Section 1867

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Later Decree No.1 of 25/12/1910 altered the provisions of art.1186 and art.41 totally prohibited the husband from applying for restitution of conjugal rights. It was restored in 1939 under the present article only in the circumstances mentioned herein. 454 Article 1471 - Procedure for a wife to compel her husband to receive her - If the husband expels or abandons his wife, she may apply that he shall receive her at home, observing the provisions of the previous articles. The proceeding admits of defense only on the basis of a document proving that divorce or separation of person and assets has been decreed or is pending having been filed by the husband on the ground of adultery. SECTION III DIVISION AND SEPARATION BY MUTUAL CONSENT Article 1472 - Division or separation of persons and assets by mutual consent - May only be applied by spouses married for more than 5 years and who have completed at least 25 years of age.  This alters art.35 of the Decree of 3-11-1910 raising the period of marriage from 2 to 5 years to give time to the spouses to experience life in common and seek to adapt to one another. Article 1473 - Requirements of the application - The application signed by both the spouses or their attorneys shall be accompanied by the following documents:- a) Certificate of Registration of Marriage; b) Certificate of age; c) List of assets duly specified; d) Agreement arrived at between them on the custody and destiny of minor children, if any; e) Fixation of the share which each one of them contributes for the upbringing and educa- tion of minor children; f) Certificate of ante nuptial deed and its registration if any;  This is based on art.36 of Decree of 3-11-1910. Article 1474 - Judgment of dismissal or summoning of conference - If any of the documents mentioned in the preceding article is missing or on the examination of these it is found that the divorce or separation cannot be granted the application shall be immediately be dismissed. In the contrary case there shall be called a conference of the spouses and their parents also their children who are more than 18 years old. 455 Personal appearance of the spouses is essential.  The Decree of 3-11-1910 was altered to the extent that the parents of the spouses and their children above 18 are called as they are the people who would exercise influence on spouses to change their intention. Article 1475 - Conference. Provisional divorce or provisional separation - At the conference the Judge shall exhort the spouses to give up their intention, calling their attention especially to the undesirable effects of divorce or separation on the future of their children. If the spouses maintain their decision the proceedings of divorce by mutual consent shall be drawn which will be signed by the persons present. The agreement between the spouses shall be granted, authorizing the divorce or separation provisionally for a period of 1 year. This permission suspends the conjugal cohabitation, entitles the wife to apply for listing of movable assets and provisional maintenance and produces immediately in relation to the children the effects mentioned in clauses (d) & (e) of art.1473. § Sole Paragraph: The maintenance shall immediately be sought and after hearing the spouses immediately along with the persons present they shall be fixed in the confirmatory judgment. Article 1476 - New conference, final divorce or separation - After the expiry of 1 year, if the spouses do not apply for a new conference the Court Secretary shall within 30 days shall close the proceedings with the endorsement that the period or separation of provisional divorce is concluded. The spouses, the parents and the children shall be summoned again. If the spouses appear the Judge shall once again try to reconcile them. If he is able to do so, or the spouses have already reconciled, the divorce or provisional separation shall be declared without effect; if it is not possible to reconcile them divorce on final separation shall be decreed. In case both the spouses or one of them do not appear, the provisional divorce or separation shall be of no effect. The judgment, decree and in final divorce or separation shall produce the same effects as if pronounced in a contested proceeding, these effects shall date back in respect of the assets to the date on which the provisional divorce or separation has been authorized. § Sole Paragraph: The spouse who is away from the continent or the island in which the conference regulated by this article takes place may have himself represented with an attorney with specific powers.  This settles the doubt under article 40 of decree dated 3-11-1910 as to when would be the course to be adopted when one of the spouses wanted the restoration of the conjugal union and the other insisted on divorce or separation. 456 SECTION IV CONSENT THROUGH COURT Article 1477 - Consent through Court in cases of refusal - In case judicial consent is sought in cases permitted by law on the basis of refusal, the person refusing shall be summoned to give his say within 10 days. After the summoned person files his objection a date shall be fixed within the next 30 days for deciding, taking such steps as may be found necessary. On the appointed date after hearing the Interested Parties and after producing the evidence admissible the matter shall be decided, the decision being transcribed in the record of the hearing. The witnesses and the documents shall be furnished until 3 days before the date fixed for decision. If there is no objection the Judge shall decide after obtaining the necessary information and clarifications.  Obtaining of consent through Court in case another party represents it without sufficient case is a matter which arises under many provisions of the substantive law namely arts.326(1), 327(1), 1119(1), 1128(1), 1191(1), 1193(1), 1216, 1887, 2024, 2237(2), 2237(3) and 2261 of the Civil Code of 1867. Article 1478 - Judicial consent in cases of incapacity or absence - If the ground for application is incapacity or absence at unknown place of the person whose consent is required to be made up, the representative of the interdicted or absent person shall be heard; As also his closest relation and also the interdicted person himself if the interdiction is due to prodigality and the representative of the State. On the face of the pleadings and evidence produced and the clarification which may be obtained the consent shall be judicially made up or refused as may be deemed fit. Article 1479 - Making up of consent by the Family Council - In cases where the family council is entitled to make up the consent the provision of article 1490 onwards shall be observed. SECTION V ALIENATION OR LONG LEASE OF DOWRY ASSETS Article 1480 - Petition for alienation of dowry assets and for making up of the consent - Judicial permission for alienation or granting of perpetual lease of dowry assets may be sought by 457 the wife in all cases in which the law permits alienation and may also be sought by husband in the cases mentioned in sub-clauses of 2 & 4 of art.1149 of the Civil Code. In the petition the purpose of the alienation and the reasons justifying it shall be specified attaching the documents which prove the consent of the other spouse. If the latter refuses his consent or in interdicted or absent at unknown place there shall be attached to the application for judicial permission, an application for judicially making up the consent. Article 1481 - Subsequent steps - The decision shall be taken after hearing the person who gave the dowry, the children of the applicant and his presumptive heirs in the absence of children and after effecting the procedures and enquiries which are necessary. In case there are minor children or interdicted persons the family council and the State representatives shall also be heard. If the spouse has refused consent the provision of art.1477 shall be followed after hearing the persons and entities mentioned there. Article 1482 - Alienation for maintenance of family - Alienation based on art. 1149(2) of the Civil Code may only be authorized for the maintenance of the spouses or their descendants or ascendants who reside with them and who on account of their age or illness cannot earn the means of subsistence. The need for maintenance shall not be taken to be justified without proving: 1) Total absence of other assets; 2) Total impossibility of providing for the indispensable maintenance with the income of the dowry; 3) Impossible for the husband to acquire the assets as a result of advanced age or illness which does not permit him to work. § 1: Impossibility to work may be proved only by way of examination § 2: Only the absolutely indispensable amount shall be allotted for maintenance. Article 1483 - Need for inspection and registration of encumbrance in certain cases - In cases under clause 4 & 5 of article 1149 of the Civil Code the alienation shall not be authorized unless preceded by an inspection; and in the case of no.6 of the said article the registration of the 458 encumbrance of dowry shall not be cancelled unless the said encumbrance on the assets offered in subrogation is registered or endorsed. Article 1484 - Types of sale or emphyteutic lease - The sale or emphyteutic lease of assets shall take place in any of the ways indicated in art.1883 as may be decided after hearing the Interested Parties. The public funds and shares or liabilities quoted in the stock market shall be sold for the price which shall not be less to the one which the Judge fixes according to the latest quotations. After the sale is agreed the buyer shall deposit the price and the judge after canceling the encumbrance by way of dowry shall record in the title of records the ownership in favour of the purchaser. Article 1485 - Disposal of the produce - If the produce or part hereof is meant to establish any son, the latter shall receive the same directly by document the amount awarded for this purpose. If the alienation is authorized for dowry or for acquiring other assets in place of those alienated the produce shall be invested in immovable assets or public securities certificates, the price of the said assets being delivered to the vendors by document drawn in the proceedings. If the alienation is for the purpose of reparation of other dowry assets, the reparation shall be auctioned following the procedure of judicial sales and the auctioneer shall receive directly the price by document in the proceeding verified by means of inspection wit the intervention of the interested parties that the work is completed on the terms agreed. If the alienation is for maintenance of family the produce shall be deposited and the husband authorized to withdraw monthly from this deposit the amount which is awarded. If the assets are alienated for payment of debts the part of the produce corresponding to the debts shall be handed over to directly to the creditors by record in the proceedings. Article 1486 - Investment of excess portion - The portion of the proceeds which do not come under clauses nos. 1 to 4 of Art.1149 of the Civil Code shall be invested in immobile assets or registered government securities the price being directly paid to the vendor, by a written record in the proceedings after registering or endorsing the encumbrance on the dowry. The same shall be observed as to the totality of the produce in the cases coming under clauses nos. 5 and 6 of the above mentioned Article. 459 Article 1487 - Investment of the return in the case of acquisition - If the assets are acquired for public or private purpose the compensation shall be invested in terms of the proceeding article the investment being made in the proceedings of acquisition. When it is necessary to invest a part of the produce for the repairs of the remaining part of the acquired property the provisions of the 3rd clause of Art.1385 shall be observed in the fact of this part, and the investment shall be made in respect of the excess portion. SECTION VI SALE, EMPHYTEUTIC LEASE OR CREATION OF ENCUMBRANCE ON ASSETS BELONGING TO LEGALLY DISABLED OR ABSENTEE PERSON Article 1488 - Judicial permission for sale, emphyteutic lease or creation of encumbrance on assets of legally disabled person - When it is necessary to sell, give on emphyteutic lease, mortgage or any other way bind the assets of a minor or interdicted person and the act, is subject to judicial permission, the same shall be sought by an application, setting out the reasons for the transactions and furnishing along with the evidence; The permission shall be granted or refusal after hearing the relatives of the legally disabled persons or other suitable persons which may be convenient to be heard and after taking suitable measures, hearing of the government pleader and of the owner of assets himself when he is more than 14 years of age or interdicted for prodigality being compulsory. § Sole paragraph: The application shall be part of the inventory proceeding if there is one or the proceedings for the interdiction.  This provision is the remedy for the substantive provisions of Art.150 and Art.322 of the Civil Code of 1867 that is to obtain judicial permission for sale, emphyteutic lease, mortgage or creation of any charge or assets of minors of interdicted persons.  To be more precise with the use of these special proceedings the following may be noted: a. Minors may be subject to (i) Parental power – Art 150 of Civil Code Parents require permission under Art.1488. The purpose is to find whether the alienation or the creations of encumbrance is for urgent necessity or clear benefit to the minor. The judge will ascertain this and grant or refuse permission accordingly. (ii) In the case of guardianship it is the family council and not the judge which authorizes the guardian to sell or mort- gage the assets of the ward (Civil Code Art.224(13) and 224(16). Here therefore proceeding under article 1488 are not required. The permission is obtained by seeking the convening of the family council in term of Art.1490 onwards for the purpose of deliberately on the issue. 460 b. Persons interdicted for lunacy or for being deaf and dumb. Here there are two possibilities: (i) Guardianship is exercised by father or mother; (ii) Guardianship is exercised by other persons. In the first case the parents have to seek permission to exercise their paternal power granted to them u/Art. 322 of the Civil Code, by seeking judicial permission u/Art. 1488 of Portuguese Civil Procedure Code. The need for judicial permission is laid down in Article 150 of the Civil Code. In the second case Art.1488 has no application because the system applicable to guardianship operates and for this reason the guardian has to seek permission from the family council through the procedure mentioned in Art. 1490. Whatever has been stated in the respect of interdiction of lunacy applies for also interdiction for being deaf and dumb (Civil Code Art.339) c. Interdiction for prodigality In the Civil Code there is no specific provision expressly laying down the need for permissions to sell or mortgage the assets of a prodigal person. But it is evident that curators or administrators of the person interdicted for prodigality cannot carry out these acts without permission either form the judge or from the family council, because it would be absurd that these persons would be in a better position than the parents and guardians therefore the question is whether the permission is to be sought from the Judge or the family council. The earlier Portuguese Civil Procedure Code (Art.657, 658) provided that judicial permission was required. The same is the case today. Art.351 of the Civil Code attributes to the administration of the assets of the prodigals the same rights and obligations as possessed by the provisional curators of the assets of an absentee person. Now such provisional curators can only exercise purely administrative powers (Civil Code Art.59) in the case of acts which exceed the administrative function they will obtain permission; and this can be given only by the judge since there is no family council functioning along with the curator of the absentee person. This conclusion is also supported by making an analogy with the case of final curatorship (Civil Code Art.76). Otherwise also provisional or final curators of assets of the absentee person have to obtain permission of the judge by the procedure laid in Art.1488, this being clearly laid down in Art.1489. It has to be therefore taken to be very clear that the curators of the prodigal person require judicial permission by the procedure laid down in Art.1488 for the sale and emphyteutic lease, mortgage or creation of any encumbrance on the assets under their administration. Article 1489 - Sale emphyteutic lease and creation of encumbrance on assets of the absentee- The provisions of the preceding articles are also applicable to the sale, encumbrance, mortgage or creation of any other encumbrances on movable or immovable assets of an absentee person when provisional or final curatorship has been granted and the act is justified to prevent deterioration or deduction of the assets, payment of debts, to meet the cost of necessary or useful improvements or to meet any other urgent need. SECTION VII COUNCIL OF THE FAMILY AND FOR GUARDIANSHIP Article 1490 - Requirement for constitution and convening for family council - If it becomes necessary to convene the family council to authorize any act, make good the consent or deliberate 461 on matter within that powers, the application shall indicate the purpose of convening it and the reasons for the requirements, naming straight away the person who should constitute the council if it has not yet been constituted. The judge shall hear the government pleader on formation of the council and may solicit the information which he thinks necessary. Even after the council is constituted any relative who ought to have had preference may demand his appointment in place of a member already appointed and the replacement may be applied for by the person who is interested in having the council duly constituted. § Sole paragraph: The application shall be annexed to the inventory proceedings when there is one.  The attributes of the family council are mentioned in a general manner in Art.224 of the Civil Code. Originally the entire matter was dealt with under Arts.217 to 219 of the Civil Code of 1867 but these provisions though sufficient in respect of the constitution of the family council, did not sufficiently regulate its function. Accordingly in the Civil Procedure Code of 1939 new matter has been included under Art.1490 onwards as follows:- o (i) Constitution of the family council – Art.1490, (ii) It’s functioning – Arts.1491-1494, (iii) Appeal from the deliberations – Art.1495, (iv) Constitution of guardianship council – Art.1496, (v) Functioning of the said council – Arts.1497-1498, (vi) Appeal from the deliberations of the guardianship councils – Art.1499 o As for Art.1490 it is general in scope whenever a council has to be constituted whatever may be its purpose, this is the provision that has to be followed. No doubt the provision of Art.207-209 of the Civil Code continue in force since Art.1490 does not indicate the persons who will constitute the council. The provision of Art.1490(3), are in conformity of the paragraph 3 of Art.307 of the Civil Code. It deals with the reconstitution of the council after it is constituted. Regarding the functioning, the second para of Art.1494 specifically adverts that Art.1493 and 1494 do not apply to the decisions which, pertain to the family council in orphanological inventory in Art.1392 onwards nor to the cases foreseen by Arts.1019 and 1442. They also don’t apply, though there is no specific mention to the functioning of the council in proceedings of the interdiction; because in such proceedings the council doesn’t decide but only issues an opinion and Arts.1493 and 1494 regulate the manner in which the council takes decisions. Art.1495 is general in application. It applies even in the cases covered by Arts.7392 onwards, Art.1019 and Art.1442. Once the family council takes a decision an appeal from the decision lies to the Tutorship Council in terms of Art.226 of the Civil Code; o Article 1495 does not confine the appeal to the subject matter of the deliberations of the decisions, it is limited to the question of valuation only. As it amounts to a real appeal the time limits and other requirement laid down in Arts.677 -690, with the exception of Art.689, have to be observed, because clause 2 of Art.1495 specifically declares that a further appeal lies to the high court from an order refusing to admit the appeal. This appeal is not specifically mentioned in Art.677 because it is not an appeal from a judicial division as such. o Article 1496-1499 apply to all cases of appeals to the guardianship council. Art.1496 alters the constitution of the guardianship council; instead of the Civil Judge and 2 substitutes it is now constituted by the guardianship Court. Article 1491 - Summoning of the Council - Once the Council is constituted it shall be summoned to deliberate the members in the notice being notified of the main purpose for which 462 they are being summoned. The order of summons shall be notified to the government pleader to the minors of more than 14 years. To those interdicted for prodigality and the respective representatives and any other persons who may be interested in the decisions of the council. The personal appearance of the members of council, of the government pleader and the representatives of the legally disabled persons is compulsory. Article 1492 – Chairmanship - The judge presides over the family council without right to vote. Article 1493 - Functioning of the council - On the date appointed for deliberations, at least three members of the council being present, the initial application shall be read and the applicant or his representative shall be allowed to speak and make a brief exposition meant to justify the content of the application and produce any evidence. Thereafter any interested party may speak, opposing the application whether he has been summoned or has appeared on his own. The opponent may also produce any evidence. Thereafter the government pleader and the representative of the legally disabled persons shall be heard. At the end the council shall retire along with the judge to the conference hall and there shall take its decision by absolute majority of the members present. The decision shall thereafter be inserted in the record of the proceedings.  Corresponds to Section 110 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1494 - Steps to be taken in case measures are necessary - If the council does not find itself able to decide in the light of the allegations and evidence produced it shall indicate the measures and classification which it thinks necessary. These measures being promptly taken and classification obtained the council shall deliberate on the day fixed or designated, the space between the first and the second meeting being not more than 15 days. § 1: If the day of the second meeting is immediately fixed, the members of the council who have remained absent shall be notified. For the second meeting only those persons which the council wants to hear and specifically indicates shall be summoned. § 2: The provisions of this article and the previous one shall not apply to the decision which the 463 family council is competent to take in orphonological inventories, in terms of Art.1392 onwards, nor to the cases foreseen by Arts.1019 and 1442.  Corresponds to Section 111 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1495 - Appeal from decision - From the decisions of the family council when the valuation exceeds the pecuniary limits of the Civil Code of the judicial division, appeal may be filed to the guardianship council. The appeal may be filed before the judge who has presided over the council, a further appeal shall lie to the High Court from the order refusing to admit the appeal. The appeal shall operate as stay unless the judge finals it necessary to immediately the decision of the family council.  Corresponds to Section 112 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1496 - Constitution of the Guardianship council - The guardianship is constituted by the code of guardianship of children in the respective judicial division.  Corresponds to Sections 106 and 113 of the Goa Succession, Special Notaries and Inventory Proceeding Act,