Portuguese Civil Code

1867
Civil Law
 Is the most important area of law.
 A proper understanding of civil law is important for

understanding the entire field of civil law.

 The word Civis means citizen and civil means ‘relating

to’ so civil means relating to citizen.

 Hence Civil law is the law regulating relations among

citizens.
 Civil law therefore is the law regulating private

relations amongst citizens.

 A civil code has to deal with all the areas of life

wherein such pvt. relations need to be regulated.

Codification
 It is a whole entity integrated organically.
 It is an official compilation of all permanent laws in force
systematically consolidated and classified according to the
subject matter.
 The term codification has a technical meaning.
 It means not only merely collecting, compiling or consolidating
laws, but organising them in a synthetic and systematic
manner and using the rules relating to a particular branch of
law.
 The purpose of code is to organise the law scientifically and
mould it into a unified system of principles for an orderly
social life.
 The Portuguese Civil Code of 1867 was in force in
Portuguese territory.
 However the civil legislation deserves to be known.
 The code of 1867 represented the first Portuguese
codification of civil law.
 It was applied in Portugal and in the territories under the
Portuguese administration.
 P.C.C., 1867 came into force in July 1870 in the erstwhile
colonial territory of Goa.
 Its provision of family laws and succession laws are still
applied in Goa.
  The Code is divided into 4 parts and Total Articles 2538
1. On Civil Capacity(Arts 1 -358)
2. On Acquiring Rights(Arts 359-2166)
3. On Property Rights(Arts 2167-2360)
4. On Protection of Rights & remedies available in case of violation(Arts 2367-
2538)
 It is the most comprehensive piece of legislation.
 Post liberation of Goa in 1961, some 300 central Indian laws were extended to
the State of Goa and large portion of the 1867 Code stood repealed.

 The main civil laws are the following:

 Law of Marriage
 Law of Divorce
 Law of Protection of Children
1. Decree no. 1 of 25 December 1910 regarding marriage as a civil contract
2. Decree no. 2 of the same date regarding affiliation-Law of Children
3. Decree of 3rd of November 1910 better known as Divorce Law.
 The law of marriage was originally covered by Arts 1056 to
1239 of the P.C.C., 1867.
 In 1910, the law of marriage was modified and Divorce was
introduced for the first time.
 Art 1056:Concept of marriage as a civil contract:-Marriage is a
perpetual contract made between the two persons of
different sexes with the purpose of legitimately constituting a
family.
 Art 1057: Secular nature of marriage:- The marriage shall be
solemnised before the official of Civil Registration under the
conditions and in the manner established in the civil law.
 Initially marriage was conceived of with three conditions:
a. That this contract is perpetual in nature.
b. That it is solemnised between two persons of different sexes.
c. That its objective is to constitute family.
 But with the Act of marriage as a civil contract, the element of

perpetuity was excluded since dissolution of marriage through

divorce was allowed in the year 1910.
 Thus in the Art 1 of the law of 1910, the word perpetual was

removed and in Art 2 it was provided that contract is purely civil and
presumed to be perpetual without prejudice to its dissolution by
way of divorce, which means that presumption of perpetuity was
continued to exist in principle, since divorce was recognised as an
exceptional.
 Art 1058: Impediments to marriage – Marriage is forbidden : The
following shall not contract marriage
1. Minors below twenty-one years and majors interdicted from
administering their persons and properties, until they obtain the consent
of their parents or of those who represent them, in accordance with
Article 1061;
2. To the guardian and his descendants, with the ward, as long as the
guardianship has not ceased and the accounts of guardianship have not
been approved, except if the deceased father or mother has permitted it
in his/her will or in any other authentic document
3. To the adulterous spouse with the abettor convicted as such;
4. To any spouse convicted of committing or abetting the commission of
murder or attempt to commit murder of his/her spouse, with the person
who committed or abetted the commission of the said offence or has
contributed to the same;
5. Those who have the impediment of religious order or those who are
bound by vows recognised by law.
Law of Marriage, 1910
 Marriage is defined in Art 1 of decree dated
25/12/1910 as a “contract celebrated between two
people of different sexes for the purpose of
legitimately establishing a family”.
 There are four characteristics:-
 a) Contractual nature
 b) Presumption of perpetuity
 c) Non confessional nature
 d) Solemnity
a. Contractual Nature
 The thesis that marriage is in the nature of a contract is not
universally accepted. Although marriage has traditionally always
been regarded as a contract.
 Some authors have refuted this qualification of its legal nature.
 For e.g. For Durguit and the French realist school, marriage is an act-
union.
 Other French jurists sustain that it is a real institution.
 According to the third approach, marriage is a public law or
administrative act or mixed act given the constitutive intervention of
the State acting by a civil registry official in the celebration thereof.
 The constitutive intervention means the civil registry official role is
not only to witness the act, to certify that its has been celebrated, to
ensure that there were no legal impediments. He also gives his
consent i.e. State consent to marriage
b. The Presumption of Perpetuity
 Prior to 1910, i.e. in the civil code system, marriage was by nature
perpetual.
 This characteristics was expressly referred to in the definition to be found
in Article 1056 of the Code- “ Marriage is a perpetual contract between
two people of different sexes in order to legitimately establish a family”.
 In those days, divorce did not exist in Portugal.
 Divorce was only introduced by the Decree dated 27/12/1910, which
established that marriage can be dissolved not only by death of one the
spouses but also by divorce.
 Since then, marriage could not longer be considered to be a perpetual
contract, yet the presumption of perpetuity remained since divorce was
only admitted in exceptional cases.
 The presumption of perpetuity is clearly expressed in Art 2 which
established, “This contract is presumed to be perpetual, without prejudice
to the dissolution thereof by divorce.
c. Non confessional Nature
 In our legal system, marriage has over the years been through several
phases so far as this characteristics is concerned.
 Before the civil code came into force, there was only one form if marriage-
religious marriage.
 The civil code permitted civil marriage in Portugal for the first time. It was
however admitted together with religious marriage.
 Art 1057 established that catholics shall celebrate marriage according to
the rite of the catholic church.
 Non catholics shall celebrate marriage before an official of the civil
registry, subject to the conditions and in the form established by civil law.
 Thus there are two forms of marriage-catholic marriage for catholics and
civil marriage for non-catholics.
 After decree dated 25/12/1910, came into force there was once again
only one form of marriage i.e. civil marriage. Thus the decree of 1910
considered marriage to be purely civil contract and every Portuguese
citizen shall celebrate marriage before the proper Civil Registry Official.
d. Solemnity

 Solemnity is another characteristics of

marriage.
 Given the enormous social and legal

importance of marriage, the law surrounds

the celebration of the marriage contract with
a certain formalities which aim not only to
guarantee the validity and seriousness of the
act but to as to publicise it.
Law of Marriage as a civil contract

Civil marriage and its solemnisation

Art 1: Contractual nature and purpose of Marriage : The
marriage is a contract solemnised between two persons of
diff sex with the purpose of legitimately consulting a family.

Art 2: Civil nature, presumption and dissolution by divorce: Such

contract is purely civil and is presumed to be perpetual
without prejudice to its dissolution by way of divorce.
 Chandrakant Harmalkar V. Sumati Harmalkar, 1998(2)GLT 200:

Solemnisation of civil marriage-proof of-loss of registration

certificate-Factum of marriage can be proved by other
evidence. Art 45 has to be interpreted in a liberal manner.
Art 3:Compulsory registration of the marriage
All portuguese shall solemnised the marriage before the
respective officer of Civil Registration, under the
conditions and in the manner established in civil law,
and only such marriage is valid.

Chandrakant Harmalkar V. Sumati Sagun Harmalkar,

1992 All MR 208
Art 2, 3 and Art 45-Solemnisation of civil marriage-proof
of-loss of marriage registration certificate-Factum of
marriage can be proved by other evidence. Art
45(proof of marriage) has to be interpreted in a liberal
manner
Matrimonial Impediments
 A matrimonial impediment is any obstacle to the celebration of marriage.
 Impediments are of different types
 a) Absolute Impediments.
 b) Relative Impediments.
 Absolute Impediments is also known as extinctive impediments.
 It cause the complete nullity of marriage.
 Relative impediments is divided into impeditive and provisional.
 Relative impediments results only in relative nullity.
 If absolute impediments are infringed the marriage is null and void.
 When there is an absolute nullity of marriage, any person with an interest may apply
for a judicial declaration of nullity at any time.
 Any marriage celebrated contrary to the provisions of any of the para of Article 4 – is
considered null and void in relation to the parties and if it had never existed.
 When nullity is merely relative, the nullity proceedings can only be commenced by
such concerned persons. Furthermore, the nullity can be resolved with the consent of
the persons concerned with regard to the impediments mentioned in Art 5 to 7.
• A marriage carried out in infringement of an impeditive impediments is null and void
but this may be validated
• For Provisional impediments, they do not render the marriage null and void.
Art 4: Absolute Impediments
The following shall not contract marriage:
1.Relatives by consanguinity or affinity in a direct line, although the
marriage, which is the cause of affinity has been dissolved. Legitimate or
illegitimate brothers and sisters by full blood or consanguineous or uterine
2.Those males below the age of eighteen years, and females below the age
of sixteen years.
3.Those under disability due to insanity, declared by judgment become final
for want of appeal, or notoriuos as well as those divorced on the ground
of contagious disease found incurable or of an incurable disease involving
sexual aberation
4.Any spouse who has been convicted of committing, or abetting the
commission of, or of the attempt to commit murder of the other spouse,
with any other person convicted of committing or abetting the
commission of the same offence
5.Those joined by another marriage not yet dissolved.
 Smt. Daisy Senso V. Smt. Ivorine Danslay Noronha, 2011 (5) All MR
257:2011 (5)Bom CR 837
Validity of marriage-Wife performed second marriage during the
subsistence of first marriage-only oral evidence and pleadings
regarding divorce with 1st husband-No documentary evidence
produced-No valid Divorce-Second marriage illegal.

Absolute impediments are:

a. Kinship and affinity (cl 1 and 2 of Art 4)
b. Lack of matrimonial capacity (cl. 3)
c. Divorce on the grounds of contagious or incurable disease. (cl. 4)
d. Spouse murder (cl. 5)
e. Previous marriage not dissolved (cl. 6)
a. Kinship and Affinity
 Art 4 provides that blood relatives and relatives by affinity in the direct
line may not marry, even if the marriage gave rise to the affinity has
been dissloved and illegitimate cannot marry.
 Marriage is therefore prohibited between blood relatives and relatives
by affinity in the direct line (mother and son, father and daughter,
grandfather and grand daughter, grandmother and grandson etc)
 Between relatives by affinity in direct line (step father and step
daughter, step mother and step son etc) and between siblings.
 So far as the siblings are concerned, the law states that they may not
marry whether they are consanguine or uterine.
 Science has proved that marriage between relatives who are so
closely related either give rise to malformations and defects in their
children or atleast results in the development to each other of pr-
existing malformations and defects. In addition such marriages also
offend our moral sensibilities.
b. Lack of matrimonial capacity
 Everyone knows that one of the main purposes of the
marriage is procreation(reproduction) as well as the
moralisation of the sexual instinct.
 Such purposes can only be achieved with the union of people
of different sexes, whose physiological and psychological
characteristics mutually complete and complement each other.
 A particular age is also required for celebration of marriage.
 Moral and physiological reasons justify this requirement.
 Physiological reasons because if procreation is one of the main
purposes of marriage, it should be permitted to people who
have the necessary physiological development, moral reasons
because the spouses should have the necessary mental
maturity to be able to understand the responsibility involved in
their act.
c. Insanity
 Clause 4 of Art 4 provides that those under a disability by reasons
of insanity either confirmed by judicial decree that is not subject
to appeal or by notoriety.
 There are therefore two circumstances im which insanity is an
impediment to marriage when there has been a disability decree
or when the insanity is notorious i.e. when it is obvious and
noticeable by everyone.

d. Divorce on the grounds of contagious or incurable

illness
 The second part of the clause 4 of Art 4 states that those who
have been divorced on the grounds of contagious or incurable
illness or an incurable illness involving sexual aberration cannot
re-marrying
e. Spouse murder
 According to clause 4 of Art 4 “ a spouse who has been
convicted as the committing of or abetting in the murder or
attempted murder of the either spouse may not marry any
other person who has been convicted as the committing or
abetting in the said crime.
 Marriages celebrated in such circumstances would be very
immoral and the prohibition thereof is alo justified as a
preventive measure against the temptation to commit such
crimes in order to re-marry.

f. Undissolved previous marriage

 Finally clause 6 of Art 4provides that those who are party to
an as yet undissolved marriage cannot be marry.
 Relative Impediments
 There are two such impediments and they appear in Art 5 to 7.
 1. Lack of permissions to minors (Art 5 and 6)
 2. Lack of permissions to those under a disability (Art 7)

1. Lack of permissions to minors: According to the provisions of Art 5, males over the
age of 18 years and females over the age of 16 years who are not emancipated are also
prohibited from marrying unless they have the consent of their parents or parents
representatives or such consent has been legally dispensed with.
 The consent must be given by both parents. If both are alive and neither of them are
legally prevented from giving their consent.
 If parents do not agree with each other, it is for the judge to settle the matter as per Art
6.
 If one of the parents is deceased, the consent of the survivor is sufficient.
 If one of the parents is prevented legally from giving consent, the consent of the
parents who is not prevented will suffices.
 In the event of the prolonged absence of one of the spouses, the judge may upon
application, if he considers reasonable, dispense with the consent of the absent spouse.
 If both of the parents are absent or unable to give their consent and the grandparents
have custody they shall grant or deny the consent.
 Finally if the parents or the grandparents are absent or unable to give their consent,
then this power is given to the Family Council.
2. Lack of permission of those under a disability

 Art 7 provides that Adults subject to guardianship who

are outside the scope of cl (4) of Art 4 as well as adults
subject to wardship, may not marry unless the consent
of those who represent them is obtained or of this
consent is legally dispensed with.
Impeditive impediments
 These are mere obstacles to the celebration of
marriage, but if they exist they result in neither the
absolute nullity nor the relative nullity of the act.
 There are certain impeditive impediments. They are
 1. kinship (Art 8)
 2. Guardianship (Art 9)
 3. Inter-nuptial period (Art 10)
a. Kinship
 Art 8 states that kin in the third degree in the collateral
line are also prohibited from marrying unless they
obtain leave, which may only be granted by the
government.
 Relatives in the third degree are aunts and uncles and

nieces and nephews i.e. Art 8 prohibits marriages

between nephew and aunts or between uncle and
niece unless the said leave is obtained.
b. Guardianship and Custodianship
 Art 9 provides that the ward and his descendants, ancestors, siblings,
brothers and sister-in-law or nieces and nephews may not marry the
person subject to guardianship or custodianship until one year has lapsed
from the termination of the guardianship or custodianship until the
guardianship or custodianship accounts have been approved.
 The purpose is to prevent the guardians from being their influence over the
person subject to guardianship or custodianship and to avoid having to
render accounts of the management of the ward’s affairs.
 Art 55 of the same decree provides that the guardian and his issue,
ancestors, siblings, brothers and sisters-in-law or nieces or nephews who
marry to the person subject to custodianship or guardianship contrary to
the provision of Art 9 shall be prevented from receiving any gift or by will
from their spouse and the marriage shall be deemed to be subject to
separation of property.
 In addition to this, guardian shall be unable to administer property during
the minority of the person subject to guardianship or custodianship and
the offending husband shall be subject to fine mentioned in Art 54.
c. Inter-nuptial period
 According to Art 10 “neither of the ex-spouses can re-marry until the
expiry of the periods specified in Art 55”.
 Art 55 provides that a divorced woman shall not re-marry until one year
after the date of the dissolution of her previous marriage and a man
may only re-marry after 6 months after the dissolution of his previous
marriage.
 The reason for this period is morality and decorum.
 It would not be possible for the widow or even a divorcee to be able to
re-marry before atleast 6 months after the dissolution of the previous
marriage.
 So far as the woman is concerned, there is another reason: the purpose
of the period is to avoid the so called stigma i.e. doubts regarding the
paternity of the child born after the celebration of the second marriage.
Law of Divorce, 1910
 Although the Civil Code mentions that the dissolution of
marriage in several of its dispositions, in none of them
does it indicate the cases in which the bonds of matrimony
are considered to be extinguished.
 The reason for this is clear.
 The Code considered in Art 1056 that marriage is perpetual
contract. As such it could only be deemed to be dissolved
by death of one of the spouses.
 The decree of divorce, 1910 altered the state of affairs by
admitting the possibility of divorce. Accordingly Art 1 of the
decree stated that Marriage is dissolved :
 1. by death of one of the spouses and
 2. by divorce
 According to Art 2 “divorced authorised by judgment
that is final and not subject to appeal has the same legal
effect as the dissolution of marriage by death, both in
respect of the spouse’s persons and assets and their
capacity to validly re-marry.
 The law provides for two types of divorce.
 Art 3 provides that divorce may be applied for by one
spouses or by both spouses. In the former case, it is
termed as contested divorce and in the later it is divorce
by mutual consent.
 Thus divorce can be two forms
 A. Contested Divorce
 B. Divorce by Mutual Consent
Contested Divorce
 Contested divorce is necessary based on one of the grounds
listed in the Art 4 of Divorce Decree, 1910
 It is governed by Art 4 .
 Contested divorce may be obtained only on the following
grounds:
 1. the adultery committed by wife
 2. the adultery committed by husband
 3. the final conviction of one of the spouses to undergo any of
the serious penalties established by Art 55 and 57 of the
Penal Code
 4. ill-treatment or serious injuries
 5. the complete abandonment of the matrimonial home for
not less than three years
 6. absence without news of the missing person for not less than 4
years
 7. incurable insanity: when atleast three years have passed from
the date of the Court order confirming the insanity becomes final.
 Insanity must meet three conditions before it constitutes proper
grounds for divorce:-
 a. Incurability
 b. the insane spouse is subject to a disability order and
 c. atleast three years have elapsed since the insanity occured.
 8. de facto separation by consent for ten consecutive years
whatever the reasons for the separation
 9. chronic vice of gambling
 10. contagious disease which is recognised as being incurable or
an incurable disease which involves sexual aberrration (deviation)
 There are three effects of divorce which are
 (a)on persons of the spouses,
 (b)their children and
 (c)their assets.
 a) So far as the persons of the spouses are concerned,
divorce renders them strangers to each other-all their
reciprocal duties comes to an end.
 The wife is no longer entitled to use the husband’s name.
 Their mutual inheritance rights cease.
 The wife loses the right to live in the husband’s house.
 Either spouse can re-marry without the need to await the
demise of their former spouse.
 b) So far as children are concerned, Art 21 of the
decree provides that they shall be preferentially
delivered into the custody of the spouse in whose
favour the divorce decree was granted but this
doesnot mean that another person cannot be granted
custody of them.
 c) So far as the assets are concerned, Art 26 provides

that divorce always results in the separation of the

spouses assets with each of them acquiring full title to
and free administration of their assets and the rights to
freely dispose of them in anyway.
Divorce by Mutual consent
 This is the second form of divorce.
 Art 35 provides that divorce by mutual consent can be
sought only by the spouses who has been married for five
years and both having completed atleast 25 years of age.
 According to Art 35, it was sufficient for the spouses to
have been married for five years and to be more than 25
years old.
 According to Art 41, the spouse who having applied for
divorce by mutual consent become reconciled before the
final divorce decree be made, can never again seek
divorce by mutual consent but can commence contested
divorce proceedings.
 The application for divorce by mutual contest is provided under
Art 36 of the divorce decree which provides that “in order to
obtain divorce by mutual contest, the spouses shall file an
application before the Court of their domicile settling their
respective relief and supported by following documents:
 1. marriage certificate
 2. birth certificate
 3.detailed statement of all their properties with documentary
evidence
 4.any agreement that they may have arrived at about the
custody of their minor children
 5.declaration concerning the contribution that each spouse shall
make for the maintenance and education of minor children.
 6.certified copy of the anti-nuptial contracts, if any
 The procedure leading up to the decree of divorce by mutual consent are:
 A meeting of the spouses and their parents and the children over the age
of 18 shall be called
 At the meeting the judge shall exhort the spouses to desist from their
intention and draw their attention to the negative effects of divorce or
separation on the future of their children.
 If the spouses persist their intention to divorce, the agreement for the
divorce or separation by mutual consent shall be drawn up and signed by
both parties.
 The decree of provisional divorce or separation shall then be decreed for a
year, during which time the spouses conjugal life shall be non-existent.
 At the end of this period the parties are required to appear in court again.
 The judge shall then attempt once more to effect reconciliation between
the spouses.
 If he is successful or of the spouses have reconciled, the decree of divorce
or separation shall be declared to be of no effect.
 If it is not possible to reconcile the spouses the final divorce or separation
shall be decreed.
Law of Protection of Children