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Court Decision in São Carlos Determined That An Uncle Should Pay Alimony to His Nephew with Asperger’s Syndrome, Raising Debate About the Extent of Alimony Obligations and Possible Interpretations of the Civil Code.
Did you know that the 2nd Family and Succession Court of São Carlos (SP) has already ordered an uncle to pay alimony to his nephew diagnosed with Asperger’s Syndrome.
The case was initiated after it was found that the father was in default and the paternal grandmother was unable to help financially, according to the website O Direito.
The ruling brought to light the possibility of third-degree relatives being called to fulfill the alimony obligation on a subsidiary basis.
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Decision in São Carlos Set Differentiated Amounts
The judge Caio César Melluso established two forms of contribution. When the uncle was employed or receiving benefits, he should pay 10% of net earnings.
In the event of unemployment or informal work, the obligation would be 40% of the minimum wage.
According to the magistrate, the decision was based on familial solidarity as provided for in the Constitution and Article 1.694 of the Civil Code, which allows for alimony requests among relatives.
It was noted in the records that the uncle had a stable standard of living, with evidence of compatible expenses and payment of an allowance to a stepchild, demonstrating financial capability to contribute.
What the Civil Code Provides About Alimony
Article 1.694 establishes that relatives can request alimony from each other without specifying a particular degree.
Meanwhile, Article 1.696 obliges parents and children, extending the obligation to all ascendants.
Article 1.697 states that in the absence of ascendants and descendants, sibling obligations may arise.
The law does not expressly mention uncles and nephews, which leads to different interpretations.
The jurist Maria Berenice Dias, for example, argues that the legislator did not restrict the alimony duty to specific degrees. For her, since collateral relatives up to the fourth degree have inheritance rights, they may also be subject to obligations in specific cases.
Criteria Used to Hold the Uncle Responsible
In the São Carlos case, the judge considered three main factors.
The need of the minor was proven by medical documents and ongoing treatment expenses.
The inability to contribute from the father and grandmother was demonstrated through default and financial incapacity.
The uncle’s economic capacity was verified by financial transactions and standard of living.
With these elements, the alimony obligation was extended to the collateral relative on a subsidiary basis.
Jurisprudence Has Divergent Decisions
Despite the São Carlos case, there is no uniform position in the higher courts regarding the obligations of uncles in relation to nephews.
In 2016, the 3rd Panel of the Superior Court of Justice (STJ) decided in REsp 1.510.612/SP that nephews are not obligated to support their aunts, as they are considered third-degree relatives, not included in Article 1.697 of the Civil Code.
The court established that, as a rule, the alimony obligation among collaterals does not extend beyond siblings.
State courts also have records of decisions rejecting alimony claims against uncles, reinforcing that the application of Article 1.694 must observe legal gradation.
Requirements for Alimony Requests Against Uncles
For a request to be analyzed, the jurisprudence has considered some basic requirements:
- Need of the Nephew: must be proven by medical reports, receipts, and expense documents.
- Inability of Priority Obligors: must be demonstrated by proof of low income, defaults, or death certificates.
- Financial Capacity of the Uncle: requires presentation of pay slips, bank statements, and asset records.
- Kinship: must be proven by certificates or identification documents.
Without this set of evidence, the tendency is for the action to be dismissed or result in a reduced amount.
How the Alimony Judicial Process Works
The action proceeds through the special procedure provided for in Articles 1.694 to 1.710 of the Civil Code and in Law 5.478/1968.
The process typically starts with a conciliation hearing.
In the absence of an agreement, the judge may establish provisional alimony until the final judgment.
In the instruction phase, evidence of income and expenses from the parties is collected.
If the ruling confirms the obligation, the alimony may be deducted directly from payroll or deposited in a designated account.
Repeated delays allow for judicial enforcement, and in certain situations, may result in civil imprisonment.
Frequently Asked Questions in Court
When the uncle already has children, the amount of alimony may be reduced, as the law states that payments should not compromise the sustenance of the debtor’s family.
If the nephew turns 18 years old, alimony continues only in cases of proven incapacity or when there is a need to cover higher education costs.
Delay in payment generates interest and application of fines, as provided by the Civil Procedure Code.
Debate Remains Open in Family Law
The case decided in São Carlos has been cited in petitions and legal studies for including an uncle in the passive side of the alimony obligation.
On the other hand, subsequent decisions from the STJ and state courts reaffirmed that the express limit in law remains with parents, ascendants, and siblings.
The discussion continues in the courts and should be analyzed according to the proof of need, the inability of primary obligors, and the financial capacity of more distant relatives.
In situations where these three conditions intersect, the Court may extend alimony to uncles or aunts.
Given the lack of jurisprudential consensus, in your opinion, how far should the alimony obligation extend within the Brazilian family?
Que loucura, A justiça desse país já era
A minha família ajudou na alimentação de crianças pequenas mas de livre e espontânea vontade, guando foi levado pra audiência mesmo que teve todas às provas das necessidades das crianças, a juíza não conseguiu dar continuidade ao processo porque os familiares deixou claro que se a audiência continuasse a às crianças seriam adotada e criada pela familiar de melhor recurso, pagaria estudo de alto nível estando junto dentro da mesma casa saída só com permissão da familiar, e se necessário morar fora ao contrário não pagaria nada pois decisão de familiares não deve ser obrigatório tem que ser livre e se faltar não deve ter prisão, morreu o processo porque a lei não permite tomada dos pais e dá pra outra pessoa criar como filiação, acabou a decisão judicial da vara da família.
Sou contra obrigatoriedade.
A obrigatoriedade deve ser dos pais da criança. Avós, já criaram seus filhos com grande luta e trabalho e, chegam na velhice onde vai gastar o seu dinheiro com a sua saúde, e com medicamentos . Isso é justo ?Qdo os pais são jovens e devem trabalhar para sustentar os seus filhos. E, também penso que tios não tem obrigação nenhuma. Vocês imaginam que , se essa ” moda” pega , uma grande parte de “folgados ” vão ter filhos para os outros sustentarem. Isso é justo? Vale a reflexão!