The Republic legalises divorce: Portugal's law of 3 November 1910

On 4 November 1910, readers of the Diário de Notícias in Lisbon found an unusual text in their paper: the full wording of a new law, signed the day before by every member of the Provisional Government of the Republic. Before the year was out a small Lisbon press was selling it as a 32-page pamphlet, number two in a series called the Democratic Library of Legislation, for 50 réis.2 sources2 sources

Its first article was two lines long. Marriage, it said, is dissolved by the death of one of the spouses, or by divorce. In a country where marriage had been for life since the Middle Ages, the second half of that sentence was new.2 sources2 sources

The Republic was 29 days old. It had no constitution, no elected parliament and no recognition from Britain or France. It did have a Minister of Justice, Afonso Costa, who was in a hurry.1 source1 source

Under the monarchy, Portuguese marriage law was the Civil Code of 1867, known after its author as the Seabra Code. It defined marriage as a “perpetual contract” between a man and a woman. Catholics married in church and others could marry before a civil official, but neither marriage could be undone except by death.1 source1 source

The only way out was a judicial separation of persons and property, which let a couple live apart but forbade either to remarry. The code allowed it on four grounds: the wife's adultery; the husband's adultery, but only if it caused public scandal, left the wife destitute or involved a mistress kept in the marital home; a life sentence; and cruelty or grave insult. A pro-divorce deputy counted 2,482 judicially separated people in Portugal on 1 December 1900.1 source1 source

That deputy, Duarte de Roboredo Sampaio e Melo of the Progressive Party, put a five-article divorce bill to the Chamber of Deputies on 1 March 1900. A priest-deputy, António dos Santos Viegas, called it a calamity and echoed the Gospel: “No one can separate what God has joined” (in translation). The committee never reported on the bill, and Sampaio e Melo renewed it in vain in 1908 and 1909.1 source1 source

Divorce was not even in the Republican Party's programme. It had been argued for in a few books and in law faculties that followed French debates; France itself had abolished divorce in 1816 and brought it back only in 1884. In 1910 Luís de Mesquita published a complete draft divorce law, and it was this text, rather than Sampaio e Melo's bill, that the Republic's lawmakers took up.2 sources2 sources

The Republic was proclaimed in Lisbon on 5 October 1910 and the Provisional Government, led by Teófilo Braga, ruled by decree until a Constituent Assembly was elected in May 1911. In its first month it abolished titles of nobility, the House of Peers and the Council of State, and banished the Bragança family.1 source1 source

A second stream of decrees aimed at the Catholic Church. On 8 October the government declared still in force the laws of 1759, 1767 and 1834 that had expelled the Jesuits and closed the convents. On 12 October the religious holidays were replaced by civic ones, on 18 October religious oaths were removed from civil acts, and on 22 October Christian doctrine was dropped from primary schools.1 source1 source

Afonso Costa, Minister of Justice and Worship, drove the measures aimed at the Church. He was a professor of law, first at Coimbra and later in Lisbon, and the leader of the republicans' radical wing. With Mesquita's draft in hand, his ministry could produce a carefully written 70-article law in under a month.2 sources2 sources

There was no public debate. Parliament was closed, and the decree itself said it would be submitted to the next Constituent Assembly and folded into a reform of the civil codes. A free-thought congress in Lisbon on 14 and 15 October had heard a proposal to telegraph the minister urging the law, and the daily O Século claimed that 600 separated couples in the capital were being held in marriage only by the law.3 sources3 sources

A contested divorce, asked for by one spouse against the other, needed one of ten grounds listed in article 4. The first four were the old grounds for separation, made wider. The other six were new.2 sources2 sources

Divorce by mutual consent was open to couples married for more than two years, if both were at least 25. They petitioned their local judge with a list of their property and an agreement on the children, appeared in person before two witnesses, and received a provisional divorce for one year. If neither changed their mind, the judge then pronounced the divorce final.1 source1 source

That was bold for its time. The Assembleia da República's history page, citing Anália Cardoso Torres's study of divorce in Portugal, calls Portugal the second country in Europe, after Norway, to allow divorce by mutual consent. The ranking needs a caveat. Napoleon's Civil Code of 1804 had already allowed it, under strict conditions.2 sources2 sources

France abolished divorce altogether in 1816, and its law of 1884, which took eight years to pass, brought back contested divorce only. Belgium kept the 1804 code, and divorce by mutual consent is still part of Belgian law.2 sources2 sources

The law also changed the criminal code. A husband's adultery was to be “equal, in character and gravity, to the wife's”, where before a wife could be jailed for two to eight years and a husband fined. Couples already legally separated could turn their separation into a divorce, and no marriage contract, will or gift could forbid a spouse to divorce or penalise one who did.3 sources3 sources

Equality had limits. During the provisional year of a mutual-consent divorce the husband kept control of the couple's property. In most cases a divorced woman had to wait a full year before remarrying, a man only six months, and women still could not vote.2 sources2 sources

Seven weeks later came the rest of the package, two family laws dated 25 December 1910. The first made marriage “purely civil”, valid only if celebrated before a registrar, and declared that the conjugal partnership rested on “liberty and equality”, dropping the old code's wording that the wife owed her husband obedience. The second protected children. The Law of Separation of Church and State followed on 20 April 1911.2 sources2 sources

There was no rush to the courts. The census of 1 December 1911 counted 2,685 divorced people in Portugal, 1,231 men and 1,454 women, while 4,785 were still judicially separated. The legal historian António Menezes Cordeiro, citing the historian Rui Ramos, gives 2,658, probably the same census figure with two digits swapped.2 sources2 sources

Ramos and Cordeiro describe the first divorcees as middle-class couples whose marriages had already ended in practice. Divorce cost money and, Cordeiro notes, it usually needed women with paid work or means of their own. Court files from Porto, below, suggest a broader mix.2 sources2 sources

The historian Sandra Costa studied the 135 divorce cases that survive from the Porto district court between 1911 and 1934: 126 contested and only nine by mutual consent. The files are a sample, about 5.6 per cent of the divorces registered in the district in 1915 to 1925 and 1929 to 1934.1 source1 source

Wives mostly asked for divorce on the ground of cruelty or grave insult, used in 68.1 per cent of their petitions. The husband's adultery came up often, but usually alongside other grounds, and for good reason. Judges found a wife's adultery unproven in 14.3 per cent of cases and a husband's in 36.4 per cent, despite the law's promise of equal treatment.1 source1 source

Divorce in Porto was urban and young. About two-thirds of the spouses lived in the city itself, half the divorced women had married between the ages of 16 and 20, and the marriages lasted ten years on average before they ended in court. It was not only a middle-class affair: most of the women who filed were listed as housewives, and Costa judged about half of all the divorced women to be outside the middle and upper classes.1 source1 source

The divorce law survived the fall of the First Republic in 1926 and carried on into the Estado Novo, the authoritarian regime of António de Oliveira Salazar. What changed it was a treaty with the Vatican.2 sources2 sources

The Concordat between the Holy See and Portugal, signed on 7 May 1940, gave civil effect to Catholic church weddings once they were entered in the civil register. Article XXIV dealt with what happened next.2 sources2 sources

A decree of 25 July 1940 wrote the rule into Portuguese law. Couples married in church before the cut-off date could still divorce under the 1910 law, but anyone married canonically after 1 August 1940 could not. The 1910 rule against renouncing divorce in a marriage contract had been turned on its head: the act of marrying in church was now itself the renunciation.2 sources2 sources

The 1910 decree stayed in force for civil marriages until the Civil Code of 1966, which kept the same exclusion for Catholic marriages after 1 August 1940. Couples in a church marriage could seek only a legal separation. By 1960 Portugal recorded 749 divorces a year, and in 1970 just 509.2 sources2 sources

The Carnation Revolution of 25 April 1974 ended the Estado Novo. By the summer a Movimento Nacional Pró-Divórcio was campaigning, and on 6 July 1974 it rallied near the Belém Palace, the presidential residence, where a delegation handed in a petition headed “The signatories want divorce”, asking for the Concordat's divorce clause to go.1 source1 source

The provisional governments chose to negotiate with the Vatican rather than break the treaty. On 15 February 1975 the Minister of Justice, Francisco Salgado Zenha, and the Vatican Secretary of State, Cardinal Jean Villot, signed an Additional Protocol in the Vatican that rewrote Article XXIV. Catholic spouses now took on, before the Church, a duty to abide by canon law and respect the essential properties of marriage, and the Holy See reminded them of their grave duty not to seek a civil divorce. The State no longer enforced it.4 sources4 sources

Decree-Law 261/75 of 27 May 1975 then opened civil divorce to everyone married in church, added new grounds such as five years of de facto separation, and allowed direct divorce by mutual consent again. Its preamble noted that the old rule, which left the dissolution of a Catholic marriage to canon law alone, had been much criticised, and set out that the effects of every marriage, however it was celebrated, would now be governed by the law of the State.2 sources2 sources

The backlog cleared quickly. Divorces doubled in 1975 and reached 7,773 in 1977, ten times the 1974 figure, before settling at between about 5,800 and 6,800 a year from 1979 to 1982.1 source1 source

Later reforms went further than the Republic had. In 1977 the Civil Code was rewritten to match the new democratic constitution, replacing the list of grounds with a general test of serious breach of marital duties. A law of 1998 removed any minimum length of marriage for mutual-consent divorce, and from 2001 such divorces could be handled at a civil registry office instead of a court.1 source1 source

Law 61/2008 removed the idea of a guilty spouse. Today one partner can obtain a divorce without the other's consent after a year of de facto separation, or on any facts that show the marriage has irretrievably broken down.1 source1 source

Religious practice changed too. Catholic weddings made up 68.8 per cent of all marriages in 1995 and 43.1 per cent in 2009. Divorces passed 27,000 a year in 2002 and again in 2010, and have fallen since, to a provisional 15,743 in 2024.2 sources2 sources

The 1910 law still divides opinion about the First Republic. To admirers it gave wives and husbands the same grounds for ending a marriage and made Portugal an early adopter of divorce by mutual consent. To critics it was imposed by an unelected government on a country that had not asked for it. Either way, once the Concordat had split married couples into two classes in 1940, it took thirty-five years and a second revolution before all of them again had the same right to divorce.3 sources3 sources