Family relationships encompass a wide range of mutual rights and duties that go beyond money and love.
In abstract terms, Article 1874(1) of the Civil Code states that "Parents and children owe each other respect, help and assistance." With regard to the duties of parents towards their children, which are the subject of this article, Article 1877 of the C.C. states that "children are subject to parental responsibilities until they reach the age of majority or emancipation", and Article 1878(1) of the C.C. states that, with regard to the content of parental responsibilities, "children are subject to parental responsibilities until they reach the age of majority or emancipation". states that, with reference to the content of parental responsibilities, "It is the parents' duty, 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", and that these duties cannot be waived (see art. 1882 of the C.C.).
In this segment, Article 1885(1) of the Civil Code states that "It is the parents' responsibility, in accordance with their possibilities, to promote the physical, intellectual and moral development of their children".
It is true that, during marriage, the exercise of parental responsibilities belongs to both parents (cf. art. 1901 of the C.C.) and, as such, in this situation there is no problem in principle.
However, in the event of divorce or separation of the parents - and ignoring in this article the "shared custody" regime, as it transcends the object of analysis - the maintenance owed to the children and the way in which it is to be provided will have to be regulated by an agreement between the parents and subject to homologation, always with the prior opinion of the Public Prosecutor's Office, in order to ascertain that the respective agreement protects the best interests of the child.
This agreement can be promoted either by one of the parents (since they are not married, the State cannot act ex officio, due to ignorance of the facts underlying its actions) or, in the case of divorce, either by mutual agreement or by litigation, it must be agreed on compulsorily (cfr. art. 931 of the C.P.C. and articles 1909 and al. b) of no. 1 of art. 1775 of the C.C., and art. 45 et seq. of the General Regime for Civil Guardianship Proceedings (RGPTC)).
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As for the criteria for determining the specific amount, there is no applicable legal table or formula in the Portuguese legal system, although there are doctrinal guidelines that consider objective facts to determine a specific amount, such as in the United Kingdom and Spain, which could be considered in the same way.
Specifically, national legislation states in abstract form in Article 2003 of the Civil Code that "Maintenance shall mean everything that is indispensable for the maintenance, housing and clothing (...) [including "(...) also the instruction and education of the person being supported in the event that he is a minor"], and Article 2004 of the Civil Code that "Maintenance shall be proportionate to the means of the person who is to provide it and to the need of the person who is to receive it".
This is an amount that will be paid, as a rule, in monthly installments by the parent with whom the minor does not habitually reside.
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This pecuniary payment, commonly known as " alimony ", has some peculiarities that are important to mention.
As a result of various constitutional rules, including the obligation of parents to educate and maintain their children (Article 36(5) of the Portuguese Constitution), it is an unavailable and non-renounceable payment (see Article 2008 of the Civil Code).
In view of the importance underlying its fulfillment, it is covered by two specific means of enforcement, which are much faster than the common ones, in the event of non-compliance, e.g. special enforcement for maintenance, p. in art. 933 of the C.P.C. and following, and special regime for making maintenance effective, p. in art. 48 of the RGPTC.
As for the amounts that can be seized, contrary to what happens with other obligations, in which the seizure has a minimum limit, when it is the only income, of the amount equivalent to one national minimum wage, in the event that the debt relates to maintenance owed, the amount equivalent to the entire social pension of the non-contributory regime will be unseizable, i.e. the equivalent of the I.A.S. (Social Support Index), which currently corresponds to €438.81.
On the other hand, violating the obligation to provide child support also results in criminal proceedings being brought, if a criminal complaint is filed in accordance with the law. Article 250 of the Penal Code states that "Anyone who is legally obliged to provide child support and is in a position to do so, fails to comply with the obligation within two months of the due date, shall be punished with a fine of up to 120 days", and the repeated practice of such conduct may result in a prison sentence of up to one year. On the other hand, if the parents are in a position to pay maintenance, or put themselves in that situation with the intention of doing so, "endangering the satisfaction, without the help of a third party, of the fundamental needs of those who are entitled to it", they can be punished with a prison sentence of up to two years or a fine of up to 240 days.
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Furthermore, as the issue is ensuring the needs and well-being of minors, certain conditions have been met - e.g. "When the person judicially obliged to provide maintenance to a minor residing in national territory fails to satisfy the amounts owed in the manner provided for in Article 189 of Decree-Law no. 314/78, of 27 July. º 314/78, de 27 de outubro, and the person being supported does not have a gross income higher than the value of the social support index (IAS) nor does he benefit to that extent from the income of another person in whose custody he is, the State shall ensure the benefits provided for in this law until the effective fulfillment of the obligation begins" (cfr. no. 1 of art. 1 of Law no. 75/98, of November 19), the parent with whom the child resides may request the intervention of the Fund for the Guarantee of Maintenance Owed to Minors, with the state thus assuming this obligation.
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Finally, we must stress that the duties and rights to which the parents are bound cannot be derogated from on the grounds of the parents' failure to comply with others.
Thus, even if the parent obliged to pay maintenance fails to do so, they will always have the right/duty to visit and be with their minor children. If this right/duty is impeded by the other parent, there will be a mutual breach of parental responsibilities, which may lead to the imposition of financial penalties and coercive enforcement, as well as a possible change in the regime established for regulating the exercise of parental responsibilities (see articles 41 and 42 of the RGPTC).
On the other hand, even if the disqualification from exercising parental responsibilities is decreed, under the terms of articles 1913 et seq. of the Civil Code and 52 et seq. of the RGPTC, the parents' obligation to feed their children will continue.
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Final note: This article deliberately ignores the regime applicable to shared custody and maintenance owed to adult children, which, although they generally share the same regime and legal protection as support owed to minor children, have some particularities that warrant separate treatment.
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