Published online by Cambridge University Press: 09 November 2019
In the Brazilian Federal Constitution, the duty of the family, society and the state with regard to children, adolescents and young people has been enshrined in Article 227. This ensures, with absolute priority, the right to life, health, food and education, among others. This is one of the foundations that underlines the entitlement to food. On the other hand, it is the duty of the eldest children to assist their elderly parents, according to Article 229 of the fundamental law. With respect to alimentary obligations, the Civil Code of 2002 extends this beyond the parents, also affecting relatives, spouses and companions. This provision is not, however, the object of this chapter.
Once a debt is legally established, the debtor of child support cannot fail to fulfil this obligation under penalty of seizure of his assets, according to Article 528, § 8 of the Code of Civil Procedure (hereinafter CCP). He or she may also suffer civil arrest, according to Article 5, LXVII, following the procedure contained in Article 528 of the CCP.
Formally speaking, the child support debtor can be, at the same time, an active subject of the crime of material abandonment. This could occur continuously, if the lack of provision of the subsistence of food is unjustified. It would not be strictly necessary for the once-defaulting debtor to fail again with the duty to provide maintenance.
Civil imprisonment is therefore recognised as a form of coercion of the debtor, so as to encourage him or her to pay the owed support. Even if the food provider does not pay, he will be released when the set deadline expires. This also raises questions about its efficiency, bearing in mind that food is still not available for sustenance, even after exhausting the measures used to enforce the action.
The arrest of the active subject of the crime of material abandonment, as will be seen in the following lines, is punitive when the debtor also fits the crime described in Article 244 of the Criminal Code (hereinafter CC). In such cases, the debtor/defendant must then be arrested, not to pay his debt, but to fulfil the sentence given for the crime of material abandonment. In the definition of the crime, the Criminal Code extends the possibilities of who the off ender may be.