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Mariage entre personnes de même sexe

Portugal has since 2001 a law recognizing “de facto unions” (uniões de facto) – a form of civil union where couples are lawfully recognized and granted analogous rights as the married ones, with no need to formally register their union in a civil or religious marriage ceremony –between same-sex couples. In fact, law 7/2001, that abrogates law 135/99, in its article 1/1, regulates de facto unions of “two persons, regardless of sex, who have been living together for more than two years”.

Despite the recognition of their conjugality, de facto unions have legal effects that are quite distant from those of marriage. For instance, couples can never be legitimate heirs of their spouses, they cannot define a patrimonial regime like the communion of goods, and they cannot adopt the name of their spouse. On top of that, there was a specific discrimination against same-sex couples : only de facto union couples of different sex had the right of adoption (article 7).

This led to almost ten years of socio-political discussions and legislative proposals on same-sex marriage, namely the bill 206/X of 2006 from Bloco de Esquerda (Portuguese left-wing party), the debates promoted by the Portuguese Socialist Youth in 2008 or the Portuguese government program for 2009 that stated, on page 80, the commitment to remove legal barriers to same-sex civil marriage.

All of this led to the drafting and promulgation of law 9/2010 that allows civil marriage between same-sex couples by excluding the reference to different or same-sex couples. This is relevant because article 1577 of the civil code previously stated that marriage was the contract between two people of different sex. Today, because of the changes in the marriage regime provided by article 2 of law 9/2010, marriage is “the contract between two people who wish to establish a family through a full communion of life.”

Despite these legal provisions, article 3 of law 9/2010 still blocked, tacitly, the right of adoption by same-sex couples. This would only change in 2016 with the promulgation of law 2/2016 and the subsequent elimination of discrimination in access to adoption, civil custody, and other family legal provisions, to married same-sex couples.

According to Pordata database, the number of same-sex marriage more than doubled from 2010 (266) to 2017 (550), accounting for 1.6% of the total percentage of marriages.

For further information : VILAÇA, Helena ; OLIVEIRA, Maria João, “Clivagens e cumplicidades entre e a Igreja Católica e o Estado : o casamento entre pessoas do mesmo sexo”, Sociologia Problemas e Práticas, n.º 78, pp. 29-47.

D 26 février 2018    AHelena Vilaça AJorge Botelho Moniz

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