With hopes of modernizing and streamlining Brazilian judicial civil proceedings, the new Code of Civil Procedure (Law No. 13.105, of 16 March 2015) became effective on 18th March 2016. Brazilian society has long questioned the excessive lethargy of its judicial system, and, therefore, the modernization of legal proceedings became necessary for the effective ness of substantive law.
The new proceedural law brings about important changes in the enforcement of judicial decisions acknowledging the obligation to pay alimony, be it to offspring, former spouses or other family members. A parent’s duty to provide for their children while they are underage, or due to another reason as provided for by law, stems from parental authority; while, in turn, some family members, spouses, companions, or persons composing family units based on affection, can seek alimony based on the right to life and the principles of solidarity, financial capability, reasonability and human dignity.
Those breaching this obligation are subject to civil imprisonment, as provided for in item LXVII of Article 5 of the Federal Constitution. Article 528 et seq of the new Code of Civil Procedure, in turn, provide that, among other measures, the debtor, after being notified by the judge, shall have three days to pay the outstanding debt, prove that such payment has been made of justify that such payment is impossible to be made.
Further, the new procedural law establishes that the person in default may: (i) be civilly imprisoned for up to 3 months, in full incarceration but separate from regular inmates, until payment in full of the amounts due is effected; (ii) have his/her name included in the blacklists of debtors made by of credit protection rating agencies; and (iii) have his/her bank accounts judicially blocked. The limit for withholding salary at source has increased from 30% to 50% of the net salary.
If the obligation is not complied with, the judge may order the seizure of as many assets as required to pay the original amount of the debt, as well as interest, court fees and lawyer’s fees (Article 831 of the new Code of Civil Procedure), as well as notify the Public Prosecution Service, so that criminal measures for the practice of material abandonment can be taken, as provided for in Article 532 of the new Code of Civil Procedure.
The crime of material abandonment, provided for in Article 244 of the Brazilian Criminal Code, is punishable by imprisonment of 1 to 4 years, and a penalty of 1 to 10 times the largest minimum salary in force in Brazil, and applies to any person who fails, without cause, to provide for a spouse or offspring while they are underage or unable to work, or ascendants who are invalid or older than 60, failing to provide the necessary resources or failing to pay judicially stipulated alimony, and/or failing, without cause, to assist an ascendant or descendent who is gravely ill.
Notably, the changes to the new Code seem promising to minimize the breaches of alimony obligations. However, it cannot be forgotten that, more than a judicial problem, failure to pay alimony is a social and moral issue. A problem that touches on the cruel omission of a person who has a duty and means to provide, must be tackled by the Law and its operators, with the mission to surpass this barrier.