2/10/2024
There is growing social debate about the invisibility of the so-called care economy, i.e. the social devaluation of domestic care activities, child, elderly and special needs care in general, which are usually carried out by women.
In these situations, the relationship breakdown creates a significant economic disparity to the disadvantage of the spouse who has dedicated their time to caring, even if they have a paid job and do not depend on their ex-partner for their subsistence. And this is because, quite often, this dedication to care requires that one of the spouses give up or postpone professional opportunities, which makes it difficult for them to achieve the same professional position that would have been possible if they had dedicated themselves entirely to remunerated work.
In the light of this scenario and in order to respect the constitutional principles of equality, solidarity and the dignity of the human person, the Brazilian legal system has, recently, adopted the institute of compensatory spousal support, which seeks to maintain the socio-economic balance of the spouses after the end of the relationship.
Compensatory spousal support differs from the non-compensatory, as it is not intended to guarantee the subsistence of the spouse who found her/himself unable to maintain their basic needs after the relationship ended. It is actually an indemnity, intended to compensate for the loss of purchasing power of the person who gave up their professional growth in order to carry out care activities, even if this person is able to guarantee their own subsistence.
Despite already being recognized by part of the literature and jurisprudence, the institution of compensatory spousal support does not have any legal basis, a situation that may change if the 48/2023 Bill gets approved.
The bill aims to introduce an amendment to the Civil Code to allow the judge to establish compensatory spousal support in situations where, after the end of the relationship, one of the spouses suffers a significant loss of purchasing power, based on an analysis of certain aspects, such as the duration of the marital partnership, the spouses’ property situation at the beginning and end of the relationship, the spouses’ professional qualifications, and the consequences of the professional choices made for the benefit of the couple and the family.
The bill also stipulates that it will be up to the judge to set the duration of the maintenance, according to the mentioned guidelines and that, differently from what happens with the the non-compensatory spousal support, the debtor of compensatory spousal support cannot be arrested.
Nevertheless, there is a clear need to regulate compensatory spousal support, so that the work of caring can be properly remunerated and valued, and the constitutional principles respected.
