Carlo Rimini: 'Maintenance allowance is an umbilical cord, other solutions are better'

One never thinks about it, but the Italian divorce law of 1970, confirmed by the Italians in 1974, is an incredibly modern law. In those years,' stresses lawyer Carlo Rimini, 'in most Western states, divorce was allowed on the basis of two alternative grounds: the agreement of the spouses or the fault of one of them. Hence the phrases in American films: 'I will not grant you a divorce', or 'This is cause for divorce'. In Italy, on the other hand, whoever wants to divorce does not need to prove the fault of the other spouse or obtain his or her consent. Back in the 1970s, it was enough for the spouse who wanted a divorce to arm himself or herself with patience. One had to wait the prescribed time between separation and divorce: five years. Then the years became three. Now one year (or even six months in the case of separation by mutual consent) is enough. In essence, it is sufficient for one spouse to want a divorce. Now this model of divorce by unilateral will is widespread throughout the world, but we got there before the others. History sometimes goes in strange circles.

I am not sure that the decision to separate (and then divorce) is taken in most cases by women. I think the figure that emerges from the statistics is a kind of 'optical illusion'. The statistics do not measure the figure of who takes the initiative to end the marriage, but that of which of the two spouses decides, perhaps after months of discussion to seek an agreement, to file a court action if the agreement is not found. Judicial action is most frequently taken by women because in our society the wife is still too often the economically weaker spouse and it is the economically weaker spouse who urgently needs to turn to the court for protection if there is no agreement. It may therefore be that it is the husband who decides to separate, but it is then the wife who is forced to go to court to obtain maintenance for herself and the children. In this case, which is very frequent, the statistics show that it is the wife who will ask for separation, whereas in fact it is the husband who has decided to end the marriage.

I think that the economic dispute is in most cases related to the difficulty of redistributing resources after the failure of the marriage. Two houses, perhaps small ones, cost more than the one house in which the united family lived. If resources are insufficient to cover the increased expenses, sacrifices must be made and the distribution of these is, in most cases, the cause of litigation. Unfortunately, our law only provides for one instrument (the periodic maintenance allowance) that is totally inadequate to manage the conflict efficiently.

In most other Western states, maintenance allowance has been replaced by other instruments that prevent former spouses from being tied for a very long time by an economic umbilical cord. Compensation for the sacrifices made by the economically weaker party in favour of the family is, in these systems, guaranteed through the payment of a lump sum. Our family law, however, also has another peculiarity: the possible faults of one of the spouses, and thus the violation of the duties arising from marriage, are nowadays of very little relevance at the time of separation or divorce. This implies that the betrayed spouse, or one who feels victimised for any behaviour contrary to marital duties, is unlikely to be able to get the other to be punished for his or her behaviour. Resentment and the desire for revenge then lead to transferring the conflict to other issues: economic claims, but also, unfortunately, child-rearing issues.

It often happens that young people, despite a marriage in crisis, renounce divorce for two possible reasons. Sometimes they do it in the interest of their children. Today's fathers are much more present in their children's lives than their parents and it happens that they cannot bear the idea of losing their daily relationship with their children. Then, when the children grow up, this motivation fails and only then is divorce sought. The second reason that often leads to postponing the decision to file for divorce is economic: divorce is a luxury that many young people cannot afford because life in a separated family costs too much. Again, when the children grow up and become self-sufficient, the expenses decrease and at that time the decision to divorce finally seems affordable. In both cases, divorce at an older age puts an end to a married life that, from an emotional point of view, has been over for years.