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Without Financial Means and Dependent on the Support of Third Parties, Elderly Mother Turns to Justice to Ensure Livelihood, While the Process Cites the Civil Code as Legal Basis and Reveals a Growing Scenario of Family Vulnerability in Brazil
The duty to provide financial support to ascendants has returned to the center of legal debate following a recent decision by the 2nd Court of Jandira (SP). The case involves an elderly mother, without income and in a vulnerable situation, who was forced to seek the judiciary to obtain alimony from her own son. The demand gained strength by relying on Article 1,696 of the Civil Code, which establishes that the right to alimony is reciprocal between parents and children and extends to all ascendants, with the obligation falling to those closest in degree.
The information was disclosed by a court decision made public, and according to the case documents, the plaintiff claimed to need material assistance to survive, as she does not have her own income. She requested the payment of a pension corresponding to 1.1 minimum wage. The son, although he did not oppose helping, argued that he is financially responsible for two minor daughters, which would limit his capacity to meet the requested amount.
However, the defendant presented his proposal: 11% of his net income in case of formal employment, and a third of the minimum wage — 33% — if he were unemployed. The Public Prosecutor’s Office expressed a position in favor of the partial granting of the request, seeking a balance between the mother’s needs and the son’s capacity to contribute.
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Judge’s Decision Highlights Legal Support and the Principle of Proportionality Provided in Article 1,694 of the Civil Code
In analyzing the evidentiary set, Judge Juliana Moraes Corregiari Bei highlighted that the duty to provide alimony between ascendants and descendants has clear legal support, as provided in Article 1,694 of the Civil Code. The provision establishes that the amount of alimony must be fixed proportionally to the needs of the recipient and the resources of the payer.
The magistrate noted in her decision that although the need of the elderly mother without income was evident, the initially requested amount — 1.1 minimum wage — appeared “excessive given the financial reality demonstrated by the defendant”. The judge also emphasized the existence of the two minor daughters for whom the defendant is responsible and considered the expenses presented in his income statements.
The ruling reinforced that alimony should not represent a burden incompatible with the payer’s financial situation but must minimally meet the essential survival needs of the beneficiary. Therefore, the judge opted for an intermediate solution.
Alimony Percentage Set at 15% of Net Income; Amount Will Be One-Third of the Minimum Wage If Unemployed
In light of the above, the judge partially granted the mother’s request and set the alimony payment at 15% of the son’s net income, encompassing base salary, 13th month’s salary, vacation plus a third, and all other remuneration-related payments in the event of formal employment.
In cases of unemployment or informal work, the amount will be equivalent to 33% of the current minimum wage, establishing a minimum level essential for covering the basic needs of the elderly mother, as highlighted in the court decision.
The process involved the lawyer Moisés Taconelli, legal representative of the plaintiff. The decision, registered in the process 1004550-31.2022.8.26.0299, aligns with other rulings reflecting the increase in alimony demands between parents and adult children, especially in scenarios of financial vulnerability and aging populations in Brazil.
Do you agree that children should be legally required to support their elderly parents when they have no income to survive?
Source: Conjur
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