Common-law union in Portugal: rights, proof and separation

The união de facto is a common family arrangement in Portugal and is often misunderstood. Between those who believe that "after two years it is the same as being married" and those who believe it "grants no rights at all", the legal reality sits in the middle: Lei n.º 7/2001 (Law no. 7/2001) grants de facto partners a limited and specific set of rights, very different from the status of marriage — above all in inheritance and separation. This guide covers the full regime: requirements, proof, rights, comparison with marriage, break-up and death.

Key points

• A de facto union exists when two people have lived in conditions analogous to those of spouses for more than two years (Lei n.º 7/2001), with no legal impediments.
• There is no register of de facto unions in Portugal: the union is proven, as a rule, by a declaration from the junta de freguesia (parish council), based on a statement by both partners on their word of honour.
• The partner is not an heir — neither a forced heir nor an heir on intestacy. Without a will, they do not receive the estate; they hold only specific rights over the home and to the survivor's pension.
• On separation there is no division of assets under a matrimonial property regime: the general rules of ownership and joint ownership apply, with possible recourse to unjust enrichment claims.
• Children of the couple have exactly the same rights as children of married parents — including the regulation of parental responsibilities when the parents separate.

What a de facto union is and what the requirements are

Under Lei n.º 7/2001 of 11 May, a de facto union is the legal situation of two people who, regardless of sex, have been living in conditions analogous to those of spouses for more than two years: sharing bed, table and home, with stability and the outward appearance of married life. Two years is the threshold that separates simple cohabitation from a legally protected de facto union.

The law excludes from protection situations involving impediments (article 2): being under 18 years of age; a prior undissolved marriage of either partner, unless a judicial separation of persons and assets has been decreed; kinship in the direct line or in the second degree of the collateral line, and affinity in the direct line; and the conviction of one partner as perpetrator of, or accomplice in, the intentional homicide, even if not consummated, of the other partner's spouse.

How a de facto union is proven

Unlike marriage, a de facto union is not constituted by any formal act and is not entered in any register. Except where a specific rule requires particular evidence, it may be proven by any legally admissible means. In practice, the document requested by most entities is a declaration from the junta de freguesia (parish council) of the couple's common residence, issued on the basis of a statement by both partners, on their word of honour, that they have been living in a de facto union for more than two years — together with their birth certificates.

This informality has a downside: when the union is contested — in an inheritance, in a survivor's pension claim, in an immigration procedure — the evidence may need to be reinforced with lease agreements or deeds in both names, joint bank accounts, correspondence, matching tax addresses and witnesses. Building evidence over the course of the relationship is easier than reconstructing it in litigation.

What rights a de facto union grants

• Family home (casa de morada de família) — protection of the shared home and its contents, both during life (application of the family-home rules in the event of a break-up) and on death (a right of habitation in rem, see below).
• Employment and public service — entitlement to holidays, public holidays, absences and leave on terms equivalent to those of married couples.
• Personal income tax (IRS) — the option of joint taxation under the regime for married taxpayers. It is an annual choice, not an imposition; the Portuguese Tax Authority generally looks to whether both partners had the same tax domicile during the legal period of the union. It is worth simulating both scenarios each year.
• Social security death benefits — the surviving partner may access the survivor's pension and the death grant on terms equivalent to those of a spouse, by proving the union to the competent authority — since Lei n.º 23/2010, with no need for prior court proceedings.
• Maintenance from the estate — the survivor may claim maintenance from the deceased's estate, under article 2020 of the Civil Code.
• Immigration — the partner in a duly proven de facto union is recognised for the purposes of family reunification and a residence permit as a family member.

Inheritance: real rights vs myths

This is where the difference from marriage is harshest — and most often ignored. The surviving partner is neither a forced heir nor an heir on intestacy. Without a will, the estate passes to the deceased's legal heirs (children, parents, siblings…) and the partner receives nothing from the estate, however long the union may have lasted. What the law gives the survivor is different and narrower:

• A right of habitation in rem over the family home and a right to use its contents, as a rule for 5 years — or for a period equal to the duration of the union, if it lasted more than 5 years. Once that period ends, the right to remain as a tenant, on terms fixed by agreement or by the court.
• A right of first refusal if the home is sold, for as long as they live in it.
• Maintenance from the estate and social security death benefits, as noted above.

Anyone living in a de facto union who genuinely wants to protect their partner must do so by will, within the disposable share (quota disponível — the part of the estate not reserved for the forced heirs), and consider complementary instruments — life insurance, joint ownership, gifts. Protecting a surviving partner requires appropriate succession-planning instruments.

De facto union vs marriage: comparison

The disadvantages of a de facto union

Set side by side, the weaknesses of the regime come down to four points: (1) without a will, the partner inherits nothing; (2) without a property regime, separation can turn into an evidentiary dispute over who paid for what; (3) as a rule, there is no right to maintenance between former partners after the break-up, unlike between ex-spouses; (4) every right depends on being able to prove the union — and that proof can be challenged by anyone with an interest in doing so (heirs, for example). Some of these risks can be mitigated through a will, a cohabitation agreement, documented ownership and organised evidence.

Separation: how a de facto union is dissolved

A de facto union is dissolved freely: by death, by the marriage of one of the partners, or by the simple will of either of them. There is no "divorce" procedure — the dissolution is only declared judicially where necessary to assert rights that depend on it. The absence of a procedure does not, however, mean an absence of consequences:

• Division of assets — as there is no property regime, each partner keeps what is theirs; assets acquired jointly are divided under the rules of joint ownership. Where one partner contributed — with money or work — to assets registered solely in the other's name, the case law turns to the doctrine of unjust enrichment (enriquecimento sem causa) to compensate the impoverished partner. These are demanding claims in terms of evidence.
• Family home — the law applies the Civil Code rules on the allocation of the home in the event of a break-up (each partner's need, the children's interests), whether the home is owned or rented.
• Children of the couple — regulating parental responsibilities is mandatory, exactly as in a divorce: residence, contact arrangements, child maintenance and matters of particular importance, by agreement or by decision of the Family and Minors Court.

Death of a partner: what to do

For the survivor of a de facto union, three fronts typically open up: securing the home (exercising the right of habitation and, where applicable, the right of first refusal); claiming the social security benefits (survivor's pension and death grant, with proof of the union); and assessing maintenance from the estate where the survivor's own income is insufficient. All of this runs in parallel with an inventory or estate division conducted by the heirs — in which the partner does not take part as an heir, and where actively defending their rights makes a difference. Relevant deadlines and evidential difficulties may arise, so advice at an early stage can be prudent.

Frequently asked questions

How many years are needed for a de facto union to exist?

More than two years of life together in conditions analogous to those of spouses, under Lei n.º 7/2001. Before the two years are complete there is a cohabiting relationship, but not a legally protected de facto union.

How is a de facto union proven?

There is no constitutive register of de facto unions in Portugal. Except where the law requires specific evidence, the union may be proven by any legally admissible means — the most common is a declaration from the parish council (junta de freguesia) of the couple's residence, together with a statement by both partners on their word of honour that they have been living in a de facto union for more than two years, and their birth certificates.

Is the surviving partner in a de facto union an heir?

No. The surviving partner of a de facto union is neither a forced heir nor an heir on intestacy — unlike a spouse. They hold specific rights: a right of habitation in rem over the family home (as a rule for 5 years, or for a period equal to the duration of the union if it lasted longer), a right of first refusal if the home is sold, and the possibility of claiming maintenance from the estate. To leave assets to a partner, a will is required, within the disposable share.

Does a de facto union give the right to a widow's or widower's pension?

The surviving partner of a de facto union may be entitled to social security death benefits — the survivor's pension and the death grant — on terms equivalent to those of a spouse, by proving the de facto union to the competent authority, with no need for prior court proceedings since Lei n.º 23/2010.

Can de facto partners file their income tax (IRS) jointly?

Yes, it is an option — not an obligation. De facto partners may opt for joint taxation, under the regime applicable to married couples, identifying themselves as such in the tax return; the Portuguese Tax Authority generally looks to whether both partners had the same tax domicile during the legal period of the union. Each year, it is worth simulating both scenarios before opting.

What are the disadvantages of a de facto union?

The main ones: the partner is not an heir (without a will, they receive nothing from the estate beyond the rights over the home); there is no property regime and no division of assets on separation — each keeps what they can prove is theirs; as a rule, there is no right to maintenance between former partners after the break-up; and the protection depends on proof, which can be contested. Many of these risks can be mitigated with a will and cohabitation agreements.

How does a de facto union end, and who keeps the house?

A de facto union is dissolved by death, by the marriage of one of the partners or by the simple will of either of them — with no formal procedure, except where it is necessary to have the dissolution declared judicially in order to exercise rights that depend on it. As to the family home, the law applies the Civil Code rules on the allocation of the home in the event of a break-up, weighing each partner's need and the children's interests.

Does a de facto union with a foreign national give the right to a residence permit?

Portuguese immigration law recognises the partner in a duly proven de facto union for the purposes of family reunification and a residence permit as a family member. Proof of the union is the critical point of the process — we handle these applications at the intersection of family law and immigration law.