Acórdão nº 5659/04.7TBSXL.L1-2 de Court of Appeal of Lisbon (Portugal), 15 de Dezembro de 2009
Magistrado Responsável | ONDINA CARMO ALVES |
Data da Resolução | 15 de Dezembro de 2009 |
Emissor | Court of Appeal of Lisbon (Portugal) |
S Meio Processual: APELAÇÃO Decisão: CONFIRMADA A DECISÃO Sumário: 1. Não tem sido unívoco o entendimento jurisprudencial quanto à questão de saber se o legal dever parental de contribuir com alimentos para o sustento dos filhos menores deve sempre ser fixado pelo Tribunal, mesmo nas situações em que nada se haja apurado acerca da vida social e profissional do progenitor vinculado à prestação de alimentos.
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Para uma corrente jurisprudencial, a fixação da pensão de alimentos não é obrigatória nas decisões que regulam o poder paternal, sempre que o obrigado não tiver quaisquer meios para cumprir esse dever de prestar alimentos. E, nestas circunstâncias, o Tribunal deverá abster-se de fixar qualquer pensão de alimentos, por forma a dar cumprimento ao critério da proporcionalidade plasmado no artigo 2004º, nº 1 do Código Civil.
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Para outra corrente jurisprudencial, o Tribunal deve sempre proceder à fixação de alimentos a favor do menor, ainda que desconheça a concreta situação da vida do obrigado a alimentos, visto que o interesse do menor sobreleva a questão da indeterminação ou do não conhecimento dos meios de subsistência do obrigado a alimentos, cabendo a este o ónus de prova da impossibilidade total ou parcial de prestação de alimentos.
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O argumento da necessidade de se obter uma condenação judicial para accionar o Fundo de Garantia de Alimentos Devidos a Menor não pode ser invocado para se defender a...
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