1. SUMMARY
The main purpose of this work is to discuss pregnancy support, regulated by law 11.804/08, especially with regard to the civil liability of the mother in the face of denial of paternity. In the first chapter, a brief analysis was made of the historical evolution of the food obligation, bringing an approach to the concept of food, its species, characteristics, the way in which this obligation was presented in the civil code of 1916, and how it is in the current civil code of 2002. In the second chapter, the concept of the unborn child, the beginning of personality, as well as the unborn child’s right to food was addressed, since the Civil Code of 2002 adopts the theory of conditional personality. This code says that the rights of the unborn child are protected, but the beginning of their personality is conditioned by their birth alive. The third chapter addressed pregnancy alimony, dealing with ownership, procedural aspects, the burden of proof with a view to the presumption of paternity, as well as the review, the possibility of conversion and the extinction of pregnancy alimony. Finally, in the fourth chapter, civil liability, moral and material damage were discussed, bringing their respective concepts, the relationship of both with pregnancy food, thus arriving at the main subject of this study, which is the civil liability of the mother in the face of the denial of paternity, in which it was demonstrated that there will only be civil liability on the part of the mother if she has acted with intent or guilt.
Key words: maintenance obligation, unborn child, pregnancy maintenance, civil liability.
ABSTRACT
This study’s main aim discusses the pregnancy food, governed by law 11,804 / 08, in particular regarding the liability of mothers’ facing the denial of paternity. In the first chapter, there was a brief analysis of the historical evolution of maintenance, bringing an approach to the concept of food, their species, characteristics, how they had such an obligation in the civil code of 1916 and how the current Civil Code of 2002. In the second chapter, discussed the concept of the unborn child, the beginning of personality, and the right of the unborn to food, since the Civil Code of 2002 adopts the theory of conditional personality. This code says that the unborn child’s rights are protected, but on the condition the beginning of his personality her to live birth. The third chapter covered up the pregnancy food, dealing with the ownership of procedural aspects, the evidential burden overlooking the presumption of paternity, and the review, the possibility of conversion and the extinction of pregnancy food. Finally, in the fourth chapter was spoken of liability, moral and material damage bringing their concepts, their relationship with pregnancy food, thus arriving main subject of this study is that the liability of mothers’ in the face of negative paternity, it was shown that there will be only liability of mothers’ if it has acted with malice or fault.
Keywords: maintenance, unborn, pregnant food, civil liability.
2. INTRODUCTION
This work addresses an important issue within family law, which is pregnancy maintenance, with the main focus being the civil liability of the mother in the face of denial of paternity.
It is clear that, legally, the topic of food is always undergoing transformations. Thus, with the historical evolution of the food obligation, we can observe that there is a constant search for the adequacy of the right to food at each moment in history, always assuming that the family must help each other.
Now, Brazilian legislation has improved on the subject, but it is evident that there are still several discussions in doctrine and jurisprudence, since innovations and diverse positions always appear, since the law can be interpreted under various aspects, including regarding those obliged to provide food, as well as to whom it is owed.
In this sense, this work was developed from a study of the historical evolution of food obligations in Brazil, bringing the peculiarities of food, that is, its concept and species. Then, the concept of unborn child, insofar as the Civil Code of 2002 adopts the theory of conditional personality, since this code says that the rights of the unborn child are protected, but condition the beginning of their personality to live birth . Therefore, the unborn child’s right to food was also addressed, arriving at the analysis of pregnancy food, dealing with ownership, procedural aspects, the burden of proof with a view to the presumption of paternity, as well as review, possibility of conversion and extinction of pregnancy foods.
Finally, it was mentioned about the moral and material damage and its relationship with pregnancy food, thus arriving at the main subject of this study, which is the civil liability of the mother in the face of the denial of paternity, in which it was demonstrated that there will only be civil liability of the mother, that is, the duty to repair the damage caused, if she has acted with intent or guilt.
3. BRIEF HISTORICAL EVOLUTION OF THE FOOD OBLIGATION IN BRAZIL
Before necessarily starting to discuss the historical evolution of the alimony obligation, it is necessary, in order to have an initial notion of what alimony obligation is, to provide a definition, even though it may be supplemented later on.
Thus, the maintenance obligation can be understood as the “munus” governed by law, which is based on family solidarity, whereby relatives are obliged to provide each other with mutual assistance, in order to live in a manner compatible with their condition. social, including to meet the needs of their education, health, food, clothing and leisure, as long as they do not have sufficient resources nor can they provide them through their work for their own subsistence, and the person from whom they are complaining can provide them, without missing out on what is necessary for your livelihood.
From this prior notion of what the maintenance obligation is, one can note the temporal evolution, that is, the historical evolution that guides such an institute.
As Pereira (2007, p. 23) teaches us:
Anyone who traces the family in sociological research finds several references to primitive stages in which the power of imagination is more active than factual evidence; The generalization of particular occurrences is more prevalent than the induction of social and political phenomena of open acceptability.
Now, in Roman law, the family was organized on the principle of authority and included those subject to it. Thus, the pater was, at the same time, political leader, priest and judge. It can be seen, therefore, that authority was in the hands solely of the pater, who was considered the head of the family and from whom the determinations in the family environment emanated. (PEREIRA, 2007, p. 26).
In this sense, Dias (2007, p.447) states that “paternal power was exercised by the man, head of the conjugal society, who had the obligation to provide for the family, which became an alimony obligation when the marriage broke up” .
Cahali (2007, p. 38) teaches us:
The maintenance obligation, which was established in clientele and patronage relationships, was applied late, which shows that it was not mentioned in the first Roman legislation, as at that time the paterfamilias concentrated all rights in their hands.
In any case, when referring to Roman Law, there is no way to say exactly the historical moment from which the structure, in the sense of recognizing the maintenance obligation, was inserted in the family context, since there was no historical precision to define when the food concept became known. (VENOSA, 2003, p. 372).
Such historical inaccuracy can be easily understood, as it would be a reflection of the very constitution of the Roman family, which remained throughout the archaic and republican periods. In the same period, mutual assistance between members of a family or social group emerged as a result of moral obligation, that is, the so-called officiumpietatits (duty of affection), and therefore without any relationship with norms of positive law.
Only at the moment when the blood bond between the members of the same family is established does the moral duty of the food obligation arise in Roman law, which is what Sanches states (apud CAHALI, 2007, p. 39) when he talks about the moment history of recognition of the maintenance obligation, then adds that:
It would have been from the principate onwards, in concomitance with the progressive affirmation of a concept of family in which the blood bond acquires greater importance, when we then witnessed a gradual transformation of the moral duty to help, although widely felt, into a legal obligation own, ; the controversy then shifts to the extent of people linked to the maintenance obligation.
Thus, due to the concept of family existing at the time, which had a direct connection with the blood bond, incestuous children had no right to food, only the natural child, even spurious, would be raised on milk by the mother until the age of three. years, and any other expenses for the child would be borne by the father. (PEREIRA, 1988, p.298).
In Pereira’s lesson (1988, p. 299):
If the father or mother cannot provide food to the natural child, the latter should demand it from the grandparents, preferably maternal, and, in the absence of ascendants, the obligation would be passed on to the brothers, unless the applicant had moved away from their house, brothers; if he had married without parental leave; or if, after his father’s death, he had entered into a marriage without permission from the same brothers.
In the same vein, Cahali (2007, p.40) also highlights the “existence of a reciprocal maintenance obligation between the spouses, but the matter is controversial, as the vast majority of doctrine recognizes the woman’s right to maintenance, but the husband does not ”.
On the other hand, in relation to the unborn child, the issue of food is complex, as numerous texts referred to the unborn child as maternal viscera, not granting it any autonomy or rights.
In the lesson by Chaves (2000, p. 21), he clarifies that:
For Roman Law, legal personality coincided with birth, before which there was no talk of a subject or object of law. The fetus, in the mother’s womb, was a part of the mother and not a person. Therefore, he could not have rights and attributes recognized as a man, but his interests were safeguarded and protected from any situation contrary to his comfort.
However, Benedita Inêz Lopes Chaves (2000) teaches that they considered the unborn child as a subject of rights. This fact was confirmed by regulations that prohibited the capital execution of a pregnant woman, whose sentence had to be handed down after giving birth, as well as a governing law that determined that the womb of a woman who died pregnant should be opened, in order to attempt to save her child.
The two hypotheses adjust the protection of the unborn child’s right to life, which also did not depend on birth, but, rather, had its scope. If inheritance rights…