Supremo Tribunal de Justiça; 2023-11-30; 3081/21.0T8BCL.A.G1.S1.D4
Decision by national courts in the field of European Union law — PT:STJ:2023:3081.21.0T8BCL.A.G1.S1.D4
Date: 2023-11-30
Subject matter: Judicial cooperation in civil matters
Origin: Portugal

82023PT1130(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a matter of jurisdiction in a case for the division of shared property (marital estate) following a divorce, brought before the Supremo Tribunal de Justiça (hereinafter ‘the Supreme Court’).
The plaintiff filed a suit in a Portuguese family court (hereinafter ‘the Court of First Instance’) requesting the division of shared property following the dissolution of her marriage. The plaintiff resided in Portugal. Her ex-husband (hereinafter ‘the defendant’) resided in France. Both were Portuguese citizens. Their divorce had been decreed in France.
The defendant replied, listing a real estate property situated in Portugal as the couple’s only asset. The plaintiff asked that the list of assets be altered to include a bank account in a French bank. The defendant claimed then that the Portuguese courts had no jurisdiction over the matter. The court denied his claim. The defendant appealed to the Tribunal da Relação de Guimarães (hereinafter ‘the Court of Appeal’), which upheld the judgment by the Court of First Instance. The defendant then appealed to the Supreme Court.
The Supreme Court upheld the judgment, concluding that Portuguese courts had jurisdiction to rule over the division of shared property or marital estate, including the asset located in France (bank account), based on the following provisions.
Portuguese procedural rules only apply to determine jurisdiction if there is no European Union regulation applicable, under the principle of the primacy of European Union law.
The new Brussels II Regulation (1), as per its recital 8, only applies to the dissolution of matrimonial ties and should not deal with issues such as grounds for divorce, property consequences of the marriage or any other ancillary measures.
The Brussels I Regulation (recast) (2) states in Article 1(2)(a) that it shall not apply to the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage.
Therefore, since there is no European Union law that regulates jurisdiction in this matter, Portuguese procedural rules apply, namely Articles 62 and 63 of the CPC (3).
According to Article 62(c) of the CPC, Portuguese courts have jurisdiction whenever the right that is invoked can only become effective by means of a trial in Portugal or when filing the case in a foreign court creates a significant difficulty for the plaintiff. However, for this rule to apply, there must be a connecting factor between the case and the Portuguese territory, either real or personal.
In this case, considering that the real estate property is located in Portugal, and that both parties have Portuguese nationality, the case should be presented before Portuguese courts.
In what concerns the French bank account, there is a principle of unity and universality in Portuguese law regarding estates. In other words, whenever an estate must be divided (whether after a death or a divorce), all assets that are part of the estate must be included in the process. This is the opinion of most of the Portuguese jurisprudence. Therefore, the bank account in France must also be included in the case to divide the marital estate.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(3) Código de Processo Civil (Code of Civil Procedure).