Adultery in Portugal: Is It a Crime? What Are the Consequences in a Divorce?

“Adultery” is an old word, heavy with moral and religious meaning, which is why so many people search for it when they discover or suspect infidelity in their marriage. The questions are almost always the same: is adultery a crime in Portugal? Is it grounds for divorce? Does the unfaithful spouse lose the house, the assets or the children? In this guide we explain what Portuguese law says today, what has changed and in which situations proof of an extramarital relationship can still make a difference. This article is for information only and is no substitute for a lawyer's advice.

Quick answer: is adultery a crime in Portugal?

No. Adultery is not a crime in Portugal: the Criminal Code in force does not provide for it. Today it is a matter of civil law, a breach of the duty of fidelity between spouses. Nor does it decide the divorce any more, because since 2008 divorce has not depended on fault. Even so, it can have consequences: it can help show that the marriage has irretrievably broken down, it can support a claim for compensation and it can be relevant to money and maintenance issues. Everything depends on the evidence, and on that evidence having been obtained lawfully.

What adultery is

In everyday language, adultery is an intimate relationship between a married person and someone who is not their spouse. The word always presupposes a marriage: that is what distinguishes it from “cheating” or “infidelity”, broader terms that apply to any relationship.

Current Portuguese law no longer uses the word. What the Civil Code establishes is that spouses are mutually bound by the duties of respect, fidelity, cohabitation, cooperation and assistance. In legal terms, adultery is a breach of the duty of fidelity.

Was adultery ever a crime in Portugal?

Yes. The Criminal Code of 1886 punished adultery, and it did so with harsher rules for the wife than for the husband. That belongs to the past: the current Criminal Code, approved in 1982, does not provide for the crime of adultery. Today, no one can be criminally convicted in Portugal for having cheated on their spouse.

What consequences does adultery have in a divorce?

This is where most questions arise, and also the biggest misconceptions. Many people assume that proving infidelity gives them an advantage in everything. The law does not work that way.

1. You do not need to prove it to get divorced

Law no. 61/2008 put an end to fault-based divorce. There are now two routes: divorce by mutual consent, in which no one has to justify anything, and divorce without the consent of one of the spouses, in which a ground provided for by law must be shown. In neither case does the court declare anyone “guilty”. Divorce for adultery, as a separate legal ground, no longer exists.

2. It can help show that the marriage has broken down

When the other spouse does not agree to a divorce and a year of de facto separation has not yet passed, the spouse seeking the divorce must show that the marriage has ended for good. A documented extramarital relationship can be one of the facts presented for that purpose. This is the sense in which people still talk about divorce for infidelity: the infidelity is not the legal ground, but it can be the evidence of the breakdown. It is for the court to assess it.

3. It can support a claim for compensation

The injured spouse can claim compensation for the harm caused by the other, under the general rules of civil liability. This claim is made in separate proceedings, apart from the divorce. The facts and the harm suffered must be proved, and the outcome depends on each case.

4. It does not change the division of assets

The division of assets follows the marriage's property regime. The unfaithful spouse does not lose their share, and the betrayed spouse does not receive more because of it. What may be relevant is something else: showing that money or joint assets were spent on or diverted to a third person, through trips, rent, gifts or transfers.

5. It does not decide child custody

Parental responsibilities are decided according to the child's best interests. Having cheated on one's spouse does not make anyone a worse father or mother in the eyes of the law. Only facts that affect the children's well-being and safety count.

6. It can affect maintenance

Child maintenance does not depend on the parents' conduct. Between former spouses, the rule is that each supports themselves, and maintenance is the exception. Adultery is not, in itself, a criterion. There is, however, one point where proof of facts is often decisive: the right to maintenance ends if the recipient remarries or starts living in a de facto union.

We explain in detail which evidence counts in each of these situations in the guide on proof of infidelity in a divorce in Portugal.

Adultery is not a crime, but the way you find out can be

This is the point that most surprises the people who come to us. Cheating on your spouse is not a crime. Some of the methods used to find out, however, can be:

• Accessing your spouse's phone, email or social media without permission. This may amount to the crimes of unlawful access and breach of correspondence or telecommunications. See the guide on finding out about cheating on WhatsApp and the legal mistakes to avoid.

• Recording calls or conversations you are not part of. This may amount to the crime of unlawful recording.

• Putting a GPS tracker on your spouse's car or installing spying apps. This may amount to invasion of privacy. If you suspect that you are the one being watched, see how to detect a GPS tracker on your car.

• Disclosing the affair to relatives, colleagues or on social media. This may amount to invasion of privacy or defamation.

Besides the criminal risk, evidence obtained in this way may be disregarded by the court. The person who was in the right can end up with no evidence and with proceedings against them. We explain the legal framework in Wiretaps, recordings and trackers: what is a crime in Portugal.

What about de facto unions and dating relationships?

Adultery, in the legal sense, only exists within marriage. In a de facto union or a dating relationship there is no duty of fidelity provided for by law, so infidelity does not have the consequences described above. The practical issues of a separation remain relevant: the home, assets acquired together and, if there are children, parental responsibilities. A lawyer can clarify your case.

Suspected adultery: what to do

1. Do not act on impulse

Confronting your partner straight away gives them the chance to deny it, erase traces and protect assets. If you have already found something, read the 3 essential steps before confronting them.

2. Record what you observe

Dates, times and specific behaviour. If you are still at the stage of doubt, learn about the 10 silent signs of cheating.

3. Talk to a lawyer before gathering evidence

Your lawyer will tell you what is useful to prove in your case and what changes nothing. We have put together a list of the best family law lawyers in Portugal.

4. If you need evidence, gather it lawfully

A professional infidelity investigation documents facts in public places, within the law, and leaves the decision on how to use them to your lawyer.

How a private detective can help

A private detective does not access anyone's phone, accounts or communications. What they do is observe and document behaviour in public places: who the person meets, where, when and for how long. The result is a dated report, with photographs and video, which is handed to you. The detective can be called as a witness to what they observed. We do not guarantee legal outcomes: the weight of each piece of evidence is always decided by the court.

The work begins with a free, confidential initial assessment and a fixed quote with no hidden costs. Find out more about how much a private investigator costs in Portugal. To organise the work we generally need 24 hours' notice. All investigations are coordinated by detective Alexandre Ribeiro, member of WAD (no. 1687), APDPE (no. 1326), LIDEPPE (member no. 33) and IKD.

Frequently asked questions about adultery in Portugal

Is adultery a crime in Portugal?

No. The Criminal Code in force does not provide for the crime of adultery. A married person's infidelity is today a matter of civil law: it is a breach of the duty of fidelity between spouses, not a crime.

Do you have to prove adultery to file for divorce?

No. Since 2008, divorce in Portugal has not depended on the fault of either spouse. It can be obtained by mutual consent or, without the other's agreement, on the basis of facts showing that the marriage has irretrievably broken down.

Does adultery allow you to file for divorce without waiting a year?

It may. The law allows divorce without consent on the basis of facts showing that the marriage has irretrievably broken down, even without a year of de facto separation. An extramarital relationship can be one of the facts relied on, and it is for the court to assess it.

Does the unfaithful spouse lose their right to the assets?

As a rule, no. The division of assets follows the marriage's property regime, and infidelity does not change each spouse's share. The situation is different when money or joint assets were spent on or diverted to third parties, a question your lawyer should assess.

Does the unfaithful spouse lose custody of the children?

No. Parental responsibilities are decided according to the child's best interests, not according to the parents' marital conduct.

Can I claim compensation for adultery?

Yes. The injured spouse can claim compensation for the harm caused by the other, under the general rules of civil liability, in separate proceedings. The facts and the harm must be proved, and the outcome depends on each case.

Does adultery exist in a de facto union?

Not in the legal sense. Adultery presupposes a marriage. In a de facto union or a dating relationship, infidelity is not a breach of a duty provided for by law.

Do you need to clear up a suspicion of adultery?

Talking to us is confidential and involves no commitment. We work throughout the country, including Lisbon, Porto and the Algarve. Call or send a WhatsApp message to +351 936 225 975, 24 hours a day, or find out about our infidelity investigation service.