Following on from the text published on https://www.tofadvogados.com/post/a-obrigação-de-prestar-alimentos-e-sua-tutela-legal, and taking into account its content, it is now necessary to make a brief reference to the system of maintenance owed to an adult child.
Thus, with reference to the legislation considered most relevant for this purpose, we have that
According to the provisions of Article 1878(1) of the Civil Code, in general terms “It is the parents' responsibility, in the interests of their children, to ensure their safety and health, to provide for their maintenance, to direct their education, to represent them, even if they are unborn, and to administer their property”.
In turn, with regard to the expenses of the adult child, Article 1879 of the Civil Code states that parents are released from their obligation to support their children and assume the respective expenses “to the extent that the children are in a position to bear those costs from their work or other income”, and Article 1880 states that, in the event of a child's death, the parents are not obliged to pay the costs. 1880 states that, in the event of majority (or emancipation), if the child has not completed their professional training, the obligation remains “to the extent that it is reasonable to require the parents to comply with it and for the time normally required for that training to be completed”.
In the event of divorce (or legal separation of persons and property and declaration of nullity or annulment of the marriage), Article 1905(2) of the Civil Code stipulates that “For the purposes of the marriage, the child's obligation to provide professional training is maintained”. C.C. states that “For the purposes of the provisions of article 1880, it is understood that, until the child reaches the age of 25, the maintenance fixed for his or her benefit during his or her minority shall be maintained, unless the respective education or vocational training process is completed before that date, if it has been freely interrupted or if, in any case, the person obliged to pay maintenance proves the unreasonableness of his or her demand”.
It can therefore be briefly concluded that the obligation to pay maintenance to an adult child exists until he or she completes his or her professional training (or interrupts it), or if it is unreasonable to demand it, and at most until he or she reaches the age of 25.
Under the terms of Article 989(1) of the Code of Civil Procedure, in the event that it is necessary to provide for the maintenance of adult children, the provisions of Articles 1880 and 1905 of the C.C. will apply, although in this case there is the peculiarity that, by agreement or, in the event of disagreement, by court decision, it may be agreed that the contribution be given, in part or in full, to the adult or emancipated child (see Article 989(4) of the C.P.C.).
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Regarding the competence to handle the respective process,
If an agreement has been reached for the payment of maintenance while the person concerned is a minor, in the event of non-compliance, or if it is necessary to change or terminate the maintenance fixed by the courts, jurisdiction will lie with the respective courts (cf. Article 989(2) of the Civil Procedure Code).
If there has been no agreement or any action has been taken regarding the exercise of parental responsibilities during the minor's childhood, the case should be opened at the Civil Registry Office, which will only be referred to the Court in the event of opposition and/or disagreement between the parents. (cfr. a) of no. 1 of art. 5, arts. 6, 7 and 8 of Decree-Law no. 272/2001, of October 13th).
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Regarding legal standing to demand payment of the pension,
Article 989(3) of the Civil Code states that “The parent who is primarily responsible for paying the expenses of adult children who are unable to support themselves may require the other parent to pay a contribution to the support and education of the children”.
Thus, the majority view has been that, even if it is of a subsidiary nature, in the absence of an agreement and in order to avoid the need for the adult child to bring an action against the parent who does not provide the “maintenance” owed, the parent who mainly bears the expenses of the adult children will have the right to demand the payment of maintenance in relation to the adult child.
Bearing in mind that the holder of the right to maintenance is the child, who acquires full capacity to exercise their rights when they reach the age of majority, they will always have legal standing to demand payment of the respective maintenance payment(s).
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