O ônus da prova nas ações de alimentos: a tarefa de fixação judicial do quantum alimentar em Direito de Família

Abstract

The judicial setting of alimony is a complex task in Family Law that requires the verifying of the claimant needs and the financial resources of the required person. An important issue concerning the value measuring of the alimony is the burden of proof, since the knowledge of the judge about what is happening in the financial life of the litigants is essential to ensure the alimony doesn't cause an injury to the personal dignity of the creditor or debtor. The present work aims to understand how the evidential burden works regarding alimony actions and to analyse whether this division promotes proper judicial protection. In order to achieve this goal, was taken doctrinal, jurisprudential and legal research on the subject. The results demonstrate the lack of approach of the burden of proof in the Brazilian doctrine; the adequacy of the procedure according to the Alimony Act (Law nº 5.478/68); the existence of judicial controversy referring to which of the parties is to demonstrate the ability to pay the claimant; and the use of the Appearance Theory as a support to judicial conviction in cases of practical difficulty in respect of assessing the defendant's real gains and income or when the latter shows off different economic conditions than attempts to demonstrate in the records. The research supports the conclusion on the need for greater attention to the issue on the part of lawyers, because the distribution of the burden of proof has a direct impact on the magistrate belief formation process and therefore the justice of the court's decision.