Acórdão nº 20335/09.6T2SNT.L1-7 de Court of Appeal of Lisbon (Portugal), 23 de Fevereiro de 2010
Magistrado Responsável | CRISTINA COELHO |
Data da Resolução | 23 de Fevereiro de 2010 |
Emissor | Court of Appeal of Lisbon (Portugal) |
S Meio Processual: APELAÇÃO Decisão: IMPROCEDENTE Sumário: 1. A falta de contestação do requerido no procedimento cautelar de alimentos provisórios tem o efeito cominatório semi-pleno, nos termos do art. 385º, nº 5 do CPC.
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Prevendo a lei expressamente que, no procedimento cautelar de alimentos provisórios, o requerido tem de ser convocado para a audiência de julgamento e pode apresentar contestação na mesma, não se estatuindo qualquer prazo especial para marcação daquela, deve a data para julgamento ser designada tendo em atenção o prazo para contestar, o qual é de 10 dias, por força do disposto no art. 303º, nº 2 do CPC, aplicável ex vi do art. 384º, nº 3 do mesmo diploma legal.
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Não sendo respeitado tal prazo, tendo ocorrido o encurtamento do prazo para o requerido apresentar a contestação, verifica-se a omissão de uma formalidade que a lei prescreve, que influi no exame e decisão da causa (porque viola o exercício pleno do direito ao contraditório), e gera nulidade processual, nos termos do disposto no art. 201º, nº 1 do CPC.
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Tal nulidade processual resulta do próprio despacho que designou data para a diligência, pelo que o meio próprio de a atacar é o recurso do referido despacho.
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A declaração feita, aquando do divórcio por mútuo consentimento, de que se prescinde de alimentos só pode...
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