The break-up of an unmarried couple in Portugal, living in a common law relationship or cohabitation, may also give rise to an amicable decision to separate.
It may change residence before the Family Justice Judge similar to the divorce procedure by mutual consent. If the spouses separate, they may file a joint request. Article 373-2-7 expressly provides for an amicable procedure:
"Parents may apply to the family court to homologate the agreement. By which they organize the arrangements for the exercise of parental authority. And fix the contribution to the maintenance and upbringing of the child. The judge homologates the agreement. Unless it finds that it does not sufficiently protect the interest of the child. Or that the parents' consent has not been freely given. "
In the event that a joint request is not possible, the judge will have to decide. It is important to remember that in case of separation of an unmarried couple, no financial claim can be made between the spouses for themselves.
The requests will only concern children. For example, the judge cannot assign the right to the lease (if rented) or the undivided housing to one parent or the other.
The couple that decides to separate will have to find a solution. One of them will have to leave the residence and relocate. This impossibility for the Family Justice to decide on the allocation, even temporary. Housing is one of the major problems when unmarried couples separate. With regard to children (parental authority, the right of custody, residence, alternate residence, the right of access and lodging or alimony), the family judge will rule in the same way as for a couple who divorces. There is no difference in child custody between a married or unmarried couple.
While some separations go serenely, others are more conflictual
However, the Family Justice Judge is called upon to intervene in all these cases. In fact, unmarried parents who separate, can amicably fix all measures relating to children. But because the initially peaceful situation can deteriorate, in order to simplify everyday life, it seems preferable to establish a legal framework. The unmarried parents have, in any event, the opportunity to seize the Family Justice Judge so that the latter decides on:
- Fixing the exercise of parental authority;
- The children's residence;
- The terms of access and accommodation of the parent who does not house the children;
- The fixing and revision of the amount of the contribution to the maintenance and upbringing of children;
- The Family Justice Judge will be able to reconcile the parties in order to avoid conflicts and fix things in a strict judgment;
- The assistance of a lawyer in this type of procedure is not mandatory;
- Nevertheless, in view of the considerable stakes, the advice of a lawyer seems decisive.
Referral to the Judge may be at the initiative of a single parent or both. To do this, it will be appropriate to file a petition at the office of the Family Court Judge of the High Court of the place of residence of the family or the place of residence of the child at the parent's home - if the parents are already separated.
Finally, in case of emergency and when the Family Court Judge has authorized. It will be possible to have the defendant issue a summons to court by the bailiff for a specified date.
On the fixing of the exercise of parental authority
Article 371-1 of the Civil Code provides that:
"Parental authority is a set of rights and duties whose purpose is the best interests of the child. It belongs to the parents until the majority or the emancipation of the child to protect it in its security, its health, and its morality. To ensure its education and to allow its development, in the respect due to its person. Parents associate the child with the decisions that concern him, according to his age and his degree of maturity."
The separation of the parents, therefore, has no effect on the joint exercise of parental authority, which remains the principle. Both parents will have to maintain personal relationships with the children. But also respect their relationship with the other parent. On the other hand, the Family Justice Judge may be required to entrust the exercise of parental authority to a single parent if the interests of the child so require.
On fixing the habitual residence of children
Where the parents do not agree on the determination of the habitual residence of the children, the Family Justice Judge will rule on the best interests of the child to live with his father or mother. The Family Justice Judge may also order the establishment of an alternating residence if all the conditions are met.
Conditions of access and accommodation
When the residence of the children has been fixed at the home of one of the parents. The Family Justice Judge will be able to pronounce a right of access and accommodation for the benefit of the other parent. The exercise of the right of access and accommodation may be denied to the other parent only for serious reasons. If, in principle, the right of access and lodging is exercised freely, it is usual that it takes the form of a right of visit and of conventional lodging (i.e.; a weekend or two), (a day or several days in addition to a weekend or two) or restricted (simple right of visit without right of lodging).
The right of access and of accommodation will be fixed according to the elements brought to the knowledge of the Judge as well as regarding the interest of the child.
The fixing and revision of the amount of the contribution to the maintenance and upbringing of children
The contribution to the maintenance and upbringing of the children takes the form of an alimony paid. Most of the time, to the parent who assumes their daily load. When an alternating residence has been set up. A contribution can still be paid by one of the two parents. In case of a significant disparity between the incomes of each, in order to calculate the amount of the contribution to the maintenance and upbringing of the children, the Judge will first consider the income of the person who pays the pension. And to a lesser extent, the person who receives it, then the needs of the children, with regard to the former way of life.
To assist the Family Justice in setting the amount of the contribution, a reference table is available on the website of the Ministry of Justice. The contribution to maintenance and education does not stop with the majority of the child when the latter is not able to assume financially. Unless new elements appear in the situations of each parent, it cannot be modified.