authorities have, over recent years, created a situation of legal uncertainty that should never have arisen.
Issues that could have been resolved through clear and coherent legislative drafting have instead turned into:
negative conflicts of jurisdiction between courts;
successive transfers of cases from one court to another;
uncertainty as to the correct procedural route;
significant delays in nationality applications that depend only on the recognition of a life situation that, in many cases, has existed for years.
The new wording of Article 3(3) of the Nationality Act may, in theory, open the way to an understanding more closely aligned with the family nature of these situations. It may also, if followed by further legislative or regulatory clarification, make it possible to define without ambiguity which court has jurisdiction and under what conditions foreign decisions may be taken into account.
But, for the moment, the chosen formula, “competent court”, viewed against the background of the existing conflicts of jurisdiction, remains sufficiently open-ended that it does not entirely remove practical uncertainty: many affected persons still do not know with confidence which court they should seize, nor what the fastest and most effective procedural path is for asserting their rights.
Ultimately, the issue is not merely theoretical. It has real consequences for individuals and families seeking certainty about their legal status and future in Portugal. Laws should be sufficiently clear in themselves. They should reduce ambiguities, guarantee predictability and allow those to whom they apply to understand, with confidence, what their rights are and what steps are required to exercise them.
In the field of nationality, this requirement is particularly sensitive: at stake are life trajectories, family projects, emotional bonds and identities that should not be left suspended in technical debates over subject-matter jurisdiction within the judicial system or over the meaning of an expression such as “civil court” or “competent court”.
Unfortunately, in this specific area, the national legislature is still far from achieving that goal. The new wording of Article 3(3) may be a first step towards clarification; but without clear regulation and a firm choice as to the structure of the system, it risks being no more than that: a first step, but an insufficient one.
Until then, we will inevitably continue to navigate a period of uncertainty in which each case will require careful analysis to determine which court should decide the matter and how decisions delivered abroad may be relied upon. It is precisely in contexts such as these that it becomes all the more important to ensure that citizens are given what the law should always provide: legal certainty, predictability and consistent respect for their family life.
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