Acórdão nº 03B3319 de Supremo Tribunal de Justiça, 22 de Janeiro de 2004
Magistrado Responsável: | SANTOS BERNARDINO |
Data da Resolução: | 22 de Janeiro de 2004 |
Emissor: | Supremo Tribunal de Justiça |
Acordam no Supremo Tribunal de Justiça: 1."A" intentou, em 12.10.2000, no Tribunal Judicial de Viana do Castelo, contra o seu cônjuge B, acção de divórcio litigioso em que pede seja decretado o divórcio entre ambos, com culpa exclusiva do réu, e que este seja ainda condenado a pagar-lhe a indemnização de 1.000.000$00, de indemnização pelos danos não patrimoniais causados pela dissolução do matrimónio. Na tentativa de conciliação a que se procedeu, em 10.01.2001, com a presença das partes e seus mandatários, não tendo sido possível conciliar os cônjuges nem obter o seu acordo para o divórcio ou a separação por mútuo consentimento, foi ordenada a notificação do réu para contestar. Antes, porém, de esgotado o prazo para a contestação, vieram ambos os cônjuges, em requerimento subscrito pelos respectivos mandatários e apresentado em 31.01.01, pedir a suspensão da instância por dois meses, o que lhes foi deferido, por despacho judicial de 06.02.2001, notificado a ambos os mandatários por carta registada expedida em 07.02.2001. Transcorrido este prazo, e nada tendo sido requerido posteriormente, até 08.05.01, a Secção fez o processo concluso nessa data, tendo a Ex.ma Juíza, em 09.05.01, proferido despacho em que, além do mais, ordenou se desse cumprimento ao disposto no art. 1408º/2 do CPC. A autora, cumprindo a notificação para o efeito recebida, juntou o seu rol de testemunhas, tendo notificado da apresentação o mandatário do réu, nos termos dos arts. 229º-A e 260º-A do mesmo Código. A Ex.ma Juíza proferiu despacho, admitindo o rol de testemunhas do autor. Notificado deste despacho, o réu veio arguir nulidade, sustentando que deveria ter sido notificado do termo do prazo da suspensão da instância, "para assim voltar a decorrer o prazo da contestação, entretanto interrompido, com vista a preparar a sua defesa"; como o não foi, teria a falta dessa notificação constituído nulidade, cujo suprimento requereu. Por despacho de 18.06.01, a Ex.ma Juíza indeferiu o requerido, por entender inverificada a arguida nulidade. O réu interpôs, de tal despacho, o pertinente recurso de agravo, que foi recebido para subir com o que, depois dele, houvesse de subir imediatamente. Seguiu, depois, o processo a sua normal tramitação, tendo sido, oportunamente, designada data para a realização da audiência de discussão e julgamento. Ainda antes do início desta foi junto aos autos um ofício proveniente do Tribunal alemão de Flensburg, dirigido ao Tribunal de Viana do Castelo, informando da pendência ali, de um processo de divórcio intentado pelo aqui réu contra a ora autora, cujo requerimento foi notificado à demandada em 07.07.2000. E do dito ofício constava ainda: Segundo informações, há um processo de divórcio da Senhora A contra o seu esposo pendente no tribunal local. A fim de determinar qual o tribunal competente, o tribunal daqui ou o tribunal local, rogamos que nos seja informado qual a data da notificação enviada ao esposo, indicando a existência do requerimento de divórcio. A este ofício foi dada a resposta constante do ofício de fls. 88 (versão em alemão a fls. 90). No início da audiência, o mandatário do réu requereu a junção aos autos de uma certidão emitida pelo já referido tribunal alemão, da qual consta o número do processo de divórcio pendente no dito tribunal, e solicitou a suspensão dos presentes autos, de acordo com o art. 279º do CPC, invocando a pendência daqueloutra acção, em que existe identidade de sujeitos, de pedido e de causa de pedir, e para a qual a ré (aqui autora) foi citada em data anterior à da citação do réu na presente acção. Invocou ainda, para o efeito, o disposto no art. 21º da Convenção de Bruxelas, do qual decorreria o dever de o tribunal vianense suspender oficiosamente a instância, até à decisão da causa pendente no foro alemão. Ouvida a mandatária...
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