Trib. Col. de Familia N° 5: Alimentos - Persona por nacer.
En un fallo sin antecedentes en los Tribunales de Rosario, y con escasísimos a nivel nacional, el Tribunal Colegiado de Familia N° 5 -el autor de la resolución es el Dr. Ricardo Dutto- resolvió una medida cautelar innovativa en beneficio de un bebé por nacer. El padre del niño que aún no nació deberá aportarle en calidad de cuota alimentaria a la mamá (a la que el magistrado considera legal representative of the baby) 20 percent of their salary.
The man had decided to leave his wife when she was pregnant and since then, did not provide any money for the maintenance of herself.
According to the order, the police must also provide the necessary documentation for the mother, then the child can enjoy the coverage of social work, in this case the Iapos.
The defendant and plaintiff were married in July 2007. But last February were notified of her pregnancy and the following month, the police began running away, always according to the complaint initial. Since then, the man provided food and denied women the wage bill that required him to obtain Iapos orders, birth control and access to medicines.
The truth is that there is no legislation providing for the needs of the unborn human being, as "the acquisition of rights is subject to the outcome of birth."
However, the judge interpreted the baby "may acquire rights through their representatives."
Dutto, however, warned that the decision is temporary and "interim nature" and that "tends to cover essential needs of the person to be born and, indirectly, of the mother during the course of the trial, until he leaned against other evidence to establish the final amount of pension.
addition, the judge found that the payment of food must be implemented immediately. "The measure is necessary to maintain the pregnancy, having the social work to meet the expenses the same demand and everything to do with the birth," he said.
In that sense, understood Dutto "reasonable" to establish a provisional fee equivalent to 20 percent of the salary of the woman had requested that the fee was equivalent to 30 police.
percent salary COMPLETE FAILURE
N ° 10 697 ROSARIO
August 6, 2008.
and Vista:
These styled GBP C / MHH S / FOOD. EXTE No 1376-1308.
resulting From:
GBP That starts with legal representation against MHH food demand relates that she married on July 27, 2007 with the respondent living together since 2006 at the home of his parents. the respondent was the livelihood of the household to be employed by the Provincial Police Command to play roles in Radio. In February this year she learns of her pregnancy on March 19, the spouse leaves the home to its opposition. Since then however the many claims did not provide food, a situation aggravated by her pregnancy, solved with the help of their parents. Also denied the certificate of salary which he is required by the Social Work IAPOS for orders and manage your pregnancy and buy medicines. Ask a quota is set below 30% of salary and summons to mind the paycheck. . Provides documentary evidence, confessional (pages 2 / 3).
provided the appropriate processing (fs.9), is accompanied by defendant's paycheck (pages 12), finds Ms. Advocate General (folio 16.) Requested the rating of fair (fs.17) and denied it (folio 18), are present in a state of resolve;
WHEREAS :
claim that it is the provisional feature food entreated by the parent and on behalf of her unborn child against her husband who left the former matrimonial home while pregnant.
That the locus standi of the plaintiff are proven record as certified marriage book (pages 5), the certificate of pregnancy obrante to fs. 6 .- and the presenter's own statement that is pregnant (conf art. 65 of the Civil Code). The ownership of parental rights exist without that mediates recognition, not derived from the law but merely noting it as existing.
For passive standing the mother's husband is presumed by law to the father of the child (conf art. 243 Cod. Civil) and according to the instrumental record ut cited above, it is also accredited .
As the art. 70 Civil Code vesting is subject to the outcome of birth. There is no specific rule that addresses the nutritional needs of human beings in pregnancy opposed to the appropriation of property by gift or inheritance-art. 64 Civil Code, nor mention of the claim pending the trial filiatorio food, unlike the laws that the reception (France, Spain)
The suit seeks the temporary food establishment in the form prior to birth and thus the respective state title. Although the unborn is an incompetent-art. 54 C. Civil-rights can be purchased through their representatives, art. 56 of the same order, taking his parents to this case only the mother-the-art legal character. 57 inc. 1 ° C- Civil
The suit seeks the temporary food establishment in the form prior to birth and thus the respective state title. Although the unborn is an incompetent-art. 54 C. Civil-rights can be purchased through their representatives, art. 56 of the same order, taking his parents to this case only the mother-the-art legal character. 57 inc. 1 ° C- Civil
The fact of the disability can not be taken as an excuse for not been acknowledged their rights by the very existence as a person who recognizes the encoder from the conception in the womb, art. 63 C. Civil.
's order that set a temporary food share does not necessarily require substantiation, in view of their protective nature temporariness and it tends to cover essential needs of the person to be born and indirectly to the mother during the course of the trial until such time as he leaned against other evidence to establish the final amount of pension.
The presentation would frame within the innovative precautionary measure because it imposes a new do, other than the prevailing status quo, to innovate in the situation, As no other suitable, being so characteristic its temporariness, which will continue until the time of issuing a decision on the merit to confirm or ratify what has been advanced from the perspective of precaution, should be granted with greater flexibility to meet its purpose satisfactorily.
The matter as it requires a real advance on the judicial guarantees afforded in order to prevent the right for which recognition is sought, lose virtuality
regard to the requirements:
1 .- The verosimilitid of law, arises from the existence of a marriage between the mother and her husband. To this we must add the pregnancy of the first and the legal presumption of art. 246 C for her husband Civil
2 .- The need of the requester as the owner is the person to be born can only do so effectively through his mother, but may be required if the demonstration that mother is unable to get food for themselves.
3 .- It has also demonstrated the possibility of the defendant as an employee of the Province of Santa Fe to provide food in question. The constancy of your receipt of salaries shows that he works within the Ministry of Security of the Province as agent of the Police and functions within the Command Radio (folio 12)
4 .- The danger in delay is implanted in the unique situation of pregnancy of the mother and abandonment by the husband and father of the unborn child, which the firm favorable the measure is necessary to maintain the pregnancy, having the Social Work to meet the expenses the same claim and all relevant to the delivery.
turn, to establish a fixed sum by way of interim and in order not to distort the purpose of school care, it should be noted that it is sufficient to meet the needs of the beneficiary postponed.
That under these premises, it is reasonable to establish a provisional alimony equivalent to 20% of the assets less any mandatory deductions and benefits with more family wage, prenatal allowance, and any other bonuses received by the defendant, offices to the employer to retain the respective amount of each payment of salary and deposited in the Banco Provincia de Santa Fe-ag. Courts, to the order of this Court and for these cars, which governed from June 2008-the month were certified copies of the application (fs.8) - retain debiéndose June and July by an additional 10% as ordered above for two consecutive months from August this year.
That, according to the above, favorable opinion of Mrs. Advocate General arts. 265, 270, 274, 375 and coincidental rules. Civil Code, art. 531 of the Code of Civil and Commercial Santa Fe and 68 of the Organic Law of Judicial Power;
RESOLVE:
1 .- To accept the present and innovative nature of injunction:
2. - Set as provisional alimony in favor of the unborn person and in his capacity as legal representative shall be collected by his mother, Mrs. GBP DNI Nxxxx and by MHH, ID No. XXXXX, equivalent to 20% of assets mandatory deduction of discounts and benefits with higher wages family, prenatal allowance, and any other bonus received by the defendant, offices to the employer to retain the respective amount of each settlement of assets and deposits at the Bank of Santa Fe Province Courts-ag-to the order of this Court and for these cars,
3 .- alimony governed since June 2008,
4 .- ordered detained in June and July by an additional 10% as ordered above for two consecutive months August 2008
5 .- defer payment of fees for when you know the amount withheld. Insert
and get to know.
JUDGE: Ricardo J. Dutton. Secretary: Tania Camila Roimeser
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