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Court Decision in SP Determines Proportional Amounts of Pension to Elderly Mother, with Percentage Based on Income When Employed and Fraction of Minimum Wage in Case of Unemployment, Highlighting Mutual Duty of Support Between Parents and Children.
The Justice of São Paulo has determined that a man must pay alimony to his elderly mother, based on Article 1,696 of the Civil Code, which provides for the reciprocity of the duty to provide support between parents and children and its extension to all ascendants.
The amount should vary between 15% of the net income of the son when he is employed, and 33% of the current minimum wage if he is unemployed or working informally.
Food Obligation Between Parents, Children and Ascendants
The Brazilian Civil Code establishes that the right to provide support is reciprocal between parents and children and extends to other ascendants, with the obligation falling on the closest relatives in degree.
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Many employers do not know, but the law guarantees domestic workers a 25% increase in salary during trips, 50% for overtime, 20% for night shifts, and 17 additional benefits that can lead to labor lawsuits if not paid.
This rule appears in Article 1,696, commonly applied in actions where children are called upon to support elderly parents in need.
Furthermore, Article 1,694 states that relatives, spouses, or partners may request support from each other to live according to their social condition.
Paragraph 1 of the provision requires that the amount be determined in proportion to the needs of the requester and the resources of the provider, enshrining the binomial need and possibility.
It is in this normative context that the decision handed down by Judge Juliana Moraes Corregiari Bei, of the 2nd Court of Jandira (SP), fits, when analyzing the request of an elderly mother who reported having no income and depending on material help from her son to survive.
Request for 1.1 Minimum Wage and Son’s Contestation
In the action, the plaintiff stated that she had no income and asserted that she needed financial assistance to cover basic needs such as housing, food, and medication.
With this argument, she requested that the son be ordered to pay alimony equivalent to 1.1 minimum wage.
The son did not deny the duty to assist his mother.
In the statement presented to the court, he acknowledged the need to provide support but claimed that he was already responsible for the upkeep of two minor daughters and that his financial condition could not support the requested amount.
When submitting a proposal, he offered to pay 11% of his net income when employed and, in the event of unemployment, the equivalent of one-third of the minimum wage.
The Public Prosecutor’s Office opined for partial approval of the request, understanding that there was a right to alimony, but that the amount should consider the defendant’s contribution capacity.
Judicial Evaluation of Income, Expenses, and Need
When examining the case, the magistrate highlighted that the obligation to provide support between ascendants and descendants is expressly backed by the Civil Code and is guided by the balance between the situation of the requester and the payment capability of the responder.
Based on the documents presented, the judge assessed the defendant’s income, declared expenses, and the fact that he supports two minor daughters.
From this set, she concluded that the son has “moderate, albeit variable, contribution capacity”, but deemed the amount of 1.1 minimum wage requested by the mother to be excessive.
The judge understood that, although the need of the plaintiff is evident, the alimony should be set proportionally, avoiding harm to the minimum necessary for the sustenance of the provider and the children who depend on him.
Percentage Based on Income and Fixed Amount Tied to the Minimum Wage
Based on the elements of the case, the judge partially granted the mother’s request.
The sentence determined that, during periods in which the defendant has formal employment, the alimony will correspond to 15% of his net income, including base salary, thirteenth salary, vacation with an additional one-third, and other remuneration.
During periods of unemployment or informal work, the alimony should be paid as a fixed amount of 33% of the minimum wage, considered by the judge as the minimum amount indispensable to cover the basic needs of the plaintiff.
The decision follows a common practice in the courts, which combine a percentage of the income with an amount tied to the minimum wage to ensure the continuity of payments during moments of labor instability.
Legal Protection of the Elderly and Duty of Family Solidarity
The Brazilian legal system provides special protection for the elderly, and the Statute of the Elderly reinforces the duty of the family, society, and the State to guarantee dignity to individuals aged 60 or over.
When the elderly person does not have sufficient resources, the law allows for the request for alimony from relatives, reaffirming family responsibility.
Although the Jandira decision was primarily based on Article 1,696 of the Civil Code, the case aligns with this logic of solidarity, where family members are called to prevent the neglect of elderly individuals in vulnerable situations.
In practice, such situations demonstrate that the duty traditionally attributed to parents regarding minor children can also occur in reverse when elderly parents have no income and need financial support.
Legal Action in the Process and Parameters Applied
In the process, the mother was represented by attorney Moisés Taconelli, who formulated the request for support substantiating the plaintiff’s need and the applicable legal provisions.
The defendant acknowledged the duty to assist but pointed out financial limitations and additional family responsibilities.
The decision sought to balance the protection of the elderly woman with the son’s economic reality, establishing an amount that, according to the ruling, reconciles proportionality, reasonableness, and compliance with civil legislation.
This type of solution reflects a trend in the courts to adopt objective parameters, such as income percentages and fractions of the minimum wage, without sacrificing individualized analysis of each case.
To what extent is Brazilian society prepared to clearly debate what the limits of family responsibility should be in the protection of old age?
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