Section 3

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And, finally, where there are issues, the provision in respect of them, in case the spouses do not arrive at an agreement about the same.  See Arts.393 onwards, 1452 onwards and 1475 of Portuguese Civil Procedure Code of 1939. Article 1208 – Binding force of decisions of family council - The decisions of the family council shall be sanctioned by the Judge and no appeal shall lie therefrom except in the case of clause 2 of the preceding article concerning the amount of maintenance. Article 1209 – Punishability of adultery by spouses - In the case of clause 1 and 2 of Article 1204, the innocent spouse is permitted to move the family council or institute criminal prosecution against the other spouse. § 1 - However, where there is repetition on the part of the offending spouse, the innocent spouse may institute criminal prosecution even though the family council has been moved. § 2 - When criminal prosecution is instituted against the wife and she is acquitted, she shall in law be deemed as separated as to her person and assets, and she may apply, without the need of any document other than the judgment of acquittal, that by way of execution proceedings, separation, and delivery of the assets belonging to her, be made. § 3 - Where the spouse institutes criminal prosecution, what is provided in clause 3 of Article 1207 shall be observed and for such purpose the family council shall be convened in terms of Article 1206.  Revoked expressly by Art.61(7) of Law of Divorce dated 03/11/1910 and replaced by the same. 268 Article 1210 – Effect of separation of persons – From the separation of persons, the separation of the assets necessarily follows. § Sole paragraph - Whichever be the regime under which the marriage has been contracted, the wife, in case of her adultery, shall have no right of separation of assets but only for maintenance, except if it is proved that at the time when she committed adultery she could have applied for separation from her husband on any of the grounds mentioned in clause 2 of Article 1204. Article 1211 – Effects of separation of assets - In all the cases where there is separation of assets, the inventory and the partition of the same shall be done as if the marriage has been dissolved.  See Art.20 of Portuguese Civil Procedure Code of 1939, regarding rights of wife to sue, without permission of husband, incase of judicial separation of assets. For procedure of partition in case of divorce, separation or annulment see Arts.1444 to 1447 of the same Code. Article 1212 – Paternal power after separation of spouses - When the issues are under the care and custody of one of the spouses, the other on that account is neither exonerated from his or her obligations nor is deprived of parental control to the extent that it is not inconsistent with the care and custody entrusted specially to the other spouse.  See Art.1452 onwards of Portuguese Civil Procedure Code of 1939. Article 1213 – Sanctions against guilty spouses - The spouse, who gives cause for separation, shall lose all that he or she might have received from the other spouse or any other person might have given or agreed to give on account of the other spouse. Article 1214 – Saving of rights of creditors of the marital estate - The rights previously acquired by the creditors of the conjugal society are not defeated by the separation of the assets. Article 1215 – Effect of separation as to movables - The spouses may freely dispose the mobiliary assets which belong to each of them after the separation, save for the right of the children.  See Art.20 of Portuguese Civil Procedure Code of 1939. 269 Article 1216 – Effect of separation as to immobile assets - The disposition inter vivos of immobile assets which belong to each of the spouses after separation, depends on the consent of both and the consent of the one who refuses it without a just cause may be made good by order of the Court.  Procedure is laid down under Art.1477 onwards of Portuguese Civil Procedure Code of 1939. Article 1217 – Bar of exercise of rights depending on execution of marriage - The separation of properties does not authorise the spouses to exercise in anticipation the rights arising from dissolution of the marriage. Article 1218 – Reconciliation of spouses - Whatever may be the manner under which the separation is made, it shall always be lawful for the spouses to reconstitute the conjugal society in terms under which it had been constituted, provided the reconstitution is done by an act of conciliation before the respective Justice of Peace. § Sole paragraph. Such reconciliation shall not in any way defeat the rights of third persons acquired during the subsistence of the separation.  Restoration of conjugal society will follow the steps under Art.305 of Portuguese Civil Procedure Code of 1939. SUB-SECTION II OF THE SIMPLE JUDICIAL SEPARATION OF ASSETS Article 1219 – Judicial separation of assets - The wife, married either without communion of assets or under it, who may find herself in manifest danger of losing whatever belongs to her, due to the bad administration by the husband, may apply for the separation of assets in the following terms.  See Arts.1200(2), 1361 & 1447 of Portuguese Civil Procedure Code of 1939. Article 1220 – Effect of separation of regime of general community of assets - In case the wife is married under the regime of custom of the country, the separation shall only be of the assets which she might have brought to the matrimonial estate or devolved to her thereafter and the moiety of those acquired jointly with the husband. 270 Article 1221 – Separation in remaining regime - In case the wife is married under the dotal regime or under any other kind of separation of assets, the judicial separation will be permitted only when the dotal or separate assets are susceptible to deterioration and the refund of endowment is not sufficiently secured by way of any of the modes established in Article 1139. Article 1222 – Effective date of separation in regime of separation of assets - In case the marriage has been contracted under the regime of custom of the country, it shall be deemed that the spouses renounce the communion of assets from the date of presentation of the application for separation in the Court, in case the separation materialises. Article 1223 – Effects of separation - Once the separation is granted by the judgment of the respective Civil Judge, the wife shall be given the administration of her assets. Article 1224 – Nature of assets of the separation - After the separation, the dotal assets shall continue to maintain the same nature. All the others shall be deemed as exclusive assets. Article 1225 – Publicity of separation - The application for the separation as well as the judgment granting it shall be published within a period of eight days in any one of the periodicals of the Judicial Division, or in case there is no periodical, by way of public notice affixed in the Court of domicile of the spouses. § 1 - The period of eight days shall be counted, in the first case, from the date of presentation of petition in the office of respective clerk of the Court; and, in the second case, from the date on which the judgment becomes final for want of appeal. § 2 - The assets which are separated by way of judgment shall not be liable for the debts incurred by the husband after the first publication. Article 1226 – Duty to contribute to the expenses of the matrimonial estate - The separation of assets does not exonerate the wife from contributing towards the expenses of the couple, from the income of her assets in proportion to her belongings in relation with those of the husband. 271 Article 1227 – Judicial character of separation - Such separation of assets cannot be made by way of agreement. Article 1228 – Right of objection to creditors of the spouses - The special creditors of any of the spouses may be joined as defendants in the proceedings for separation.  See Art.347 onwards of Portuguese Civil Procedure Code of 1939. Article 1229 – Reconciliation of the spouses - The effect of separation may be annulled by way of agreement between the spouses, provided that the same is executed by way of public deed or public indenture and published in the same manner prescribed in respect of application and judgment of separation. § Sole paragraph - The effects of such agreement, in respect of third persons, only begin to run from the date of the said publication. Article 1230 – Right of the wife to object to third person - Even when there is no judicial separation of assets, the wife shall always be entitled to object, as a third person, without necessity of authorisation of the husband, any recovery proceedings against the income of her dotal or exclusive assets administered by the husband, where due to such recovery proceedings she is deprived from the necessary maintenance.  See Art.1042 of Portuguese Civil Procedure Code of 1939. SECTION X SUBSISTENCE OF WIDOWED SPOUSES Article 1231 – Subsistence of widowed spouse - Once the marriage is dissolved whichever may be the regime under which it has been contracted, the spouse, who due to the death of the other is found without means of subsistence, shall be entitled to be maintained from the income of the assets left by the deceased, whatever may be their nature. § Sole paragraph - This provision does not include the assets of which the deceased spouse was merely an usufructuary. 272 Article 1232 – Duration and fixation of maintenance - The maintenance shall last until the maintained spouse is in need of it or until he or she remarries and shall be fixed as the Judge thinks fit and proper in proportion to the income of the aforesaid assets and as per the necessity and conditions of the maintained spouse, except when the parties agree amicably on the matter. § Sole paragraph - The provision of this article shall be observed, whether there are issues or not from the marriage, and even when the deceased spouse has left issues from another previous marriage.  See Art.29 of Law of Divorce dated 03/11/1910 and Art.393 of Portuguese Civil Procedure Code of 1939. SECTION XI RE-MARRIAGE Article 1233 – Re-marriage - The widow who wants to remarry before 300 days have elapsed from the date of the husband’s death shall be bound to get verified whether she is or is not pregnant.  Procedure is laid down under Arts.1500 and 1501 of Portuguese Civil Procedure Code of 1939.  See Arts.10 and 56 of Decree No.1 of 25/12/1910 (Law of Civil Marriage). Article 1234 – Marriage in violation of art. 1233 - The widow who marries in violation of the provision of the preceding article shall lose all the nuptial benefits which under the law or agreement she had received or had to receive from the previous husband and they shall devolve to his lawful heirs; and the second husband shall not be entitled to contest the legitimacy in respect of the issue born one hundred and eighty days after his marriage, except, however, that the issue, in case he or she wishes to do so, has a right to claim that he or she is the legitimate issue of the previous husband if he or she is able to prove so. Article 1235 – Incommunicability of certain assets of the re-married person - A man or a woman who re-marries, having issues or other descendants who are successors as per the previous marriage, shall not share with or make a gift under any title to the other spouse, of more than half the assets, he or she had at the time of marriage, or that he or she may come to acquire by gift or inheritance from his or her ascendants or other relatives. 273 Article 1236 – Succession of children of previous marriage - Where to a re-married person, are left, from the children of any marriage, assets which the said child had inherited from his deceased father or mother or their ascendants, and there are full blood brothers or sisters of the deceased child or descendants of the deceased full blood brothers or sisters, then the ownership of the said assets will belong to the latter and the father or mother will only have the usufruct thereof. Article 1237 – Incapacity of re-married woman of more than 50 years - The wife who re- marries, after having completed fifty years of age, shall not alienate, under any title, from the date of re-marriage, the ownership of half the assets mentioned in Article 1235, when she has issues or descendants entitled to them, and any party concerned may apply for inventory proceedings of the same assets and the registration of the respective condition subsequent in respect to the assets. Article 1238 – Presumption of marital regime in second marriage - A man or a woman with issues of previous marriage who marries a person having no issue, there being no agreement to the contrary, shall be deemed as married under the regime of custom of the country which shall always subsist, save for the provisions of this Section. Article 1239 – Provisions applicable to second marriage - All that is laid down in respect of the first marriage is applicable to the re-marriage. CHAPTER II CONTRACT OF SOCIETY27 27 Articles 1240 to 1317 - Society is a general term. Many types of entities would be covered and accordingly this group of provisions has to be viewed in the light of, (i) The Indian Partnership Act, 1932; (ii) The Limited Liability Partnership Act, 2008; (iii) Companies Act 2013, earlier Companies Act, 1956; 274 SECTION I GENERAL PROVISIONS Article 1240 – Society - It is lawful to all those who are entitled to dispose of their assets and labour to associate themselves with others, placing in common all their assets or part thereof, their labour only, or their assets and labour together, with intent to share amongst themselves the profits or losses, which may result from such common holding. This is known as Society. Article 1241 – External form of society contract – A society may exist by express agreement, or by facts from which its existence may necessarily be inferred. Article 1242 – Nullity of leonine society – A society, in which it is agreed that all the profits shall belong to one or some of the shareholders, and all the losses, shall be the liability of the other or others, shall be void. SECTION II UNIVERSAL SOCIETY Article 1243 – Universal society - Universal society may include all the assets, movable and immovable, present and future, or only the movables, fruits and income of present immovables and all the assets acquired in future. § Sole paragraph - This second type of society, does not include the assets acquired by gratuitous title, unless there is a declaration to the contrary. Article 1244 – External form of universal society - Universal society of all the assets, present and future, may be constituted only by public deed. Article 1245 – Nature of assets acquired by shareholders - The assets acquired by the shareholders, in the second type of universal society, are presumed to be of the same society, until (iv) Also Societies Registration Act 1860 and even (v) Co-operative Societies Act, 2001. 275 it is not proved that they were acquired with the income or in exchange of non-communicable assets. Article 1246 – Liability of strictly Universal society for debts of the members - All the debts, prior or subsequent to the contract, and all the expenses of the shareholders, except those arising from the Criminal offence or the act forbidden by laws, shall be the liability of society, when it is of all the assets present and future. Article 1247 – Liability of society of acquired assets for the debts of the shareholders - Where the society is only of acquired assets, unless there is declaration to the contrary, the society shall be liable to pay only following debts: