We all know that we live in times of crisis. But whether there is a crisis or not, it is a fact that everyone has sought to reduce personal costs for their own maintenance, or to implement their income, always aiming to have greater breathing space during the month. The same also happens with creditors and debtors of alimony. Follow along.
In recent times, we have been asked, with great frequency, about the possibilities of reviewing or exempting alimony in Brazil. There are many articles available on the subject, but the vast majority of them are extremely technical and aimed at legal practitioners.
We were then encouraged to write this article, aimed exclusively at ordinary citizens and focused on objectivity. Shall we go then?
INTRODUCTION
In Brazil, the duty to support originates from family duty and is present between parents and minor children (majority is reached at 18 years of age), due to family power, and between spouses and partners, due to the duty of mutual assistance.
It turns out that, in addition to the duty to support, there is the maintenance obligation, which continues even after the end of family power, as it arises from kinship.
In the case of food arising from the duty of mutual assistance (spouses and partners) and the food obligation (kinship bond), for them to persist, there must be a need for those who seek them and the possibility of those who provide them.
Furthermore, the duty of support, as a result of family power, is owed by parents to their children under eighteen years of age, but not by them to those children. In terms of food obligations, there is reciprocity due to kinship and food can be owed to direct line relatives, collaterals up to the second degree and relatives by affinity.
Obviously, if one intends to seek a review or exemption from alimony, then it is assumed that a charge was previously fixed through the existence of a previous action, in which there was a sentence setting the monthly value of the alimony. This fact constitutes one of the prerequisites for the cases discussed here.
WHAT IS ALIMONY REVIEW?
The Alimony Review, or Food Revisional, is a type of action used both by the feeder (the food debtor, who normally seeks to reduce values), and by the fed (the food creditor, who normally seeks to increase values), aiming to simply and solely, review a previously fixed food charge, reducing or increasing its value, as appropriate.
As previously stated, the food review claim presupposes the existence of a previous action, where the food was previously fixed.
Furthermore, for the action to be accepted, it is necessary to prove the change in the possibilities of the feeder and the needs of the feeder. Only upon unequivocal proof of a change in the situation of either party is it possible to change the value of the food.
This fact originates from the principle of proportionality, a factor that observes the needs of those who complain and the possibilities of those who are obliged to provide food, constituting the trinomial proportionality / necessity / possibility.
We have observed countless sentences that, when fixing food, do so at a fixed value. Over time, this value becomes outdated and insufficient to maintain the food supply, forcing you to take a revisional action to have the values updated. The ideal would be for all sentences that set the value of food to do so using the minimum wage as a basis, or percentages thereof, as this is updated annually and, consequently, would update the value of food as well.
Recently, the Superior Court of Justice (STJ) reaffirmed its jurisprudence, in the sense that setting alimony at minimum wages does not violate the Federal Constitution (Ref. ARE 842157).
If the revisional action is proposed and the change in the situation of the parties is not proven, the actions are not accepted and are judged unfounded or extinguished, without judging the merits.
There are cases, however, in which food is fixed without observing the real possibilities of the person being fed, or the true needs of the person being fed and the use of the revisional route is necessary, as a way of equalizing the value of the food.
If there is any disparity in the relationship between possibility and necessity, the adjustment can be carried out at any time, even if there is no change in the economic conditions or life situation of either party.
WHAT IS ALIMONY EXEMPTION?
The Exoneration of Alimony, or Exoneration of Alimony, is the action filed with the purpose of ceasing the payment of alimony owed by law and established through a sentence.
In the same way as in the Food Revisional Action, the request for dismissal also presupposes the existence of a previous action, where the food was previously fixed.
According to the Civil Code, the appropriateness of the exemption is linked to the fact that there is a change in the financial situation of the person who supplies the food, or in that of the person who receives it.
When alimony is established in favor of children, in principle it is assumed that the exemption from maintenance occurs at the age of civil majority, as at that moment, family power ends, and the duty of support and education ceases.
However, the maintenance obligation may be extended, as the maintenance is also intended to complement the children's higher education studies. Normally, this extension is extended until the age of 24, a reasonable age for completing the studies in question.
An important note is worth making here: the simple fact that the child reaches the age of majority is not enough to extinguish the maintenance obligation. According to Summary no. 358, of the Superior Court of Justice (STJ), “The cancellation of alimony for a child who has reached the age of majority is subject to a judicial decision, through a contradictory process, even in the records themselves”.
In other words, to be exempt from the pension, the father must propose the competent Action for Exoneration of Maintenance, as a way of establishing the contradiction, under penalty of becoming a debtor and subjecting himself to all the consequences of the case, even if the child is not enrolled in higher education.
It is observed, then, that with adulthood what changes is only the basis of the maintenance obligation, which is no longer arising from the "duty to support" and is now based on the "duty of solidarity" resulting from kinship.
In relation to maintenance arising from the duty of mutual assistance (spouses and partners), in the past it was advised to exonerate the ex-wife, when she began to have a sexual relationship with another man.
Currently, however, judges do not remove a woman's right to receive maintenance just because she has a relationship with a boyfriend. There are also cases in which the pension continues, even if the woman has conceived a child in a post-marital relationship, or even when she starts to live in a stable relationship with another person.
As a rule, the possibility of exemption from the maintenance burden between ex-spouses arises when the person being served no longer needs them or the person supporting them can no longer provide them due to changes in their possibilities resulting from the Judgment that fixed the maintenance. This is the binomial necessity / possibility.
In the current conception, food is the provision that aims to satisfy the vital needs of those who cannot provide them themselves. Therefore, it covers what is essential to a person's life, such as food, clothing, housing, medical treatment, transportation, entertainment, among others.
However, the food obligation will cease, through exemption, when the need/possibility binomial is observed, either due to the lack of need for the person being fed, or due to the lack of possibility of the economic-financial capacity of the feeder.
The obligation to provide food will also cease in the event of the death of the person receiving food, due to its personal nature; or even, through marriage, stable union or procedure unworthy of the maintenance creditor, in which the supporter will no longer have the maintenance obligation towards the supportee, with the person having to ask for exemption from such burden.
Authorship: FRANCÊ Advogados - Automatic translation by Google.
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