The Civil Code regulates maintenance between relatives: the right of a person who is in need to claim from certain relatives that they provide them with the essentials for their subsistence. It is a reciprocal obligation, arising between ascendants, descendants, siblings and spouses. It is limited only to these family relationships.
Food is understood as everything that is essential for sustenance, housing, clothing and medical care (article 142 CC)
In this post we are going to talk about child support since the gambling data brazil Supreme Court has ruled in two judgments on the retroactivity of child support .
The Supreme Court has resolved two appeals in which the legal problem arose regarding whether the father can be asked for maintenance with retroactive effect once the paternal filiation of a person has been judicially determined.
Case history
In the first case (STS no.: 3326/2015) paternal filiation was recognized in 2004 through a procedure initiated by the son (of legal age) and he had not claimed maintenance.
In 2011, the mother initiated proceedings to claim reimbursement of the son's maintenance and education expenses from the father. She brought an action for reimbursement under article 1,158 of the Civil Code . The court's judgment upheld the claim and recognised the right to reimbursement. The Provincial Court overturned the judgment and an appeal was lodged before the Supreme Court.
In the second case (STS 574/2016) the determination of paternal filiation occurred in 2008 through a procedure initiated by the mother since the son is a minor.
The determination of filiation was final in 2010. In a subsequent process, the mother claimed child support. The support was established with effect from the filing of the second claim.
In 2013, the mother initiated a third procedure claiming from the father the expenses of the minor from birth until the date of the establishment of the pension through article 1158 CC. Both in the first instance and in the Provincial Court, the claim was rejected. An appeal was lodged before the Supreme Court.
Supreme Court ruling
The First Chamber of the Supreme Court dismisses both appeals.
According to article 112 CC , filiation produces its effects from the moment it is determined and its effects are retroactive but only if the retroactivity is compatible with the nature of those effects and the law does not provide otherwise.
The law regarding alimony in its article 148.1 CC establishes an exception to retroactivity:
[su_box title=»Article 148.1 CC» style=»glass» box_color=»#808080″]The obligation to provide food will be enforceable from the moment the person who has the right to receive it needs it to survive, but it will not be paid until the date on which the claim is filed .[/su_box]
Child support will be paid from the date of filing the claim, this is regulated in the general regime of child support between relatives. It is also applicable to child support, as indicated in article 153 CC and as understood by both the jurisprudence of the Constitutional Court and the Supreme Court.