Nathália Guedes Brum
Lawyer at Marcos Martins Advogados
Article 1.694 of the Civil Code¹ states that “relatives, spouses or partners may ask each other for the maintenance they need to live in a manner compatible with their social condition, including to meet the needs of their education”.
Article 1.566, item III of the same code stipulates that it is the duty of both spouses to provide mutual assistance. However, the legislation does not establish a time limit or any criteria to regulate the maintenance obligation between spouses and partners.
In this context, it is up to our Courts to establish an understanding of these parameters. Case law is well-established in the sense that maintenance between spouses or partners should be fixed for a specific period of time, which is sufficient for the person being supported to be able to re-establish themselves professionally and financially, entering or returning to the job market, in order to provide for their own subsistence².
The precedents reflect the evolution of maintenance obligations between spouses, replacing the usual “need x possibility” binomial with the current “need x possibility x reasonableness” trinomial.
Justice Marco Buzzi, a member of the Fourth Panel of the STJ, in his book Transitional Maintenance: an obligation for a certain period of time³, states that maintenance is owed only so that the person being supported has time to provide for their financial independence and that, currently, it is no longer justifiable to impose on one of the parties to a broken community the obligation to support the other, for life, when the latter is able to provide for their own maintenance.
Doctrine and jurisprudence have also developed the legal concept of compensatory maintenance, which consists of the need for maintenance to compensate a spouse who is deprived of property or a share of the estate and who suffers a considerable drop in their standard of living as a result of the breakdown of the relationship⁴. This theory is based on the duty of mutual assistance, the prohibition of unjust enrichment and the principles of solidarity and the dignity of the human person.
The renowned jurist Rolf Madaleno (p. 952, 2011)⁵, in his work “Family Law Course”, states that:
The purpose of the compensatory pension is to indemnify for some time or not the economic imbalance caused by the sudden reduction in the socioeconomic standard of the spouse deprived of assets and moiety, without intending the economic equality of the couple that has broken up their relationship, but which seeks to reduce the deleterious effects arising from the sudden social indigence, caused by the absence of personal resources, when all income was maintained by the partner.
The Superior Court of Justice has also ruled that maintenance between ex-spouses or ex-partners can be waived. Therefore, a waiver of maintenance clause contained in a duly ratified separation agreement is considered valid and effective, and does not allow the former spouse who waived it to claim maintenance or to claim it again⁶.
However, the waiver of maintenance must be express and unequivocal, as a simple waiver at the time of separation, without the intention of waiving the right to maintenance, does not inhibit a future claim for maintenance, if circumstances change and the existence of the “need x possibility” binomial is verified, as well as if it is shown that the waiver was tainted by some defect of consent, such as coercion.
Nonetheless, the Courts admit the possibility of the obligation being perpetual when one of the spouses is permanently unable to work or when it is practically impossible for the alimony recipient to enter the job market, due to advanced age and/or lack of professional qualifications, for example.
It should be noted that this is an exceptional measure, which is only adopted if the spouse’s dependence on maintenance for their subsistence is proven, in addition to their inability or impossibility to provide for them by their own means, and also the real possibility of the alimony recipient to pay.
The possibility of civil imprisonment for failure to comply with the obligation to pay maintenance to a spouse or partner has not yet been settled by the Superior Court of Justice, and there are different understandings.
The Third Panel of the STJ, in the judgment of Habeas Corpus No. 392.521 – SP (2017/0058916-6), reported by Justice Nancy Andrighi, on April 3, 2017 ⁷, adopted the position that imprisonment should only be arbitrated if the maintenance is indispensable and the necessary food risk to the creditor is verified, an inseparable element of civil imprisonment, also concluding that civil restraint should only occur for default on the last three installments of the maintenance debt.
However, in a judgment on April 19, 2018⁸, the Fourth Panel of the STJ diverged on the issue. In the opinion of the rapporteur, Justice Luis Felipe Salomão, the law makes no distinction between alimony recipients and, once alimony has been defined and set in favor of the ex-spouse, it is presumed that it is aimed at the alimony recipient’s survival, regardless of whether the latter is of legal age and capable and whether the arbitration of alimony is of a transitory nature.
The law firm Marcos Martins Advogados Associados is able to advise both the alimony claimants, for the granting, maintenance or enforcement of alimony, and the alimony claimants, for the review or exoneration of the obligation to pay alimony to the ex-spouse or cohabitant, seeking the most appropriate alternative and ensuring full compliance with the legal precepts.
___
¹ BRASIL. Law No. 10.406, of January 10, 2002. Brasília: Presidency of the Republic, 2002. Available at: <http://www.planalto.gov.br/ccivil_03/leis/2002/l10406.htm>. Accessed on: 05 Dec. 2018
² Precedents: REsp 1205408/RJ, Rel. Minister Nancy Andrighi, Third Panel, judged on 06/21/2011, DJe 06/29/2011; REsp 933.355/SP, Rel. Minister Nancy Andrighi, DJe 04/11/2008.
³ Buzzi, Marco Aurélio Gastaldi, Alimentos Transitórios: uma obrigação por tempo certa, Editora Atlas, 2018.
⁴ Special Appeal No. 1.290.313 – AL (2011/0236970-2), Rel. Minister Antônio Carlos Ferreira, Date of Judgment 12/11/2013.
⁵ MADALENO, Rolf. Family Law Course. 4. ed. Rio de Janeiro: Forense, 2011, p. 952.
⁶ Precedents: AgRg no Ag: 1044922 SP 2008/0091511-0, Rapporteur: Minister Raul Araújo Filho, DJe 02/08/2010; REsp 701.902/SP, Rapporteur Minister NANCY ANDRIGHI, DJ of 3/10/2005; REsp 226.330/GO, Rapporteur Minister Cesar Asfor Rocha, DJ of 12/5/2003.
⁷ STJ – HC: 392521 SP 2017/0058916-6, Rapporteur: Minister Nancy Andrighi, Date of Publication: DJ 03/04/2017.
⁸ Habeas Corpus No. 413344 / SP (2017/0210608-1), Reporting Justice Luis Felipe Salomão, DJe 07/06/2018.
