The increasing internationalization of marital relationships has brought new challenges to real estate legal transactions. One of the most relevant is the correct identification of the matrimonial property regime in notarial acts and land registry entries, especially when one or both spouses are connected to foreign legal systems.
The matrimonial property regime plays a central role in determining the patrimonial sphere of each spouse and, consequently, how they may dispose of or encumber real estate property.
It is, therefore, a fundamental element in defining:
- the composition of separate and community property,
- the ownership of assets acquired before and after marriage,
- the powers of management and disposal granted to each spouse,
- and liability for debts.
Depending on the regime—community of acquisitions, universal community of property, separation of property, or atypical regime resulting from a prenuptial agreement—a property may be: (i) the separate property of one spouse, (ii) community property, or (iii) property considered separate only because the law so provides (e.g., assets acquired before marriage, assets exclusively gifted or inherited).
Thus, the nature of a property as separate or community influences who can validly perform a legal act, whether the other spouse’s consent is required, and even the validity of the legal act itself.
Portuguese law establishes that:
- each spouse manages and disposes of their separate property independently;
- the administration and disposal of community property may require joint intervention of both spouses;
- certain acts (such as sales and mortgage creation), even over separate property and under a separation of property regime, require the other spouse’s consent if they affect family interests (such as the family home, which enjoys special protection, even if it is the separate property of one spouse, when the couple is married under a separation of property regime, and the other spouse has no real rights over the property).
For acts requiring a public deed, such as sales or mortgages, the spouse’s consent may be included in the deed itself or provided in a separate, duly authenticated document.
If the spouse unjustifiably refuses or is unable to provide consent, it may be supplied judicially.
It is important to clarify that providing consent does not make the spouse liable for the debt; in the case of a mortgage, it simply means authorizing the encumbrance of a property whose use may also affect them.
Thus, the matrimonial property regime defines the scope of each spouse’s patrimonial freedom.
How assets are distributed between separate and community property has concrete legal consequences:
- The sale or mortgage of community property by only one spouse may be voidable.
- Encumbering the family home without the other spouse’s consent may be null, even if it is separate property.
- Certain acts performed by only one spouse may not affect third parties, compromising the security of the land registry.
Incorrect indication of the property regime can cause problems in:
- future divisions upon divorce or death,
- future property transfers,
- unnecessary requests for spousal consent,
- the need to correct deeds and land registry entries, with significant costs and delays.
Correct identification of the property regime is particularly complex and relevant when the buyer is foreign, as some legal systems require the spouse’s consent to encumber or sell property, even under a separation of property regime and regardless of whether the property is the family home. Therefore, it is essential to verify the law applicable to the couple’s property regime, whether a valid choice of law was made, and the date of marriage (considering different regimes depending on whether the marriage occurred before June 1, 1967, between June 1, 1967, and January 29, 2019, or after January 29, 2019), among other factors.
Depending on this information, the following may apply: (i) the Seabra Civil Code; (ii) the Portuguese Civil Code; or (iii) Regulation (EU) 2016/1103 of June 24, 2016, also known as the Matrimonial Property Regimes Regulation.
When the buyer is subject to a foreign property regime, merely stating that the regime “corresponds, in Portugal, to community of acquisitions” is insufficient. Analogy alone is not enough; the specific foreign law and the exact regime it establishes must be indicated. Otherwise, there is a risk of creating a registry that does not reflect the legal truth.
Although the law allows a notary to rely on the parties’ declarations, this does not mean they should accept them without legal analysis. Accepting inaccurate declarations could result in nonexistent or incorrect property regimes being registered.
The same verification duty applies to the land registry officer when the act is registrable. Since the final registry entry enjoys a presumption of accuracy, an error in indicating the property regime could create a false legal appearance with serious consequences.
When the property regime is atypical—for example, resulting from a foreign prenuptial agreement—this must be clearly stated in the deed and reflected in the registry.
The same applies to marriages registered abroad: simply transcribing the marriage in Portugal is insufficient; any prenuptial agreement must also be recorded.
From the perspective of notaries, registry officers, and real estate professionals, knowing the matrimonial property regime is essential to determine who must intervene in the act, whether spousal consent is required, ensure the validity and effectiveness of the deed and registry, and protect third parties acting in good faith who rely on the registry.
Failure to verify this can lead to invalid or ineffective deeds, deficient registry entries, annulment actions, future litigation over divorce or inheritance, problems in future property transfers, unnecessary requests for spousal consent, and complicated or unfeasible mortgage enforcement.
In summary:
The need for legal precision in public deeds and accuracy in the land registry demands that, whenever international elements are present, the property regime must be indicated with express reference to the governing legal system.
If the applicable law is from a state with multiple internal legal systems, the specific applicable system must also be identified.
When the indication of the property regime in the deed is insufficient or incorrect, the registry may—and must—require supplementary proof through legal mechanisms to correct deficiencies, which can involve significant costs and delays.
At Belzuz Advogados, S.L.P., Portugal branch, you can rely on experienced lawyers to ensure that all parties’ rights are fully protected.