IF THE ECONOMIC SITUATION OF ONE OF THE SPOUSES VARY, IT IS POSSIBLE TO REQUEST THE REVALUATION OF THE AMOUNT OF THE MAINTENANCE ALLOWANCE.
DBD Investigations, through specific investigations, verifies the real lifestyle and assets of the spouse who requested the maintenance allowance following a legal separation. These investigations are essential for the redefinition or cancellation of the check which, more often than not, turns out to be disproportionate and untrue compared to the real condition.
The service performed will protect you, through photographic material and certified information in the case, the person applying for the check, lies about his or her condition. First they will be carried out investigations, then the working situation will be ascertained and the real standard of living will be documented in order to draw up a final report with legal value.
MORE INFORMATION ON THE MAINTENANCE ALLOWANCE
In matters of separation and divorce, the supreme judges have made it clear that anyone who goes to live with another person loses maintenance, even when this does not give rise to a marriage: stable cohabitation is sufficient. Cass. sent. n. 6855/2015
MAINTENANCE ALLOWANCE - OLD CHILD COHABITATING WITH SEPARATE SPOUS - LENGTH - UNTIL THE ACHIEVEMENT OF THE STATUS OF ECONOMIC SELF-SUFFICIENCY - SUFFICIENT (CC, ARTICLE 155)
The basis of the right of the separated spouse to receive the allowance referred to in Article 155 of the Italian Civil Code, lies, in addition to the objective element of cohabitation with the adult child (which suggests the continuation of the maintenance burden), in the duty to ensure education and professional training related to the abilities of the offspring (as well as the economic and social conditions of the parents), in order to allow the same to acquire its own economic independence. This duty ceases upon obtaining, on the part of the child, of a status of economic self-sufficiency consisting in the perception of an income corresponding to the professionalism acquired, whatever it is, in relation to normal and concrete market conditions, all evaluation of any small amount of income received remaining attributed to the trial judge, in order to exclude the termination of the maintenance obligation by the non-custodial parent.
Court of Cassation, Civil Section I, ruling no. 1476 – Pres. Luccioli; Rel. Mercolino; Pm (conf.) Russo
MAINTENANCE ALLOWANCE - CONDITIONS - ASSESSMENT OF THE MARRIAGE STANDARD OF LIFE - CONTENT (CC, ARTICLE 156)
Article 156 of the Italian Civil Code gives the spouse to whom the separation is not attributable the right to obtain a maintenance allowance from the other, not only if he is absolutely destitute, but whenever he is unable to maintain, during the separation, with his own economic potential, the standard of living he had in constant marital cohabitation, provided that this corresponded to the overall economic potential of the spouses and there is a different profitability between them that justifies the check with a rebalancing function. Therefore, the judge, in order to determine whether the allowance is due, must first assess the aforementioned standard of living and, therefore, establish whether the applicant spouse is able to keep it under separation with one's own means, being the lack of such means a necessary condition for being entitled to it. The standard of married life must be ascertained, in presumptively, on the basis of the overall income enjoyed by the spouses during the marriage cohabitation, with particular reference to the time of its termination, taking into account not only of the work income of each spouse, but also of all other types of income, as well as of the utilities deriving from real estate owned by them, even if they are unproductive of income.
Court of Cassation, Civil Section I, sentence no. 2707 – Pres. Luccioli; Rel. Salvago; Pm (conf.) Martone
MAINTENANCE ALLOWANCE - LENGTH - INACTIVITY OF THE APPLICANT - RELEVANCE - LIMITS (CC, ARTICLES 147, 155 AND 156)
In terms of personal separation of spouses, the prerequisites for the recognition of the maintenance allowance are the non-chargeability of the separation and the lack of income suitable for maintaining the previous standard of living, there being economic disparity between the parties, while the inactivity of the applicant for the allowance constitutes extinct circumstance of the obligation to pay the other spouse, only if resulting from the proven refusal of job opportunities, not merely hypothetical, but actual and concrete.
Court of Cassation, Civil Section I, ruling no. 27775 – Pres. Morelli; Rel. Salmè; Pm (diff.) Schiavon
ALLOWANCE FOR AGED CHILDREN - TERMINATION - START OF PAID WORK - CONDITIONS (CC, ARTICLE 155)
Under the regime of separation or divorce between parents, the obligation to pay the maintenance contribution for adult children to the spouse with whom they live ceases only if the obliged parent proves that they have achieved economic independence, receiving an income corresponding to the professionalism acquired in relation to normal conditions market, or that they voluntarily evade the performance of an adequate work activity. Once the start of a paid work activity is proven, it constitutes an assessment of merit, incensurable in cassation if justified, that about the insignificance, in relation to the circumstances of the case, of the income earned in order to exclude or reduce the allowance.
Court of Cassation, Civil Section I, ruling no. 14123 – Pres. Luccioli; Rel. Campanile; Pm (conf.) Zeno; Ric. Rubbiani; Controric. Volpe
CHILD ALLOWANCE - GOOD ECONOMIC RESOURCES OF THE OBLIGED - RELEVANCE (CC, ARTICLE 155)
For the purposes of determining the maintenance allowance in favor of the minor child, the good economic resources of the obligee are relevant not only in the proportional relationship with the contribution due from the other parent, but also in direct function of a broader satisfaction of the child's needs, given that the needs, habits, legitimate aspirations of this and in general its prospects for life, cannot fail to be affected by the socio-economic level in which the figure of the parent is placed.
Court of Cassation, Civil Section I, judgment no. 13630 – Pres. Luccioli; Rel. Campanile; Pm (conf.) Zeno; Ric. Palumbo; Controric. Marini
MARRIED OR FAMILY HOUSE - ASSIGNMENT ONLY IN THE PRESENCE OF CUSTOMER'S CUSTOMER WITH NON-SELF-SUFFICIENT CHILDREN OR SENIORS - SUBSIST (CC, ARTICLE 155 AND 1102)
In matters of separation or divorce, the assignment of the family home is aimed exclusively at the protection of the offspring, responding to the need for guarantee the interest of children in the preservation of the home environment, understood as the center of the affections, interests and habits in which family life is expressed and articulated. Therefore, the requirement of custody of minor children (or cohabitation with non self-sufficient adult children) remains essential; therefore, if it is true that the granting of the benefit has undoubted economic implications, nevertheless the assignment of the family home cannot be arranged in order to cover to the economic needs of the weaker spouse, whose guarantee is only intended for the maintenance allowance. It follows that, where this presupposition is lacking, why the children have already moved away from the place where the family existed, the reason for the application of the institution in question no longer exists, which cannot even find justification in the circumstance that the spouse already in charge is co-owner of the property in question. The hypothesis of agreement, even tacit, between the parties must be reserved in this sense; otherwise, the relations between the former spouses remain governed by the rules on communion and in particular by Article 1102 of the Civil Code.
Court of Cassation, Civil Section I, judgment no. 16802 – Pres. Luccioli; Rel. Bernabai; Pm (conf.) Pratis
MARRIED OR FAMILY HOUSE - LEASE - PROVISION OF THE JUDGE - EFFECTS ON THE CONTRACTUAL RELATIONSHIP (LAW 392/1978, ARTICLE 6)
The decision of the separation judge, in addition to determining a termination by law of the lease in favor of the assignee spouse, also entails the extinction of the relationship of the original tenant spouse, a relationship that is no longer susceptible to revival. Moreover, when the succession of the assignee spouse takes place to the original tenant spouse, there is also, in a completely figurative and virtual sense, a sort of handing over of the property to the lessor by the old tenant, with simultaneous delivery, always in a figurative sense, of the leased property to the new tenant.
Court of Cassation, Civil Section III, judgment no. 10104 – Pres. Di Nanni; Rel. Massera; Pm (conf.) Marinelli
CONDITIONS FOR THE RIGHT TO MAINTENANCE - EVALUATION BY THE JUDGE OF ELEMENTS OTHER THAN THE INCOME OF THE BURDEN - SUBSIST (CC, ARTICLE 156)
Conditions for the arising of the right to maintenance in favor of the spouse to whom the separation is not attributable are the lack of ownership of adequate own income and that is, income that allows the applicant to maintain a standard of living similar to that maintained in constant marriage and the existence of an economic disparity Between the parts. To this end, the reference parameter is the overall economic potential of the spouses during the marriage, as a conditioning element the quality of the needs and the extent of the applicant's expectations. In order to determine its quantum, factual elements must also be taken into account of an economic nature and, in any case, appreciable in economic terms, other than the income of the person charged, likely to affect the conditions of the parties.
Court of Cassation, Civil Section I, judgment no. 16334 – Pres. Criscuolo; Rel. Felicetti; Pm (conf.) Caliendo; Ric. Di Laudo, Controric. Di Carlo
SUPPORT OF CHILDREN - APPLICABILITY OF THE PRINCIPLES REFERRED TO IN ARTICLE 147 OF THE CC - THERE IS - DETERMINATION OF THE COMPETITION IN FINANCIAL EXPENSES - CRITERIA (CC, ARTICLES 147 AND 148)
Following the personal separation between spouses, the offspring have the right to maintenance such as to guarantee them a standard of living corresponding to the economic resources of the family and similar, as far as possible, to that enjoyed previously, continuing to apply Article 147 of the Italian Civil Code which, by imposing the duty to maintain, instruct and educate children, obliges the parents to cope with a variety of needs, not attributable only to the food obligation, but extended to the housing, cultural, school, sports, health, social aspects, to moral and material assistance, to the appropriate provision, as long as the age of the children requires it, of a permanent home organization, suitable to meet all needs of care and education; while the reference parameter, for the purpose of determining the contribution in financial charges, is constituted, according to the provisions of Article 148 of the Italian Civil Code, not only from substances, but also from the work capacity, professional or household, of each spouse, which also implies an enhancement of the ascertained income potential.
Court of Cassation, Civil Section I, sentence 19 May 2009 n. 11538 – Pres. Vitrone; Rel. Giancola; Pm (conf.) Pratis
MODIFICATION OF THE SEPARATION CONDITIONS - CONDITIONS - LESS OF AN INCOME FOR THE OBLIGED - SUFFICIENCY - EXCLUSION (CC, ARTICLE 156)
Article 156, last paragraph, of the Italian Civil Code, provides that in order to have a change in the separation conditions, there must be justified reasons, what are the changes in the economic conditions of the parties, in such a way that the overall balance established at the time of separation has changed, for this purpose the loss of a certain income which the obligee enjoyed, or the alienation by him of an asset, owing to the obligee, is not enough, in order to request and obtain the modification of the allowance established at the time of separation, provide proof of the change, as a result of these facts, of said balance.
Court of Cassation, Civil Section I, sentence 8 May 2008 n. 11487 – Pres. Vitrone; Rel. Felicetti; Pm (conf.) Velardi
DEATH OF ONE OF THE SPOUSES PENDING THE JUDGMENT OF SEPARATION - EFFECTS - RELEVANCE ON ACCESSORY CLAIMS - EXCLUSION (CC, ARTICLES 581 AND 948)
The death of one of the spouses, which occurred pending the judgment of personal separation, entails the declaration of termination the matter of the dispute, also with reference to the ancillary requests regarding the regulation of the relevant patrimonial relationships upon termination of the cohabitation, while the autonomous questions which, proposed in the same judgment, concern rights and relationships remain unaffected assets independent of the subjective modification of the status, already acquired in the assets of the spouses and in which the heirs take over, with the consequence that with respect to these questions the process can continue on request or against them.
Court of Cassation, Civil Section I, ruling no. 27556 – Pres. Luccioli; Rel. Panzani; Pm (conf.) Ciccolo
PRESIDENTIAL MEASURES IN RELATION TO CHILDREN - EFFECTIVE EVEN IF A JUDGMENT OF MARRIAGE NULLITY IS SUBMITTED IN THE ECCLESIASTIC SEA - SUBSIST (CPC, ARTICLE 708)
The measures relating to children, issued in the presidential seat, remain effective until the provision that replaces them, even when a sentence of nullity of marriage, pronounced in the ecclesiastical seat, eliminates the matter of the dispute on the main request for separation.
Court of Cassation, Civil Section I, ruling no. 17335 – Pres. Luccioli; Rel. Forte; Pm (conf.) Schiavon
REVIEW OF THE CLAUSES - DECREE ISSUED ON APPEAL - AGAINST APPEAL WITH THE EXTRAORDINARY APPEAL UNDER ARTICLE 111 OF THE CONSTITUTION - ADMISSIBILITY (CC, ARTICLE 156; CPC, ARTICLES 115, 116, 710 AND 711)
In the regime prior to the amendment of Article 360 of the CPC, brought by Legislative Decree 40/2006, the decree issued in the council chamber by the Court of Appeal following a complaint against the provisions issued by the court on the request for revision of the clauses of the homologated consensual separation can be challenged before the Court of Cassation with the extraordinary appeal pursuant to art. 111 of the Constitution for violation of the law, including the radical non-existence or mere appearance of motivation and not to ask for a review on the motivation pursuant to number 5 of article 360 of the Italian Civil Code, as the formal deduction of the violation of article 156 of the Italian Civil Code is worthless or Articles 115 and 116 of the Code of Civil Procedure.
Court of Cassation, Civil Section I, sentence 8 May 2008 n. 11489 – Pres. Luccioli; Rel. Giusti; Pm (conf.) Schiavon
REVISION REQUEST FOR DEBIT - AUTONOMOUS APPLICATION - OBJECTION ON SPECIFIC HEAD - EFFECTS (LAW 898/1970, ARTICLES 3 AND 4)
In the judgment of personal separation of the spouses, the request for a charge, although it can only be proposed in the context of the separation judgment, has the nature of an independent request, assuming the initiative of the party, subject to the rules and foreclosures established for applications, having a causa petendi and a petitum distinct from those of the separation request. So that, in the absence of systematic reasons to the contrary and the derogating provisions of Article 329, paragraph 2, of the CPC, the appeal proposed with exclusive reference to the charge against the sentence that has pronounced the separation and at the same time declared it to be debatable, implies the res judicata of the head on the separation, making the divorce action possible even though pending this appeal.
Court of Cassation, Civil Section I, judgment of 8 April 2011 no. 8050 – Pres. Carnevale; Rel. Felicetti; Pm (conf.) Russo
DIVORCE ALLOWANCE - ASSESSMENT OF THE SPANISH INCOME - ASSESSMENT OF THE ECONOMIC STRUCTURE ESTABLISHED IN SEPARATION - ELIGIBILITY (LAW 898/1970, ARTICLE 5)
For the purposes of quantifying the divorce allowance in favor of the former spouse, which is the result of a discretionary assessment by the trial judge, which cannot be censured in cassation, where free from vices of motivation, the spouses' incomes must not be ascertained in their exact amount, a reliable reconstruction of their respective positions being sufficient total assets, the report showing the inadequacy of the means of the applicant spouse to maintain a standard of living similar to that had during the marriage. The appropriateness of the allowance must be assessed in the light of Article 5 of Law 898/1970, however also the economic structure relating to the separation can represent a valid index reference insofar as it appears suitable to provide useful elements of assessment relating to the standard of living enjoyed during marriage and the economic conditions of the spouses.
Court of Cassation, Civil Section I, judgment of 8 April 2011 no. 8051 – Pres. Carnevale; Rel. Giancola; Pm (conf.) Russo
DIVORCE ALLOWANCE - ASSESSMENT OF THE SPANISH INCOME - ASSESSMENT OF REAL ESTATE AVAILABLE - SUBSIST (LAW 898/1970, ARTICLE 5)
Both for the purpose of identifying the standard of living of the spouses during marital cohabitation, and for the purpose of identifying the ability of the spouse requesting the allowance to maintain with their own means the aforementioned standard of living, both in order to establish the economic capacity of the spouse against whom the allowance is requested, the real estate available to her must also be taken into account, from the point of view of their direct usability for the satisfaction of their needs, or their actual or potential profitability, if obviously existing, as well as to take into account expenses necessarily related to their property.
Court of Cassation, Civil Section I, judgment of 8 April 2011 no. 8051 – Pres. Carnevale; Rel. Giancola; Pm (conf.) Russo
DIVORCE ALLOWANCE - REVIEW - CONDITIONS (LAW 898/1970, ARTICLE 9)
For the purposes of reviewing the divorce allowance, the dual condition of the existence of a modification of the economic conditions of the former spouses and the suitability of such modification to unchanging the previous structure created by the previous provision on the check. This procedure does not allow any re-evaluation of the elements that were kept in mind at the time of the determination original of the allowance, which is no longer assumed to be adequate, since it is aimed not at redetermining the extent through a renewed assessment of the right of the beneficiary spouse in the light of all temperaments, which must be kept in mind for the purpose of the concrete calculation of the amount of the allowance to be paid by the other spouse, but only to assess whether circumstances of such magnitude have arisen to make justified the adjustment of the allowance, increasing or decreasing, or its radical abolition, or conversely its attribution.
Court of Cassation, Civil Section I, sentence 10 January 2011 n. 366 – Pres. Luccioli; Rel. Salvago; Pm (conf.) Pratis
DIVORCE ALLOWANCE - USE OF A RESIDENTIAL HOUSE - RELEVANCE FOR THE PURPOSE OF THE SPOUSES - SUBSIST (LAW 898/1970, ARTICLE 5)
For the purposes of determining the divorce allowance, the entire assets of each spouse must be taken into account and the concept of income must be including not only cash income, but also utilities susceptible to economic evaluation, for which even the use of a home constitutes an evaluable utility to an extent equal to the cost savings that would be required to enjoy that property as a lease. So that this principle must be applied both in the hypothesis that the property, owned or otherwise in the availability of the spouse obliged to pay the allowance, is assigned to the spouse in charge of the minor children, both in the hypothesis in which the enjoyment of the property is recognized to the spouse who has a real or mandatory right: provided that in both cases the use of the house constitutes a utility that can be assessed on an economic level, which is added to the income enjoyed, altering the balance of the assets of the spouses which were based on the consideration exclusive of the income of each of them.
Court of Cassation, Civil Section I, ruling no. 26197 – Pres. Luccioli; Rel. Salvago; Pm (diff.) Pratis
DIVORCE ALLOWANCE - ASSESSMENT - STANDARD OF LIFE ENJOYED DURING MARRIAGE - DETERMINATION (LAW 898/1970, ARTICLE 5)
Regarding the dissolution of marriage, in the discipline dictated by Article 5 of Law 898/1970, as amended by Law 74/1987, which makes the attribution of a divorce allowance due to the lack of "adequate means", the verification of the right to the divorce allowance must be carried out by verifying the inadequacy of the means of the requesting spouse to maintain a standard of living similar to that enjoyed during the marriage and which would presumably have continued in case of continuation of the same, or that could reasonably foresee on the basis of expectations existing in the course of the marriage relationship. To this end, the standard of living can be deduced from the economic potential of spouses, i.e. the amount of their income and assets. The judge can deduce the standard of living from the documentation relating to the spouses' incomes at the time of the divorce, constituting, together with the assets of the spouses, a valid parameter for determining the standard of living and the possibility to keep it. The allowance must then be quantified to the extent necessary, in relation to the economic situation of each party, to tend to make it possible to maintain this content.
Court of Cassation, Civil Section I, sentence no. 22501 – Pres. Luccioli; Rel. Felicetti; Pm (conf.) Zeno
DIVORCE ALLOWANCE - AMENDMENT - CHALLENGE OF THE DECREE OF THE COURT OF APPEAL ISSUED DURING THE COMPLAINT - APPEAL PURSUANT TO ARTICLE 111 OF THE CONSTITUTION - ADMISSIBILITY - LIMITS (LAW 898/1970, ARTICLE 9)
The decree of the Court of Appeal, issued in the context of the complaint, against the decree of the court amending the rulings of the patrimonial order contained in the divorce decree, is valid decision-making and can be challenged with the extraordinary appeal for cassation pursuant to article 111 of the Constitution; however, this appeal is limited, in the previous legislation to Legislative Decree 40/2006, to the complaint of any violations of the law, which is also attributable to non-compliance with the obligation to provide reasons, which occurs only when the latter is materially omitted, or is expressed in arguments completely unsuitable to reveal the ratio decidendi of the contested provision or logically irreconcilable or objectively incomprehensible to each other, the legitimacy being excluded a verification of the sufficiency of the motivation itself in comparison with the evidential results.
Court of Cassation, Civil Section I, sentence 28 May 2009 n. 12500 – Pres. Luccioli; Rel. Giancola; Pm (conf.) Sorrentino
DIVORCE ALLOWANCE - EFFECTIVE DATE - FROM THE DATE OF THE DIVORCE APPLICATION - ADMISSIBILITY (LAW 898/1970, ARTICLES 4, 5 AND 9; CC, ARTICLE 2729)
The divorce allowance, finding its source in the new status of the parties, with respect to which the judge's ruling has constitutive effect, runs from the past in the final judgment of the resolution of the marital bond. Article 4, paragraph 10, of law 898/1970, as replaced by article 8 of law 74/1987, introduced a temperament to this principle, giving the judge the power to decide, in relation to the circumstances of the specific case, and even in the absence of a specific request, the effective date of the same allowance from the date of the divorce request, but in this case, the judge is required to adequately motivate his decision.
Court of Cassation, Civil Section I, ruling no. 12419 – Pres. Vitrone; Rel. Giancola; Pm (diff.) Pratis
DIVORCE ALLOWANCE - LENGTH - BIRTH OF A CHILD BY THE EX-BENEFICIARY SPOUS - PRESUMPTION OF COHABITATION MORE UXORIO WITH ANOTHER SUBJECT - EXCLUSION (CC, ARTICLE 156)
The possible birth of a child does not constitute evidence in itself sufficient and suitable to demonstrate the existence of a situation of coexistence more uxorio between the parents, having characteristics of stability and continuity over time such as to presume that the beneficiary of the the allowance derives economic advantages from this coexistence which justify the revision of the allowance itself. Furthermore, cohabitation more uxorio with another person can affect the extent of the divorce allowance only if proof is given, by the ex-spouse, that it, although not assisted by legal guarantees of stability, but in fact consolidated and protracting over time, influences in melius the economic conditions of the entitled person, following a contribution to its maintenance by the cohabitant, or at least appreciable cost savings deriving from the cohabitation itself.
Court of Cassation, Civil Section I, sentence no. 2709 – Pres. Luccioli; Rel. Schirò; Pm (conf.) Martone
DIVORCE ALLOWANCE - EFFECTIVE DATE - FROM THE DATE OF APPLICATION - CONDITIONS (LAW 898/1970, ARTICLE 4)
The trial judge, even in the absence of a specific request by the party, if the conditions are met, can make the divorce allowance run from the date of the request, rather than from that of the final judgment of the sentence, both in the event that it pronounces a divorce with a sentence not definitive, both in that in which at the same time it pronounces the cessation of the civil effects of the marriage and condemns one spouse to pay the other the divorce allowance. The principle enunciated by article 4 of law 898/1970, in the text amended by article 8 of law 74/1987, has in fact general application and does not constitute an exception to the principle according to which the divorce allowance, finding its own source in the new status of the parties, it starts from the passage into res judicata of the relative ruling, but rather represents a temperament to this principle, with the conferring on the judge the discretion, in relation to the circumstances of the specific case, to order the effective date of the same from the date of request, without for this purpose the delivery of a non-definitive sentence constituting a necessary requirement for the exercise of that power.
Court of Cassation, Civil Section I, sentence 8 January 2009 n. 133 – Pres. Luccioli; Rel. Bernabai; Pm (conf.) Ciccolo
DIVORCE ALLOWANCE - RELEVANCE OF THE AGREEMENTS MADE IN THE SEPARATION BETWEEN THE PARTIES - EXCLUSION - NON-LIQUIDATION IN SEPARATION OF THE MAINTENANCE ALLOWANCE - EFFECTS - NOT RELEVANT (LAW 898/1970, ARTICLE 5; CC, ARTICLE 2697)
The determination of the divorce allowance is independent of the patrimonial rulings operating, by agreement between the parties or by virtue of a judicial decision, in the regime of separation of the spouses, as the respective substantive disciplines are different as well as the nature, the structure and the purpose of the related treatments. The divorce allowance, as a direct effect of the divorce decision, must, in fact, be determined on the basis of its own criteria and independent from those relevant to the treatment due to the separated spouse. With the consequence that the economic structure relating to the separation can only constitute a reference index in the regulation of the matrimonial property regime, to the extent that it appears suitable to provide useful elements for the assessment of the conditions of the spouses and the extent of their income , while the failure to request or the failure to liquidate the maintenance allowance during the separation does not constitute a decisive or preclusive circumstance of the liquidation of the divorce allowance, where the applicant demonstrates the insufficiency of his / her willingness to maintain the content of life he was entitled to enjoy during his marriage.
Court of Cassation, Civil Section I, judgment no. 14921 – Pres. Luccioli; Rel. Felicetti; Pm (diff.) Caliendo
MAINTENANCE ALLOWANCE - LENGTH UNTIL THE JUDGMENT OF DIVORCE JUDGMENT - APPLICATION FOR ADJUSTMENT - ADMISSIBILITY (LAW 898/1970, ARTICLES 4, 5 AND 9)
Precisely because the maintenance allowance in favor of one of the spouses under separation is due until the final judgment of the divorce decision, the request for adjustment of the separation allowance during the divorce proceedings must always be considered admissible. , even if the spouse requesting this adjustment does not oppose the decision of dissolution or termination of the civil effects of the marriage and requests, at the same time, the payment of the divorce allowance pursuant to article 5 of law 898/1970 and provided that the granting of both checks is not required for the same period.
Court of Cassation, Civil Section I, judgment no. 16127 – Pres. Luccioli; Rel. Didone; Pm (conf.) Lettieri
MAINTENANCE ALLOWANCE - REQUEST FOR ITS MODIFICATION - INTRODUCTION OF THE APPLICATION FOR DIVORCE - TERMINATION OF THE DISPUTE ON THE REQUESTS FOR MODIFICATION - EXCLUSION (LAW 898/1970, ARTICLE 4; CC, ARTICLES 155 AND 156)
Only when the divorce decree becomes res judicata does the marriage bond and the status of separated, which constitutes the prerequisite for the maintenance obligation of the wife, which at the same time ceases and is eventually replaced by that of paying the divorce allowance, cease to exist, obviously remaining the parental obligations, as established or agreed in the separation or as otherwise regulated in the divorce. Therefore, the divorce decree does not necessarily entail the termination of the content of the dispute on the requests for changes to the ancillary conditions to the separation, if an interest of the parties remains in the definition of the latter judgment.
Court of Cassation, Civil Section I, sentence 10 December 2008 n. 28990 – Pres. Carnevale; Rel. Forte; Pm (conf.) Pratis
MARRIED HOUSE - ASSIGNMENT - TRANSCRIPTION OF THE PROVISION - RELEVANCE FOR THIRD PARTIES OF THE CONTENT OF THE TRANSCRIPTION NOTE - SUBSIST (CPC, ARTICLE 708; LAW 898/1970, ARTICLE 6)
In order to establish whether and to what extent a specific act or a transcribed judicial request can be opposed to third parties, it is necessary to have regard exclusively to the content of the transcription note, since the indications given in the note itself allow to identify without the possibility of ambiguity and uncertainty the essential elements of the transaction and the goods to which it refers, or the person against whom the question is addressed, without being able to obtain elements from the securities presented and deposited with the note itself. It is, therefore, completely irrelevant, for the purposes of the enforceability of the presidential provision for the assignment of the marital home to the purchaser of the property, the circumstance that the purchase title of the purchaser contained the specific indication of the existence of the assignment right. of his wife and his source.
Court of Cassation, Civil Section I, judgment no. 20144 – Pres. Luccioli; Rel. Schirò; Pm (conf.) Ceniccola
MARRIED OR FAMILY HOUSE - ASSIGNMENT ONLY IN THE PRESENCE OF CUSTOMER'S CUSTOMER WITH NON SELF-SUFFICIENT CHILDREN OR SENIORS - SUFFICIENT (CC, ARTICLES 155 AND 1102)
In matters of separation or divorce, the assignment of the family home is aimed exclusively at the protection of the offspring, responding to the need to guarantee the interest of the children in the preservation of the domestic environment, understood as the center of the affections, interests and habits in which is expressed and articulated family life. Therefore, the requirement of custody of minor children (or cohabitation with non self-sufficient adult children) remains essential; therefore, if it is true that the granting of the benefit has undoubted economic implications, nevertheless the assignment of the family home cannot be arranged in order to meet the economic needs of the weaker spouse, whose guarantee is only intended for the maintenance allowance. It follows that, if this presupposition is lacking, because the children have already moved away from the place where the existence of the family took place, the reason for the application of the institution in question no longer exists, which cannot even be justified in the circumstance that the spouse already custodian is co-owner of the property in question. The hypothesis of agreement, even tacit, between the parties to this effect must be reserved; otherwise, the relations between the former spouses remain governed by the rules on communion and in particular by Article 1102 of the Civil Code.
Court of Cassation, Civil Section I, judgment no. 16802 – Pres. Luccioli; Rel. Bernabai; Pm (conf.) Pratis
MORE UXORIO COHABITATION - EVALUATION FOR THE PURPOSE OF DIVORCE ALLOWANCE - LIMITS (LAW 898/1970, ARTICLE 5; CC, ARTICLE 2697)
The cohabitation more uxorio, albeit with a stable character, does not give rise to an obligation of mutual maintenance between the cohabitants and can also be established with a person without income and assets, so that the economic impact of said cohabitation must be assessed in relation to the complex of circumstances that characterize it. The relative, possible economic benefits, however, having an intrinsically precarious nature, must be considered to have a limited impact on that part of the divorce allowance which, in relation to the economic conditions of the entitled person, is intended to ensure the minimum conditions of legally guaranteed economic autonomy. that article 5 of the law on divorce intended to protect and article 9 of the same did not intend to steal the allowance from the holder, until he contracts a new marriage.
Court of Cassation, Civil Section I, judgment no. 14921 – Pres. Luccioli; Rel. Felicetti; Pm (diff.) Caliendo
DETERMINATION OF DIVORCE ALLOWANCE - INCOME OF THE PAID SPOUSE - CALCULATION ALSO OF THE ALLOWANCE FOR REPRESENTATION CHARGES - EXCLUSION (LAW 898/1970, ARTICLE 5; DPR 18/1967, ARTICLE 171)
In determining the maintenance allowance paid by the obliged spouse during the personal separation between spouses (and likewise in determining the amount of the divorce), the allowance for representation charges introduced, in terms of economic treatment for employees of public administrations serving abroad, from article 171-bis of Presidential Decree 18/1967, since it is a different emolument from the foreign service allowance, not constituting income and aimed at relieving the diplomat, in limits in which they are actually incurred by the representation expenses deriving from the office otherwise charged to him, the calculation of which for the purpose of determining the maintenance allowance in question is irreconcilable with the obligation to pay it back to the tax authorities for the part not consumed .
Court of Cassation, Civil Section I, judgment no. 23689 – Pre. Luccioli; Rel. Fittipaldi; Pm (diff.) Martone
APPLICATION FOR DIVORCE ALLOWANCE - AUTONOMOUS PERFORMANCE - EFFECTS - DEATH OF THE SPOUS - RIGHT OF THE OTHER TO THE ASSESSMENT OF THE AMOUNT OF THE ALLOWANCE - EXIST (LAW 898/1970, ARTICLES 5 AND 9)
The application for allowance, representing only a possible corollary of that of divorce, where it is introduced in the same process, although it depends on the same as it presupposes its acceptance, can have its own independent litigation and can be the exclusive subject of the matter of the dispute when the divorce is no longer discussed, but only the an or quantum of the related obligation. It follows that the death of the spouse, which occurs when the dissolution of the bond had already occurred, due to the judgment on the relative head having been formed, does not cancel the spouse's right to the definitive assessment of the extent of the allowance, of which it is still standing. discussing in the case, for the period from the passage into res judicata of the head of the divorce sentence to the date of the death of the obligated spouse and, therefore, does not determine the cessation of the matter of the dispute.
Court of Cassation, Civil Section I, sentence 11 April 2011 n. 8228 – Pres. Carnevale; Rel. Fioretti; Pm (conf.) Russo
PROCEDURE - CONSTITUTION IN JUDGMENT OF THE DEFENDANT OUTSIDE THE TIME LIMIT SET IN THE PRESIDENTIAL ORDER - EFFECTS (CPC, ARTICLES 163-BIS, 166, 167 AND 180)
The defendant who, in the divorce proceedings, is constituted within a term of less than 20 days prior to the hearing for appearance before the investigating judge does not incur forfeiture if the time interval between the date of filing of the presidential order of fixing of this hearing and the date of the hearing itself is less than the aforementioned dilatory term. As the only party affected by that violation, the defendant alone is entitled to complain or to waive the deadline if he believes he is still able to adequately explain his defense reasons.
Court of Cassation, Civil Section I, ruling no. 3905 – Pres. Luccioli; Rel. Cultrera; Pm (conf.) Patrone
PROCEDURE - DISPUTE OF INCOME DOCUMENTED BY THE COUNTERPARTY - AUTOMATIC OBLIGATION FOR THE JUDGE TO ARRANGE TAX INVESTIGATIONS - EXCLUSION (LAW 898/1970, ARTICLE 8; CPC, ARTICLE 187)
On the subject of divorce, Article 8, paragraph 9, of Law 898/1970 does not require the judge directly and automatically to order investigations using the tax police every time an indicated and documented income is disputed, but remits to the same judge the evaluation of this need, by virtue of the general principle dictated by article 187 of the CPC, which entrusts the judge with the right to admit evidence proposed by the parties and to order the others that he may have ex officio, after evaluating their relevance and conclusion.
Court of Cassation, Civil Section I, ruling no. 16972 – Pres. Adamo; Rel. Giusti; Pm (conf.) Ciccolo
QUOTE OF REVERSIBILITY PENSION - ESTABLISHMENT OF RIGHT - CONDITIONS - DIVORCE ALLOWANCE - EQUIPOLLENCE TO TEMPORARY MEASURES IN ANTICIPATORY FUNCTION - EXCLUSION (LAW 898/1970, ARTICLES 5 AND 9; LAW 263/2005, ARTICLE 5)
The right of the divorced spouse to the survivor's pension or to a share thereof in the event of concurrence with another surviving spouse, referred to in Article 9 of Law 898/1970, presupposes that the applicant, at the time of the death of the former spouse, is entitled to divorce allowance legally recognized pursuant to article 5 of the aforementioned law. It is therefore not sufficient that the former spouse meets the conditions for obtaining the divorce allowance and not even the receipt, in practice, of any maintenance allowance, but it is necessary that the allowance has been attributed with judicial measures that have the aptitude to assign a "divorce allowance", which can be qualified as such for the effects that follow in relation to article 9, paragraphs 2 and 3, of law 898/1970. The temporary and urgent measures provided for in Article 4, no. 8, of the law on divorce, aimed at preparing an essential and immediate regulation for the spouse in the perspective of divorce, with an anticipatory function with respect to the provisions of the divorce sentence, which only, pursuant to article 4, paragraph 10, of the law on divorce, in this case it has constitutive effect with respect to the allowance that one of the former spouses owes to the other for the latter's own needs.
Court of Cassation, Civil Section I, judgment no. 13899 – Pres. Luccioli; Rel. Giancola; Pm (diff.) Abbritti
MODIFICATION OF THE CONDITIONS OF SEPARATION / DIVORCE: THE PRESENCE OF A COHABITATION IN FACT "MORE UXORIO" LOSES THE RIGHT TO THE CORRESPONSION OF THE MAINTENANCE ALLOWANCE
The divorce allowance must no longer be paid to the former spouse who has established a new de facto family based on stability and, therefore, with a so-called "more uxorio" cohabitation. And this regardless of the economic conditions of the former spouses, ie the tenor and model of life that characterize the previous phase of coexistence between the spouses. This means, for example, that if the woman has first married a wealthy man and, once separated, is supported by him with a large allowance, but then decides to live with another man who, however, has a tenor of much shorter life, can not ask for integration from the first husband. In short, it is she who decides to lead a life with another partner with the most humble economic conditions and the ex cannot take charge of this. Otherwise we would end up admitting that the first husband must also keep the second if unemployed. This was clarified by the Supreme Court with a recent order.
Having undertaken a new stable and lasting coexistence, such as to constitute a real de facto family, excludes the right to have the divorce allowance paid again, regardless of the economic positions of the parties. In order for the maintenance obligation to be canceled, the ex-spouse must take a lawsuit to review the conditions of separation or divorce. This fact can prove to be fundamental, above all because, the judges recall, "where coexistence more uxorio is characterized by the characteristics of stability, continuity and regularity, giving rise to a real" de facto family ", any connection with the tenor and the model of life characterizing the previous marriage phase between the spouses, and, with this, every prerequisite for the recognition of the separation or divorce allowance.
OBLIGATION TO MAINTENANCE IN FAVOR OF THE EX-SPOUSE AND THE CHILDREN: WHEN CAN IT BE REDUCED?
The Supreme Court with the order 19106/15 establishes that it is reduced in the presence of serious facts, such as in the case of an illness. Reduced maintenance if there is disease Reduced maintenance if there is disease. In a climate of numerous separations and divorces, the need for perfect regulation of the entire process leading to the so-called end of a union emerges clearly. There are numerous proposed reforms. Often the common sense of those directly involved is not enough. From both sides come requests and counter-requests. The obligation to maintain is certainly a crucial issue. But what happens if an unexpected decrease in working capacity affects the person who is subject to the maintenance obligation (following separation or divorce) in favor of the former spouse and children?
The Supreme Court establishes that the said maintenance is reduced. The definition of maintenance is clear. The Cassation with a recent orientation has intervened to rule on the changes in a man's income: income decreased due to expenses related to the necessary medical care. This is therefore a different destination of his proceeds, originally addressed almost exclusively to his family (ex-wife and children), but now having different purposes and destinations for reasons that are clearly not in contrast with the maintenance also due. In this case, the Court of Cassation, section VI Civil, with ordinance no. 19106/15, accepted the appeal of a man who was affected by a form of atrial fibrillation; the circumstance had a significant impact on the performance of his professional activity and consequently on the income deriving from it.
REQUIREMENTS AND CONDITIONS OF THE REDUCED MAINTENANCE FOLLOWING EVENTS CONSIDERED SERIOUS AND SERIOUS
It is preliminary to state that by serious or serious events we mean not only pathologies capable of affecting the working and personal life of the person affected by them (as in the example case), but also occurring events that affect only income, as in the case of dismissal. It is the reduced working capacity in itself to be evaluated. It is clear that the first requirement for the maintenance allowance to be reduced is represented by supervening events (occurring in the separation or divorce sentence). These facts known at the time of the request for modification of the maintenance obligation must not exist at the initial, or rather genetic, moment of the judge's decision regarding the definition and content of the maintenance. If these facts were already present during the initial phase, a request about their existence and affirmation of their relevance would be worthless.