What is affiliation establishment?
The affiliation is the consanguineous relationship in the first degree and in a straight line, which connects the individual to those who generated him, that is, the relationship of kinship between child and parents.
The rules for establishing an affiliation have varied over the years, and to determine the one applicable in the specific case it is necessary to know the law in force at the time of birth.
For the process of nationality to be viable, it is not enough to be the son or grandson of a Portuguese, it is necessary that the affiliation is established under the Portuguese law.
That is, even if the individual has the affiliation established in the country where he/she was born and/or was registered, the affiliation may not be established under the Portuguese law.
If it is not established under the Portuguese law, the attribution process is not viable.
What does it mean to establish affiliation during minority?
Article 14th of the Nationality Law provides that the establishment of affiliation, for the purposes of nationality, must be done during the minority.
In practice, this rule means that even if the individual has the affiliation established under the Portuguese law, if the establishment does not take place during his/her minority, the process of granting nationality is not viable.
For example, if there is recognition of maternity or paternity at the age of majority, whether voluntary or by DNA test, you can establish affiliation for other purposes, but not for nationality purposes.
The amendment to Article 14 of the Nationality Law
The rule in the above-mentioned Article 14 is considered unfair by the most people affected, and in recent years many voices have been raised calling for the amendment of the Nationality Law.
For the same reason, it was presented a bill to change that article from the Nationality Law, as the amendments to the Law “have been extending the rights of lusodescendants, recognizing their enormous importance for the presence of Portugal in the world”.
It also reinforces that the access of Portuguese grandchildren to Portuguese nationality by origin and the simplification of the acquisition of nationality through marriage are an example of the strengthening of relations that has been established between Portugal and the world, as can be read in the Observador.
The Portuguese Bar Association argues that the amendment makes perfect sense and is pertinent, as it is an improvement to the Nationality Law, for which reason it issues a favorable opinion to the present bill.
The importance of verifying the establishment of affiliation during minority
The verification of the establishment of the affiliation prior to the submission of the process is very important, because as mentioned above, the nationality process may be unfeasible if the affiliation is not established in Portugal, even if it is established in the country where the individual was born or registered.
It should be noted that the rules for establishing the affiliation are not included in the Nationality Law, but in the Civil Code and Civil Registry Code, and have varied over the years, being dispersed also in other diplomas, so a superficial knowledge of the current law will not help.
Moreover, affiliation may even be established in Portugal but, if it is not established at the time of minority, it has no value.
Many applicants believe that simply because they have a Portuguese parent or grandfather their process is guaranteed and during the process they are faced with these impediments, when they have already made a huge investment of time and money.
It can also happen that during the process, the Registry Office may consider that the affiliation is not established, although, in fact, it is perfectly established and the Applicant without knowledge of the Portuguese law in force at the time of his birth cannot argue in order to successfully complete his process.
Thus, the previous analysis made by a competent professional can avoid unnecessary expenses and the monitoring of the process by someone with knowledge of the current and previous Portuguese law can give greater security in the defense of the applicant’s right.