“Rethinking the issue of calculating alimony
Our law does not provide a mathematical formula for calculating the amount of child support due to a child in case of separation or divorce. The legally defined criteria are subjective and ultimately depend on each court’s assessment of a particular situation.
Alimony is the basis of thousands of cases pending in Portuguese courts. Requests for alimony to be fixed, increased or reduced by fathers, mothers, children, ex-wives and ex-husbands occupy substantial resources in the family and children’s courts.
The outcome of these thousands of cases is uncertain. More often than not, it is not possible to anticipate, with certainty, the amount of alimony that will be fixed in the judgment. And it is this uncertainty that brings into court many disputes that would otherwise be resolved by agreement between the parties.
The problem is that our law does not provide a mathematical formula to calculate the amount of alimony due to a child in case of separation or divorce. The legally defined criteria are subjective and ultimately depend on each court’s assessment of a given situation.
The Civil Code merely provides that the amount of alimony must meet the needs of the alimony payee (the person receiving the alimony), taking into account the means of the obligor (the person paying the alimony). The legal vagueness thus allows the court total discretion.
This solution has some advantages, since it allows the amount to be paid to be adapted to the unique and concrete reality of each family. The truth, however, also entails disadvantages.
The vagueness and uncertainty inevitably provoke litigation between couples who, by definition, are already in reverse. In addition to all the issues that a divorce raises (how will the children’s time be divided between the parents, the fate of the family home, the division of the couple’s assets) there is the problem of alimony: should one parent pay alimony? And if so, how much? On the other hand, the lack of strict criteria allows different amounts to be set for identical cases, varying from judge to judge and court to court.
In many Western countries, solutions have been found to objectify the process of determining the amount of alimony, particularly in the case of alimony paid by parents to children. In some cases, maximum and minimum values are observed. In other countries, however, they have gone even further, using tables to determine the amount of alimony to be paid in each case, or at least a more or less narrow range of values. These scales may or may not be binding on the courts, and generally take into account the net income of the payer, whether or not he has other dependents, the length of time he usually spends with the child to whom the alimony is paid, and his age. This is the case, for example, in Australia and Spain.
These solutions, even in cases where they are merely guidelines for the courts, make it possible to anticipate the amount to be paid. And because they do, they allow the parents to reach a consensus without going to court. The emotional and economic benefits for families are understandably enormous. And, by the way, also for the courts, which are more indebted.
Maybe it’s time we also consider a solution here that allows families to determine the amount of pension to be paid in advance, without going to court. And thus mitigate or avoid parental conflict. The children, who are the ones we are most concerned about, will thank us.”