UMA ANÁLISE CRÍTICA DA EFETIVIDADE DA PRISÃO CIVIL NO ADIMPLEMENTO DA PENSÃO ALIMENTÍCIA

Abstract

The civil imprisonment for alimony debt is an exceptional measure, currently provided for in Article 5, clause LXVII, of the Federal Constitution, in Article 528, § 3, of the Civil Procedure Code, and in Article 19 of the Alimony Law. The debtor's incarceration is procedural in nature, not punitive, and is generally applied for a period of one to three months, in a closed regime and, in theory, in places separate from common prisoners. However, the effectiveness of this measure is questionable, as it does not always lead to the payment of alimony, and it has the potential to lead to other vicissitudes, such as the worsening of the debtor's financial situation, the emotional abandonment of the alimentary, and the violation of fundamental rights of both parties involved. In view of this, the objective of this work is to discuss the effectiveness of the decree of the extreme coercive measure in the fulfillment of alimony payments, from the perspectives of the creditor and the debtor, within the scope of Family Law. At this point, it is important to emphasize that, for this monograph, effectiveness is understood as the union of efficacy (results) and efficiency (processes). Subsequently, after a long historical-normative contextualization of the institute of civil imprisonment, as well as a study of the principles that affect its application and/or removal in family relations, it was found, through a quantitative analysis of data from the National Council of Justice (Justice in Numbers, 2023) and the principled conflicts intrinsic to the prison rite, that the imprisonment of the alimony debtor is not necessarily an effective or efficient means to guarantee the fulfillment of alimony payments. This is because its slowness, which was evident, combined with the restriction of various rights of the alimentary and the alimentante, led to the belief that civil imprisonment is not the most effective measure to guarantee the fulfillment of alimony.