The protective character of bank secrecy breach in alimony claims: deconstructing the view of an atypical measure in the enforcement of maintenance obligations

Abstract

This article analyzes the relativization of bank secrecy in maintenance lawsuits from constitutional and civil procedural perspectives, seeking to demonstrate that such measure, when duly justified, does not constitute an arbitrary violation of the debtor’s financial privacy, nor can it be reduced to the restrictive concept of an atypical enforcement measure. The study is based on the premise that maintenance obligations possess an existential and priority nature, grounded on the constitutional principles of human dignity, family solidarity, integral protection of children and adolescents, and the social right to food. The research adopts a qualitative methodology through bibliographical review, legislative analysis, and examination of precedents issued by the Superior Court of Justice and the Court of Justice of the State of Tocantins, especially in cases involving patrimonial concealment, labor informality, and incompatibility between declared income and the debtor’s actual economic standard. The study discusses how the increasing digitalization of financial relations, associated with contemporary mechanisms of patrimonial concealment, compromises the effectiveness of maintenance enforcement and demands a more efficient judicial approach in the search for substantive truth. It is demonstrated that bank secrecy, although constitutionally protected by the rights to privacy and private life, is not absolute and may be relativized whenever necessary to safeguard more relevant fundamental rights, particularly when the dignified subsistence of the dependent party is at risk. The study concludes that the breach of bank secrecy possesses a predominantly evidentiary and protective nature, constituting a legitimate, proportionate, and indispensable instrument for the effectiveness of maintenance protection, the proper assessment of the debtor’s contributory capacity, and the realization of the constitutional principles of human dignity, integral protection, and the best interests of children and adolescents.