- The child support for minor children is due to the to parents. In principle, the cessation of the parental power implies the termination of alimony, which, however, may resurface on the basis of kinship.
- The exemption and / or cancellation of the maintenance allowance is intended to relieve the obligor of the provide food, and is usually given by the age of the child and consequent cessation of the country’s power.
There is no obligation without cause, so that, when the cause of asking for food disappears, the of the judgment granting them.
- The judgment that awards the food almost always expresses the duration of the obligation food : the majority of the creditor of the food (child).
But, even if it is not expressed, its ” dies ad quem ” is implicit , since this obligation is a result of the father’s power, which is extinguished with the majority or marriage.
- The child’s adulthood, as stated, automatically extinguishes the obligation of the parents, unless obligation to continue in the pension until a certain age beyond the age of 21, such as in the hypothesis of the father being forced to think the son until the conclusion of the university course. Only in the child may be entitled to continue being parentally majority.
- The doctrine and the jurisprudence have been oriented in the sense of being unnecessary the filing of action itself, and that the exemption request can be deduced incidentally in the records food.
Since the obligation to provide food is derived from the country’s power, once this has been extinguished, the obligation regardless of the proposition of exoneratory action, as explained above. In this case, the application is in the form of cancellation.
In São Paulo, Rio de Janeiro and the Federal District, the exempt application can be deducted from the where the food was established.
But, there are localities in the application is only accepted through autonomous action, with free distribution, reason by which we suggest previous research in each locality.
The handling of the exemption request (or cancellation) is given by simple petition, in the that the pension was fixed, observing the following:
- 1. If the child being fed is over 21 years old and has already completed the university course, the cancellation (exoneration) regardless of its audit;
5.2 If the child is over 21 and under 24, he or she must be heard, since the child may be fed to demonstrate supervenient fact that surpasses, in importance, the extinct cause of the patria power, maintaining the duty of sustenance.
As an example, the child whose physical incapacity resulting from an automobile accident, the age of majority.
5.3. If the child is over 24 years of age and has not yet completed a college course, the maintenance of the pension food is not justified, because the country has ceased power, and cancellation is unavoidable, independent of his audience.
Should any supervening fact justify the pension (physical incapacity caused by accident, for example), the child may deduct a request for food in his or her own form, it will no longer be based on the power of the father, but on the mutual duty of assistance between parents and children – relationship of kinship.
According to Yussef Said Cahali (Dos Alimentos, 3rd ed., Ed. Revista das Tribunais, 1999, page 31),
“It has always been recognized, however, that certain circumstances, whether momentary or permanent, such as old age, illness, incapacity for work or disability of any other kind, can put the adult before an impossibility of obtaining the means that he needs for his subsistence; hence the problem of protection that is due to it . “
And, further on, he goes on to teach:
“As Beudant observes, this duty is not, in principle, but a duty of conscience; exist, however, a ‘minimum’ which is converted by law into civil duty, by the execution of which the right to sail, and this represents precisely the obligation to feed, it is based on the need to protect the exceptional circumstances, which transform the moral duty to legal obligation. ”
Author: Vera Lúcia De Oliveira Fernandes And Reviewed By José Manoel Frazão Mendes And Cynthia Da Fonseca Loberto
