Supreme Court of Justice, proc. 1142/11.2TBBCL.1.G1.S1, 14.01.2021

DE FACTO UNION | DOMESTIC WORK | ENRICHMENT WITHOUT CAUSE | EQUITY JUDGMENT

 

Supreme Court of Justice, proc. 1142/11.2TBBCL.1.G1.S1, 14.01.2021

 

JURISDICTION: Civil

SUBJECT: Settlement of amounts established in civil ruling

RAPPORTEUR: João Cura Mariano

Dismissal of the appeal and confirmation of the lower court judgment which had inter alia considered the domestic work rendered by the plaintiff as contribution to the acquisition of the defendant’s patrimony, in the framework of an enrichment without cause.

DOMESTIC LAW:

Civil Code [Articles 402, 473 ff., 1676(2) 1874, 1877, 1879)

Code of Civil Procedure [Articles 371(1), 372(1), 607(4), 662(1), 663(2), 674(3)]

Law No. 61/2008, of 31 October 2008

Supreme Court of Justice judgment, proc. 3084/07, 06.07.2011

Supreme Court of Justice judgment, proc. 3712/15, 24.10.2017

Supreme Court of Justice judgment, proc. 219/14, 11.04.2019

Supreme Court of Justice judgment, proc. 944/16, 27.06.2019

Supreme Court of Justice judgment, proc. 2048/15, 04.07.2019

Supreme Court of Justice judgment, proc. 6025/05, 13.04.2010

Supreme Court of Justice judgment, proc. 2152/09, 20.03.2014

Supreme Court of Justice judgment, proc. 847/06, 27.04.2005

Supreme Court of Justice judgment, proc. 1205/05, 31.05.2005

Supreme Court of Justice judgment, proc. 2140/12, 07.11.2017

INTERNATIONAL LAW: n.a.

FOREIGN LAW:

Código del Derecho Foral de Aragón (Article 310)

Catalonia Civil Code (Article 234)

KEYWORDS: De facto union; domestic work; care work; enrichment without cause; natural obligation; equity judgment; disproportion in the division of tasks; moral or social duty; imperative of justice; requirement of equality; idea of justice

COMMENTS:

1. Considering the growing number of de facto unions in Portugal, issues regarding their termination often occupy our courts. This judgment analyses the case of a de facto union that was dissolved after almost thirty years of life together. Among other aspects, it assesses the complex qualification and estimation of the tasks provided at home by one of the cohabitants. The summary of the judgment reads that “domestic work, as well as care, assistance and education of the children, when exclusively or mostly provided by one of the members of the de facto union, without any form of compensation, results in a veritable impoverishment of this one and the corresponding release of the other member of the union from the performance of such tasks, an enrichment, as it enables him to benefit from the result of the performance of those tasks, with no costs or contributions”. Therefore, “in these situations, as there is a clear imbalance in the division of tasks, it is not possible to consider that their performance corresponds, respectively, to a natural obligation and the compliance with a duty. As this enrichment is not based on a legitimate cause, there is no reason not to consider such burden in the contributions that enabled the other member of the union to acquire patrimony in the course of the de facto union, when the cause that motivated it ceases – the existence of the de facto union itself”. The Supreme Court’s judgment by was issued due to a settlement incident, following the final decision by the Court of Appeal, which had concluded that the plaintiff had the right to receive the amounts equivalent to her contributions to the acquisition of different movable and immovable property that make up the defendant’s patrimony. The Supreme Court ruled in accordance with what has been determined by our case law and defended in the literature, resorting to the legal concept of enrichment without cause. In the present case, it was established that the plaintiff looked after the house and cooked the family meals for almost thirty years of common life. Furthermore, it was also established that the plaintiff took care of their son, both in the family and school contexts. As this is a settlement incident (regarding the implements of the prior general ruling), it is necessary to quantify the obligation in question, taking also into account, as explained by the Supreme Court, “whether the alleged amounts are considered in the obligation defined by the settlement ruling, which is not merely a quantification operation”. In the present case, when the performance of the domestic work was analysed, the court dismissed the understanding of natural obligation due to the disproportion observed, as there was no collaboration of both parties in those tasks, clarifying that: “if this reasoning is valid when housework and children education is divided by both partners of the de facto union in relatively balanced proportions, the same is not true when these functions are exclusively or mostly taken up by one of them, with a clear imbalance in the division of those tasks. In such situations of evident imbalance, it is not possible to consider that domestic work, as well as care, assistance and education of the children correspond, respectively, to a natural obligation and the compliance with a duty, as there is a cause for enrichment, which is the result of the disproportion in the division of tasks”. A natural obligation exists when it is merely based on a moral or social duty which compliance is not legally enforceable, but corresponds to an imperative of justice (Article 402 of the Portuguese Civil Code). It is true that the family nature of life in a de facto union is not compatible with an organised accounting system describing the participation of each cohabitant in the tasks arising from common life. Natural obligation serves, therefore, as a mechanism of restraint, thus preventing a litigiousness of minor relevance after the union breakdown, when there is a common contribution to the normal common life. However, as well explained by the judgment under analysis, “the detection of these obligations should meet what the idea of justice, as a criterion for harmonisation of conflicting interests, expects at a given historical time and geographical place. For a long time now, the requirement of equality is inherent to the idea of justice, so it is not possible to view the performance of all or of a large part of the housework in a de facto household by just one of the partners as compliance with a natural obligation, based on a duty of justice. On the contrary, such duty demands the most equitable division of tasks possible, without prejudice to the possibility of the members of this relationship to freely agree that one of them would not contribute with domestic work, in an approach of specialisation of each member’s contributions. The performance of the domestic activities exclusively or mostly by one of the members of the de facto union, without any form of compensation, results in a veritable impoverishment of this one and the corresponding release of the other member of the union from the performance of such tasks, an enrichment, as it enables him to benefit from the result of the performance of those tasks, with no costs or contributions. The perception of this reality has indeed motivated the legislator, in the reform of the divorce procedure, as laid down in Law no. 61/2008, to establish mechanisms to compensate disproportionate contributions to the family burdens during marriage [Article 1676(2) of the Portuguese Civil Code), including the performance of housework”.

 

2. What seems to be highlighted in this judgment, that takes the same line of the previous case law, is the role given to domestic work and the need to take it into account when assessing the contribution of one of the partners to the acquisition of the couple’s patrimony during the de facto union. It is not a compensatory credit for spouses as provided for in Article 1676, which relies on the existence of marital duties, but the use of the legal concept of enrichment without cause. As there was a de facto union between the plaintiff and the defendant, the problem in question was to know if the enrichment of the defendant was unjustified regarding the property he acquired during the de facto union, with the proceeds resulting from the exercise of his professional activity, taking into account the fact that the plaintiff always contributed to the common family life carrying out the domestic tasks and taking care and educating their son.

 

3. Unlike the property relationships between spouses and between these and third parties, which are subject to a specific regime, there is no property regime for the de facto union and the rules governing the property effects of marriage do not apply. In the absence of legal regulation and according to the principle of freedom of choice, the members of the de facto union may regulate themselves contractually regarding the property aspects of their relationship, through “cohabitation contracts”. In the absence of such contracts and as the possibility of applying the provisions of marriage by analogy is excluded, in order to settle the patrimony problems of the de facto union, the alternative is to subject the property effects of the de facto union to the general regime. In fact, this has been the solution advocated in Portuguese literature and adopted in the case law of Portuguese courts. The problem that arises in the present judgment relates to the plaintiff’s contribution to the acquisition of property by the defendant and any possible compensations between the cohabitants due to the work carried out at home when the de facto union was dissolved.

 

4. The legal concept of enrichment without cause is supported by the idea that no person should enrich themselves at the expense of others. The aim of the legal concept of enrichment without cause is to “wipe out the difference in the patrimony of the enriched person” regardless of whether “the depleted person is in an equal, better or worse situation than that in which they would be if the displacement of patrimony on which the obligation to repay is based had not occurred” [FRANCISCO PEREIRA COELHO, “O enriquecimento e o dano”, RDES, year XV, 1968, p. 317, note 5 and p. 332; ANTUNES VARELA, Das Obrigações em Geral, vol. I, 10th ed., Coimbra, Almedina, 2000, pp. 470 and ff.]. Enrichment is the attainment of a patrimonial advantage, regardless of its form, resulting in an improvement of the asset situation. Sometimes such advantage will be reflected in an asset increase, sometimes in a liability decrease, and other times in expenditure savings (e.g., saving on costs related to laundry, restaurants or pre-prepared meals, maids, etc.). An enrichment without case will occur when there is an interposition of legal rights or assets of others and such interposition may take the form of use, enjoyment, consumption, etc. What matters is to verify whether a patrimonial advantage was obtained at the expense of others, a patrimony displacement that can take different forms [see ANTUNES VARELA, Das Obrigações em Geral, op. cit., p. 440]. The advantage of the enrichment is viewed in terms of patrimonial enrichment, which reflects the difference created in the economic sphere of the enriched person and results from the comparison between his/her actual situation (real situation) and the situation in which he/she would have been if the displacement had not occurred (hypothetical situation). In principle, the patrimonial advantage obtained by a person corresponds to a loss suffered by another, that is, there is an enrichment at the expense of an impoverishment. But the decrease incurred by the depleted person does not have necessarily to be equal to the advantage attained by the enriched person. As such, the understanding of the legal concept of enrichment without cause does not strictly require an economic impoverishment or sacrifice, but the existence of a support of enrichment at the expense of others, that such enrichment is produced at someone else’s expense. At the same time, the enrichment and its external basis, usually translated into an economic sacrifice, must be related. Article 473(1) of the Portuguese Civil Code reads “to enrich at the expense of others”. Finally, in order for there to be an obligation to repay based on an enrichment, it is not enough that a person had obtained economic advantages at the expense of others. There must be no legal reason for such patrimonial displacement. The project of a common life can be identified as a reason for patrimonial displacement. When the union ends, the justifiable reason ceases to exist. Quantifying the extent of the enrichment of one of the partners vis-à-vis the impoverishment of the other is a difficult task. In the case at hand, the Supreme Court confirmed the contested decision, which had resorted to “equity to make an overall estimation of the value of the contributions with the performance of the different tasks that it considered as having enriched the defendant, by adopting as criterion the amount of the national minimum wage, multiplied by 12 months, for the length of time that they lived together, taking away 1/3 of that amount, having regard to the need to assign a part of it to the plaintiff’s expenses”.

 

5. In conclusion, in view of the above, since the marriage provisions cannot be applied by analogy, the issues regarding the termination of the de facto union should be resolved through the common rules. In what concerns the plaintiff’s contribution to the acquisition of property by the defendant, which is in fact limited to the payment of a compensation to the plaintiff for the work provided at home during the several years of the de facto union, the legal concept of enrichment without cause is correctly applied (it was not established that the care and education of their son had been a task exclusively carried out by the plaintiff and, as such, it was not considered as an plaintiff’s contribution to the enrichment of the defendant).

Cristina Dias and Rossana Martingo Cruz Translated from the Portuguese by Igor Pedro Gil (Inovtrad - Tradução, Formação e Serviços)

 

Cite as: DIAS, Cristina, and CRUZ, Rossana Martingo, “[Annotation to the judgment of] Supreme Court of Justice, proc. 1142/11.2TBBCL.1.G1.S1, 14.01.2021”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/

 

6. This ruling enables us to reflect on the value attributed to care work (which includes domestic labour) as it effectively compensates the plaintiff in accordance with the principle of unjust enrichment for the domestic labour she contributed to the couple's household. Care work includes, on the one hand, caring for family members – particularly the most vulnerable, such as children, the elderly and people with impairments or disabilities – and, on the other hand, caring for the environment in which the family lives. Caregiving is a complex, multidimensional activity that includes both easily marketable, and therefore externalised, dimensions (such as cleaning the home, preparing meals, feeding and transporting family members who cannot feed themselves or move independently, and helping them study) and others that are directly rooted in the affective relationship and bonds of love that unite family members. In order for care work to be effective, time must be dedicated to carrying out its various tasks. However, there is a significant gender dimension to care work, and reflection on this case study cannot be separated from this aspect. Throughout the world, without exception, it is women who devote the most time to (unpaid) care work. Indeed, not only is the majority of care work carried out by women – around 75% worldwide – but they also spend significantly more time on such activities (on average around three times more than men) [see JACQUES CHARMES, The Unpaid Care Work and the Labour Market: An Analysis of Time Use Data based on the Latest World Compilation of Time-use Surveys, Geneva, International Labour Office, 2019]. In Portugal, a recent study by the Francisco Manuel dos Santos Foundation [see LAURA SAGNIER and ALEX MORELL (eds.), As Mulheres em Portugal, Hoje: Quem São, o que Pensam e como se Sentem, Lisbon, Fundação Francisco Manuel dos Santos, 2019, p. 246] concludes that, “in 75% of couples in which a woman lives with a man, she contributes much more than he does to the unpaid work arising from the family they have built together”. Time is a scarce resource, so allocating time to these unpaid care activities prevents women from taking a more active part in the labour market, which has repercussions on their pay (and partly explains the pay gap between women and men). On the other hand, not outsourcing care activities allows the family to make significant savings, since buying the same services on the market would cost significantly more and would often be unaffordable for many households. Economic reasons are, moreover, among the main reasons given by Portuguese families for not resorting to paid help for carrying out domestic chores [see LAURA SAGNIER and ALEX MORELL (eds.), As Mulheres em Portugal, Hoje…, op. cit., p. 224].

 

7. The job of caring for the home and the children is, in our country, explicitly considered to be the duty of the couple, which is included in the duty to “contribute to the costs of family life”. This contribution, when blatantly disproportionate, may be taken as compensatory credit [Article 1676(1) and (2) of the Civil Code]. Indeed, the legislator, by explicitly mentioning – albeit in an illustrative manner – to cases in which someone forgoes their professional life in order to contribute to the responsibilities of family life, thus incurring significant pecuniary losses, was bearing in mind the paradigmatic case of women who give up their role in the labour market in order to care for their family. Hence, the legal recognition of the compensatory credit in these cases specifically acknowledges the impoverishment entailed by the patently disproportionate contribution of one of the members of the couple to care work. According to case-law, the same phenomenon has been recognised in the context of unmarried couples, by applying the principle of unjust enrichment. By analysing the decisions of the higher courts that have addressed this issue, the gender dimension of the phenomenon can be identified: care work and the associated impoverishment is always claimed by women and not by men. This precludes a gender analysis comparing the value assigned to care work when performed by men or women.

 

8. The main breakthrough of the ruling under analysis was that it effectively obliged the enriched party to pay compensation to his former partner. In fact, there had already been prior decisions that considered the principle of unjust enrichment as the legal answer to the imbalance seen in the fulfilment of care-giving tasks between de facto unmarried couples. Still, until the ruling currently under examination, no decision had effectively concluded that there was a right to compensation in the cases sub judice, as the existence of any disproportionality in the specific cases was rejected. However, a decision on the absence of disproportion is necessarily conditional on an assessment of the value of the care work (as well as an assessment of the value of all the contributions to the costs of family life). This is the question that needs to be analysed, but two conclusions can already be drawn: (1) prior to this ruling there was no uniform criterion for calculating the value to be attributed to unjust enrichment of men at the expense of the woman's care work as a contribution to the costs of family life and (2) the criterion adopted by the ruling under analysis provides little appreciation of care work, either objectively or in comparison with the criteria mentioned in previous case law.

 

9. Thus, in the Supreme Court of Justice’s ruling, case no. 6025/05.2TBSXL.L1.S1, 13.04.2010, there is a total lack of criteria in the assessment of the contributions made by the respective members of the couple towards the costs of family life, given that the Court, without making any calculations, simply stated that the man's contribution was greater than the woman's domestic chores, given that the man was a builder: “we must also always bear in mind that, as the Defendant works as a builder, the dwelling referred to herein will in all likelihood, and perhaps certainly, have been built by him, regardless of whether he worked alone or with the help of other colleagues in the same trade[.] On the other hand, it is also public knowledge that the labour used in any construction constitutes one of the factors that most increases its final price, so that, consequently, we have to conclude that the defendant’s contribution to the construction of the family home exceeds the one provided by the plaintiff for the same purpose”. It is impossible not to be surprised at such assertions, which clearly constitute logical leaps, particularly in view of the absence of factual evidence to support them, given that there was no proof that the defendant even built the dwelling. One cannot help but wonder, hypothetically, to what extent the social devaluation of unpaid domestic work was not already part of the Court’s assumptions, thereby leading to this result.

 

10. In the ruling of the Supreme Court of Justice, case no. 2152/09.5TBBRG.G1.S1, 20.03.2014, there is a development in the methodology applied, with the Court attempting to justify, using criteria, the equivalence of the contributions of both members of the couple to the costs of family life. In this case, in which the plaintiff is the man and the defendant is the woman, the court concludes that there is no asset transfer leading to the enrichment of the defendant at the plaintiff’s expense, as the plaintiff benefited from the domestic work she provided, arguing that “[i]t is well known, as this is common knowledge and, to this exact extent, does not require allegation or proof [Article 514 of the CPC], that, in the domestic service contract in Portugal, hourly wages currently vary between 5 and 7 euros, making it easy to conclude that, based on a schedule of three hours per day and six days per week, the defendant's contribution over the seven years of the relationship maintained with the plaintiff will very probably have exceeded, even in absolute terms, that of his partner”. Therefore, in this case, the Court considered the market value of the work rendered by the defendant as a criterion to assess the plaintiff’s enrichment, insofar as it is the amount that he would have spent if he had to contract these services.

 

11. However, in the case under analysis, the criterion adopted by the Court was not the same, instead setting the national minimum wage multiplied by 12 months, which implies a devaluation of care work (and particularly, in this case, domestic work) in relation to the aforementioned interpretation. This devaluation is particularly relevant considering that this was a decision - the first - in which there was actually an order for compensation. It should be noted that the Court does not make an analysis of the criteria previously used in similar cases, nor does it expressly justify the choice of this criterion. However, there is a passage of the ruling that is important to highlight: “In fact, the contested decision used equity to fix an overall value for the contributions with the performance of the various tasks that it considered had enriched the defendant, having adopted as criterion the value of the national minimum wage, multiplied by 12 months, during the years of living together, from which 1/3 was deducted, bearing in mind the need to allocate part of this value to the plaintiff's expenses. Taking into consideration that those contributions include the work carried out by the plaintiff in her commercial establishment throughout those years, some of which involved skilled management of the establishment, the application of the value of the national minimum salary for such performance, in addition to the performance of domestic chores, appears to be parsimonious, and thus failure to take into account the provision of care and education to the couple’s child does not justify, in an equitable judgement, a reduction of the overall value assessed by the contested ruling”. It follows that the Court has upheld the amount of compensation, as it considers the choice of the criterion of the national minimum wage to be parsimonious in the light of the skilled work of managing an establishment carried out by the plaintiff, but does not make any criticism of its use as a criterion for the value of domestic work. And this is despite the fact that domestic work is actually valued in the labour market (especially on the informal market, which is prevalent in the domestic work sector) at more than the national minimum wage [news article entitled “Domestic service, invisible work”, Público, 09.06.2010]. In fact, there are many unskilled jobs that are not paid the national minimum wage, so it is not obvious why this criterion was adopted and endorsed. Nevertheless, the adoption of such a criterion signals that, although care work is recognised as an important contribution to the burdens of family life, capable of enriching those who benefit from it (and correspondingly impoverishing those who provide it), its pecuniary expression – reflecting the value attributed to it – is still not based on clear criteria that reflect the social and family value of care work for the purposes of compensation. This leads to situations of inequality and legal uncertainty among those who turn to the courts to obtain fair compensation for the care work provided for the benefit of a shared life-project that has been discontinued.

Miriam Rocha

Translation from the Portuguese by T. Pole-Baker. Cite as: ROCHA, Miriam, “[Annotation to the judgment of] Supreme Court of Justice, proc. 1142/11.2TBBCL.1.G1.S1, 14.01.2021”, 2022, available at https://inclusivecourts.pt/en/jurisprudencia2/

 

REFERENCES IN THE LITERATURE: n.a.

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