However, in most cases when foreigners buy properties, if they do not say anything, the deed almost always states that they are married under the community of property – comunhão de adquiridos – regime (joint ownership of property acquired after the date of the marriage). This is because community of property is the default regime in Portugal.
Very often, however, the marriage regimes in foreign countries do not correspond to this default Portuguese regime, even if they have an identical name. A perfect example is that of Germany, where the default marital property regime is called Zugewinngemeinschaft. This name is a literal translation of the Portuguese term for community of property (comunhão de adquiridos), but its rules are different to those of Portugal. Perhaps the greatest of those differences lies in the fact that, under the German regime, unlike the Portuguese regime, any assets acquired after the marriage continue to be owned separately by each spouse.
This difference is extremely important because a German citizen married under the Zugewinngemeinschaft regime who acquires a property in Portugal can, as a rule, dispose of that property without the involvement of the other spouse. However, a problem arises if the deed of sale and purchase does not state that the couple is married under the German community of property regime. When the spouse who owns the property wants to dispose of it, both the notary and the land registrar will require the intervention of the other spouse, as Portuguese law requires this in the case of the sale of assets of couples married under the community of property regime. Very often when this happens, the person involved is unhappy about it, because at the time they signed the deed of sale and purchase, they did not remember this detail. Moreover, at a time in their life when they wish to dispose freely of their assets, they cannot do so.
Only recently, we were involved in a sale of this type by German clients in which only one of the spouses (in this case, the husband) had signed a promissory contract under which he promised to sell the house bought in Portugal a few years previously. He was convinced that his wife did not need to sign either the promissory contract or the deed of sale and purchase, which was due to be signed two days later. When we explained this limitation to him, he was very surprised and concerned because it would have been impossible for his wife to sign the documentation or even issue a power of attorney in time. The matter was resolved in the end but, even so, it took a great deal of energy and money.
All this, means it is necessary to safeguard against these situations to avoid (un)necessary upset and expense at the time of signing the deed. It is certainly possible to demonstrate to the notary what we pointed out above, in other words, that the registration of “community of property” refers to the German regime, which has the rules explained above. But if the process of signing the deed is not absolutely routine, it can be an enormous headache for all those involved.
For further information, contact the authors of the above article, PLMJ Sociedade de Advogados on 213 197 517 or visit www.plmj.com
within the communal property regime are signatures of both spouses required for the mediation contract with the estate agency. is the signature of one spouse binding another?
By victor from Other on 09 Oct 2017, 18:44
Hello
Can you advise when purchasing property in Portugal if it can be registered as Tennants in Common? (referred to in North America when two people in partnership wish to acknowledge ownership other than 50/50) where individual contribution to the purchase may be 25/75 or 40/60
Thank you for your reply.
Regards,
R. Dasilva
By Rodrigo Dasilva from Açores on 23 Feb 2021, 14:00