DIVORCE | DUTY OF RESPECT | RELIGIOUS FREEDOM | EQUALITY BETWEEN SPOUSES | JEHOVAH’S WITNESSES

 

 

        Supreme Court of Justice, proc. 02B1290, 16.05.2002

 

JURISDICTION: Civil

SUBJECT: Divorce

RAPPORTEUR: Ara√ļjo de Barros

RULING: Overturn of the lower court and decree of the divorce with declaration of the defendant as sole culpable for the dissolution of the marriage, due to the fact that he, without respect for the appellant’s freedom, tried to force her to adopt a religion which she did not accept, and offended her and destroyed some of her possessions when he failed to achieve that goal.

DOMESTIC LAW:

Civil Code [Articles 342(1), 672, 779(1), 1671(2), 1672, 1674, 1779]

Code of Civil Procedure [Articles 690(1), 684(3)]

Portuguese Constitution (Article 41)

Supreme Court Judgment proc. 85566, 03.11.1994

Supreme Court Judgment proc. 86651, 28.03.1995

Supreme Court Judgment proc. 349/96, 10.12.1996

Supreme Court Judgment proc. 813/97, 20.05.1997

Supreme Court Judgment proc. 809/98, 29.09.1998

Supreme Court Precedent no. 5/94, proc. 84339, 26.01.1994

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Religious freedom, right to religious practice; religious convictions; Catholic Church; Jehovah’s Witnesses; Mana Church; devil; conscience imperative; religious militancy; self-determination; conversion; sects; religion; fanaticism; fundamentalism; holy war; divine justice; civilized society; minority of intolerants; Satan; free expression of thought; integration

COMMENTS:

  1. The Portuguese legal framework of divorce was thoroughly amended by Law no. 61/2008, of 31 October 2008, namely by eliminating the fault from the grounds and effects of the divorce. Even though the current judgment was delivered at a time when divorces could be based on subjective grounds, provided that the spouse‚Äôs fault had been proved, it is nonetheless relevant insofar as it addresses the spouses‚Äô right to choose their own religion as well as their own freedom of religion or worship. As a matter of fact, the judgment states that the defendant, ‚Äúby violating the duty of respect towards the applicant (insults, destruction of objects belonging to both spouses, offence against the spouse‚Äôs moral integrity by restraining her self-determination and her freedom of expression of thought)‚ÄĚ, was at fault and bore sole responsibility for the divorce.

 

  1. The applicant (A) lodged an application for a litigious divorce, before the Lisbon Child and Family Court, against her husband (B), to grant the divorce based on the defendant‚Äôs sole fault, on the grounds of repeated violation of the matrimonial duties of respect and cooperation. For this purpose, she claimed that the defendant, as a former member of the Mana Church and a current member of the ‚ÄúJehovah's Witnesses‚ÄĚ, is fanatical about his religious beliefs and tries to constantly enforce them on the applicant and her friends. B contested the fact that the applicant was a practicing Catholic and that he exerted some kind of irreverent pressure on her or third parties to indoctrinate her in his faith. The lower court dismissed the application on the grounds that it was unfounded and acquitted the defendant. The applicant lodged an appeal with the Lisbon Court of Appeal which, in its judgment dated 6 November 2001, dismissed the appeal and confirmed the contested decision. Therefore, the applicant lodged an appeal on points of law and requested, in her allegations, the divorce on the grounds of the defendant‚Äôs fault.

 

  1. The judgment scrutinises the divorce and the culpable violation of matrimonial duties (pursuant to the previous Article 1779 of the Portuguese Civil Code), namely the duty of respect, on the grounds of the violation of the spouse’s right to freedom of religion and worship. It has been proven that A and B were married on 25/12/1971 without a prenuptial agreement; the defendant, as a former member of the Mana Church, spent most of his free time reading books of said Church and listening to tapes at home or in the car, either on his own or accompanied by the applicant; on one occasion he said that the applicant was a crack through which the devil slipped in; he damaged objects that he believed were demonic in the family residence; at some point, he complained he was being chased by whispers and noises, stopped eating or sleeping and eventually was admitted at the Santa Maria Hospital, in Lisbon; the applicant is a believer of the Catholic Church; the defendant tries to convert her to his religious beliefs. The main concern was to figure out if this attempt to convert the applicant to the defendant’s religious beliefs consisted of a culpable violation of the matrimonial duty of respect. The judgment under appeal and the decision of the lower court stated that there was enough evidence of culpable violation of the duty of respect on the part of the defendant jeopardising the possibility of matrimonial life. However, the reason for not granting the divorce was primarily due to the fact that no guilt was attached to the defendant insofar as his reprehensible behaviour remained unproven.

 

  1. According to Pereira Coelho and Guilherme de Oliveira, the duty of respect is a default duty, that is to say that the adultery, the abandonment of the family home, and the absence of contribution to the expenses related to the family life constitute a violation of the duty of respect but are likewise stand-alone violations of the duties of fidelity, cohabitation and assistance, respectively. ‚ÄúThus, the violations of the duty of respect only refer to the actions or behaviour that do not constitute direct violations of the other duties outlined in Article 1672 [of the Portuguese Civil Code]‚ÄĚ [see PEREIRA COELHO and GUILHERME DE OLIVEIRA, Curso de Direito da Fam√≠lia, vol. I, 5.th ed., Coimbra, Imprensa da Universidade de Coimbra, 2016, pp. 409-410]. The duty of respect is both a duty of facere and of non facere. ‚ÄúFirst, as a duty of non facere, it requires that none of the spouses offends the other‚Äôs physical and moral integrity, since ¬ęmoral integrity¬Ľ encompasses all the assets and values of the personality[:] honour, social standing, self-worth, sensitivity as well as personal susceptibility. There is a violation of the duty of respect when one of the spouses abuses or offends the other one; when one of the spouses repeatedly derides the religion the other spouse practises or his/her fervent political militancy; when one of the spouses, without the other's consent, brings into the family home a child born out of wedlock[;] when the wife, without her husband‚Äôs consent, resorts to assisted procreation with sperm donation or, if pregnant with her husband‚Äôs child, when she voluntarily terminates the pregnancy; when the husband donates sperm without his wife‚Äôs consent; etc. [But], secondly, the duty of respect, as a duty of non facere, also requires that the spouses lead respectable and honourable lives so as to credit their social image. Under the ¬ęDivorce Law¬Ľ, our doctrine defined these situations as ¬ęindirect offences¬Ľ. Although not aimed at the other spouse, the importance of these offences was based on the idea that the couple is a ¬ęmoral unity¬Ľ (as set out in some case law), in such way that one spouse‚Äôs dignity, honour and reputation are simultaneously the other‚Äôs dignity, honour and reputation. If we apply these ideas to the current law, we may say that the duty of respect, as a duty of non facere, means not acting and behaving in a way that may constitute ¬ęindirect offences¬Ľ. Whether one spouse regularly gets inebriated or takes drugs or if he/she commits an infamous crime, he/she would be violating his/her duty of respect towards the other spouse. Nonetheless, the duty of respect is as well a duty of facere. This does not mean the spouses‚Äô duty to love each other, insofar as the law does not and cannot enforce feelings[.] It refers to the spouse who does not talk to the other one, who does not show some kind of interest regarding his family, who does not share a spiritual communion with the other spouse, who does not respect the other spouse‚Äôs character, and who breaches the corresponding duty‚ÄĚ [see PEREIRA COELHO and GUILHERME DE OLIVEIRA, Curso de Direito da Fam√≠lia, op. cit., pp. 410-411, interpolation added]. Thus, the spouse who tries to convert the other spouse to his religious beliefs, like the defendant did, violates the duty of respect as a duty of non facere. Nonetheless, the previous law in force required both culpable violation of matrimonial duties and the fault-based nature of this violation.

 

  1. The judgment of the Supreme Court of Justice stated that ‚Äúbesides acknowledging that the defendant objectively violated one or more matrimonial duties, the Judge shall scrutinise if this behaviour is deemed reproachable and ethically and legally reprehensible, given the concrete circumstances under which the defendant acted, whether in possession of his capacity of understanding and intending (imputability)‚ÄĚ. The fault depends on the reproachable behaviour on the part of the offending spouse, acknowledged by the court in line with the interpretation of the corresponding facts, as laid down in the judgment of the Supreme Court of Justice, dated 10.12.1996 (Case 349/96), and quoted in the commented judgment, ‚Äúwhich may occur, for example, when ¬ęthe serious harm to the other spouse‚Äôs physical and moral integrity entails the reprehensibility of the offending spouse‚Äôs behaviour and, at least, the latter acted in awareness of the fact that such behaviour was offensive to the other‚Äôs dignity¬Ľ‚ÄĚ. Thus the Supreme Court held that, in this case, ‚Äúalthough we acknowledge as correct the considerations set out in the judgment of the lower court (referred to by the judgment under appeal) regarding the cause of the defendant‚Äôs conduct, namely the fact that he limited himself ¬ęto act in accordance with the teachings of the doctrine he believes in, without questioning the authenticity of his beliefs¬Ľ [and] although ¬ęhis behaviour towards the applicant and third parties translates an imperative of conscience, a state of mission¬Ľ[,] we cannot agree with the interpretation that the defendant, for these reasons, cannot be blamed for practising the doctrine in which he truthfully believes‚ÄĚ.

 

  1. The judgment reached this conclusion on the grounds that the right to freedom of conscience, religion and worship, enshrined in the Constitution, is inviolable (Article 41 of the Portuguese Constitution) and that the practice of any religion or worship will always be limited by respect for the freedom of religion or worship (or non-worship) of all others. The judgment also stated that ‚Äúif any behaviour deemed socially deviating ‚Äď insofar as it contends with everyone‚Äôs absolute rights (life, honour, good name, right to worship ‚Äď or non-worship ‚Äď and right to expression and freedom of thought) ‚Äď could be excused of ethical and legal blame only because, according to the believer‚Äôs (fanatic‚Äôs) most profound convictions, the most hideous crimes against Humanity were necessarily exempt from condemnation if committed under religious, esoteric and even political and philosophical (of religious nature) principles (we may refer, for instance, as they are still very alive in our memory, the cases of divine justice or holy war that occurred in Kosovo, New York, and Palestine). Therefore, anyone who, although with a spirit of mission and persuaded that his/her salvation depends on the adoption of certain behaviours, acts in ways that he/she cannot ostensibly ignore to be forbidden or censured by the laws of society in which (even against his/her will) he/she is integrated, shall always be subject to reproach and his/her actions shall always be found culpable (even if by negligence)‚ÄĚ.

 

  1. Consequently, the defendant, by practicing acts that violated the duty of respect towards the applicant (insults, destruction of objects belonging to both spouses, offence against the spouse’s moral integrity by restraining her self-determination and her freedom of expression of thought) was at fault. Therefore, the necessary requirements to grant the divorce are met, as the defendant is declared to be solely to blame and, thus, bore sole responsibility for the dissolution of the marriage.

Cristina Dias (translated from the Portuguese by Ana Rita Silva)

Cite as: DIAS, Cristina, ‚Äú[Annotation to the judgment of the] Supreme Court of Justice, proc. 02B1290, 16.05.2002‚ÄĚ, 2020, available at https://inclusivecourts.pt/en/jurisprudencia2/

  1. We have some reservations about the Court‚Äôs statements on the religious origin of the defendant‚Äôs behaviour, given the somewhat casual way in which the Court invokes the dangers of fanaticism and fundamentalism and relates them to most of the sects that now abound, making apparent the strangeness (even distrust and contempt) with which the Court views minority religious communities present in the country. The Court accepts the lower courts‚Äô conclusions that the defendant had acted according to the doctrine in which he believes, by a conscience imperative/state of mission, and that there were no questions as to the authenticity of his convictions. The Court concludes, however, that this religious motivation does not exempt the defendant from guilt, first of all, because ‚Äúthe practice of any religion or belief will always be limited by the freedom of others to believe or not to believe‚ÄĚ. So far, we are in agreement. The defendant‚Äôs religious freedom does not entitle him to impose his religion on others, to force them to convert. That much is clear. The problem is that the Court saw fit to add other arguments ‚Äď related to the assumed fanaticism of sects ‚Äď to justify its refusal to allow religious motives to exculpate the defendant. The Court states it to be certain that ‚Äúmost sects (to which History and Society do not grant the nature of religion) which nowadays pop up everywhere often impose on their adherents ‚Äď actually try to impose on everyone ‚Äď fanaticisms and fundamentalisms of various kinds, to serve their leaders‚Äô often unspeakable purposes, and in reality incomprehensible for those who do not know them‚ÄĚ. This statement is problematic in many ways, from the implication that there is an excessive number of sects to the accusation that religious leaders have unspeakable reasons to impose fanaticism and fundamentalism on their followers and on everybody. Since the Court is assessing the behaviour of an individual who identifies himself as a Jehovah‚Äôs Witness, this statement can be read as a sign that the Court shares the negative image usually circulated about this religious denomination; a negative image which endorsement by State authorities was strongly criticised by the European Court of Human Rights (ECtHR) in Jehovah‚Äôs Witnesses of Moscow and Others v. Russia, no. 302/02, of 10 June 2010 [see PATR√ćCIA JER√ďNIMO and IN√äS GRANJA, ‚ÄúO estatuto das minorias nacionais, √©tnicas, religiosas ou lingu√≠sticas na Conven√ß√£o Europeia dos Direitos Humanos‚ÄĚ, InclusiveCourts Working Paper Series, 1/2019, pp. 44-46]. In the following sentence, the Court goes even further, by equating believers with fanatics and stating that, in civilized societies, State rules shall always trump the dictates of any minority of intolerants. ‚ÄúHowever, if any socially deviant behaviour ‚Äď to the extent that it conflicts with the absolute rights of others (life, honour, good name, right to practice ‚Äď or not to practice ‚Äď religion, freedom of expression and freedom of thought) could be considered to be insusceptible of legal and ethical censure only because it was in line with the deepest convictions of the believer (fanatic) this would lead to the impossibility of reproaching the most heinous crimes which have been committed against Humanity under religious, esoteric and even political and philosophical principles when of religious origin (we cite, as examples, and because they are still alive in the memory of the present generation, the cases of divine justice and holy war occurred in Kosovo, New York and Palestine). As is the case with every society which purports to be civilized, the rules of conduct approved by the legitimate authorities trump the rules and teachings prescribed by any minority of intolerants, be they dictated in the name of Mana (is it that bread that fell from the sky?), Jehovah or even Satan‚ÄĚ. The references to Kosovo, New York and Palestine ‚Äď in themselves a problematic mix/equivalency ‚Äď seem to indicate that the Court rejects religious reasons for any socially deviant behaviour and for any religious denomination, i.e. irrespective of whether it is a sect or a religion. However, the dismissive tone with which it closes the sentence suggests that it is still about sects ‚Äď equated with minorities of intolerants ‚Äď that the Court is talking about. We doubt that this positioning by the Court is consistent with the State‚Äôs duty of neutrality in matters of religion, imposed by Article 41 of the Portuguese Constitution [see J.J. GOMES CANOTILHO and VITAL MOREIRA, Constitui√ß√£o da Rep√ļblica Portuguesa Anotada, vol. I, 4th ed. revised, Coimbra, Coimbra Editora, 2007, pp. 612-613] and by Portugal‚Äôs international human rights commitments. Consider, for example, the ECtHR‚Äôs recurring warning to States, a propos their obligations under Article 9 of the European Convention on Human Rights, that the State‚Äôs duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions [see e.g. Ňěahin v. Turkey, no. 44774/98, of 10 November 2005, ¬ß 107].

 

  1. In view of the dangers that the Court links to behaviours motivated by reasons of conscience, it is no surprise that the Court concludes the reasoning with a broad statement that any behaviour which is religiously motivated and in breach of the law is necessarily culpable. ‚ÄúTherefore, anyone who, although with a spirit of mission and persuaded that his or her salvation is dependent on the adoption of some behaviour, acts in ways that he or she cannot ostensibly ignore to be forbidden or censured by the laws of society in which (even against his or her will) he or she is integrated, shall always be subject to reproach and his or her actions shall always be found culpable (even if by negligence)‚ÄĚ. Again, the Court goes too far in our opinion. Reasons of conscience are not necessarily nefarious and, even if they lead to actions which are in breach of the laws in force, they may still deserve some protection from the Law, as is acknowledged in the Portuguese legal system by the recognition of the right to conscientious objection [Article 41(6) of the Constitution]. Being that so, it seems excessive to adamantly reject the possibility that there may be circumstances in which the religious motivation for an illicit behavior may be relevant and even lead to the exculpation of the agent. It also seems reductive to pit religious precepts against the laws of society, particularly since the knowledge and respect for the latter is presented as condition for social integration to the detriment of respect for the former.

Patrícia Jerónimo

Cite as: JER√ďNIMO, Patr√≠cia, ‚Äú[Annotation to the judgment of the] Supreme Court of Justice, proc. 02B1290, 16.05.2002‚ÄĚ, 2020, available at https://inclusivecourts.pt/en/jurisprudencia2/

REFERENCES IN THE LITERATURE: n.a.

 

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