Maintenance Obligations: once the child, now the “parent”

Are children required to pay maintenance to their parents?

Opinion piece by Bárbara Figueiredo published [in Portuguese] in the Diário de Coimbra newspaper

As a corollary of the principle of family solidarity contained in Article 67 of the Portuguese Constitution, Article 1874 of the Civil Code establishes that “parents and children owe each other respect, assistance and support.” It is from this legal basis — and more specifically from paragraph 2 of Article 1874, which expressly provides that the duty of assistance includes the obligation to provide maintenance — that the obligation arises for parents to pay maintenance to their children, whether minors or adults (provided certain requirements are met). And although this is indeed the most traditional perspective (and the one most frequently discussed in the courts), the truth is that cases are increasingly emerging in the opposite direction, that is, cases in which the obligation of children to pay a maintenance allowance to their parents is at issue.

We are invariably dealing with situations in which older individuals find themselves in circumstances of economic hardship or even abandonment. In most instances, these cases never reach the courts, whether due to a lack of awareness that there is a true legal obligation (and not merely a moral one), or because of the stigma surrounding such situations. After all, bringing the matter before a court implies not only acknowledging a state of need, but also recognising a situation of abandonment by those who ought to be the last to fail in providing support.

Once the matter is submitted to judicial assessment, the decisions have consistently tended towards the imposition of a maintenance allowance. The analysis involves evaluating the needs of the person requesting the allowance and the financial capacity of the person who may, in theory, be required to pay it. And it seems fair to say that the courts have tended to fix such allowances because those who resort to litigation are, in most cases, facing extreme need, with no objective means of sustaining themselves. Low pension and retirement benefits in Portugal undoubtedly contribute to this reality. Yet, while it is true that the State has the universal duty to ensure the subsistence of each and every one of us, it is also necessary to question where we are heading when what once constituted one of the fundamental pillars of our subsistence (not only financial, but emotional as well) appears to be collapsing — to the point where State intervention (through the courts) becomes necessary to enforce a legal duty that, before being legal, was almost universally understood as a moral one. A duty which, even after being enshrined in law, remained largely forgotten for decades — it is only in recent years that we have seen a rise in such cases reaching the courts. The article, and the duty it enshrines, have been there since 1977. Yet only recently has morality lost the force that now seems to lie solely with the law and the courts.