CONSTITUTIONAL THEORY OF EQUITABLE ALIMONY

• Grant number: 24/17276-3
• Support Opportunities: Scholarships in Brazil - Post-Doctoral
• Start date: September 01, 2025
• End date: February 28, 2026
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Conrado Hübner Mendes
• Grantee: Fernanda Busanello Ferreira
• Host Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

The focus of the study is to propose a new theory that opposes, and, to a certain extent, surpasses, the current family theory applicable in cases of alimony, based on constitutional and conventional human rights contributions and in a feminist perspective (Gonzales, Collins e Crenshaw). The research deals with the potentialities and limits of the Brazilian's triad of alimony based on need, capacity and proportionality, as exclusivist parameters used for the quantification of alimony. The insufficiency of the current criterion for guaranteeing the rights of children and women will be questioned, while at the same time, based on empirical research, it seeks to establish new parameters for the determination of the alimony. Therefore, with the contribution of the grounded theory, the research will go through the analysis of all the alimony lawsuits that were processed in the family courts of a capital of the country in 2022, in order to verify which bases were used to determine the alimony in those cases, confronting them with the jurisprudence of the national courts, especially the Superior Court of Justice, and point out blind spots in the judicial decisions produced. In a second moment, the research, based on empirical data, confronted with the Protocol for Judging with a Gender Perspective- recommended by the National Council of Justice since 2022 and made mandatory in 2023 - will propose to transpose the current theory, proposing another way of determining, in a more equitable way, the alimony. In addition, the contributions of feminist theories will be used, which point to the importance of the intersectional look at law to achieve social, racial and gender justice. The critiques of the theory of the economy care will also be used in this research.