Abstract
Housing is a fundamental right enshrined in the Constitution. As a structural element of family organisation, the family residence becomes a necessary instrument for achieving the minimum values of human dignity in its family dimension. The Portuguese legal system that constitutionally enshrines the inviolability of the human person's dignity, the protection of the family and the right to housing, attributes a vulnerability to the family residence, allowing it to be seized, with very few exceptions. The "casal de família" institute, which finds its place in the North American Homestead, can recommend a feasible and possible solution to protect the family residence. Under Portuguese law, this institute was in force between 1920 and 1977, assuming the terminology of "casal de família". We will analyse the legal regime of Homestead and the modus operandi of the "casal de família" in Portugal. We wonder whether the Portuguese legal system should again consider the existence of "family property" or "family couple". We believe that such a concept would encourage the family, strengthen its values, strengthen its ties, and solve a pressing social problem, not resolved by the Portuguese law n ° 13/2016, of May 23.
Highlights
Marital home means the dwelling and real property occupied by a person and that persons’ spouse as their family residence and in which either or both of them have a property interest
The Portuguese legal system that constitutionally enshrines the inviolability of human dignity, protection of the family and the right to housing, calls for adequate protection of the marital home and allowing it to be pawned
At a time marked by a deep economic crisis, when many families are at risk of losing their homes, it is urgent to find solutions
Summary
Marital home means the dwelling and real property occupied by a person and that persons’ spouse as their family residence and in which either or both of them have a property interest. It is almost believed that the community property systems' origin is in old Germanic customs and folk laws It was the Roman-Christian tradition inspired by the Visigoth's codes, which produced the French model of "majorat", the Italian institute of "morgatto", the Spanish concept of "mayorazgo" and the Portuguese "morgadio" Homestead exemption act is the historical symbol of protecting marital homes, preventing its execution from satisfying creditors This act originated in Texas, in the nineteenth century, joins John Lock's homestead principle with the Spanish and Portuguese laws ("Leys de Toro" Act and “Ordenações Filipinas”) which established the “mayorgazo” and the “morgadios” in the New World. We will demonstrate that the right to housing, especially the "casal de família" is not a purely academic concept Our understanding that such a legal design would be a stimulus to the family, strengthening its values, the resurgence of their ties, and solving a pressing social problem. We will demonstrate that argument is fallacious because family corporations already solved the maintenance and transmission of the most privileged clans' family heritage
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