ANALYSIS OF MACAO’S DIVORCE LITIGATION SYSTEM IN THE PAST TWENTY YEARS: IRRETRIEVABLE BREAKDOWN OF MARRIAGE AND NO-FAULT DIVORCE LITIGATION

Resumen

According to the law, both spouses have equal rights and duties within the marriage, meaning that they must act with respect, fidelity, cohabitation, cooperation and assistance, either spouse may request the dissolution of the marriage if the other culpably violates those duties. Although the Macao’s Family Law (Book IV of Civil Code of Macao) does not expressly provide for the right to divorce, the interpretation of this right can be done by combining articles n.ºs 25, 38 and 41 of Macao Basic Law, which enshrine the right to freedom for all citizens. The litigious divorce is regulated under articles n.ºs 1635 to 1648 of the Macao’s Civil Code, which establish its requirements, the fault of one of the spouses, or, the breakdown of common life, which means that, if one of the parties has not violated marital duties, and there is no disruption of common life due to crucial circumstances (e.g. “de facto” separation for 2 consecutive years), the other spouse cannot resort to the litigious divorce to dissolve the marriage, they can only divorce by mutual consent, which doesn’t exist often. This situation conflicts with the principles of a society governed by Law in which freedom is one of its basic principles. To attain a fairer system, there must be rules that balance both individual freedom and the objective of protecting the family institution.