Divorzio, 50 anni fa lo storico referendum

Cassation

From the guilt of the wife who hides that she is not illegitimate to the fedigrafa to be maintained

Supreme Court verdicts mirror social changes

by Patrizia Maciocchi

12 May 2024

4' min read

Key points

The charge for the end of the union
De facto cohabitation and cheque
The standard of living goes up in the attic

4' min read

"The concealment of the defect of virginity by the bride normally constitutes serious injury towards her husband." With these reasons, the Cassio (judgment 2007/1973) fifty-one years ago, upheld the appeal of a groom who asked for the blame for the separation to be placed on his wife, guilty of having concealed from him that she had arrived at the altar not illibata.

The charge for the end of the union

Today, things have changed. Not even infidelity, whether of the man or the woman, is sufficient for the debt.

Even when it comes to cheating, in fact, the Supreme Court often saves the betrayer or betrothed from being charged if the lovers entered into a relationship that had already come to an end. Bringing evidence to the judges that the extramarital affair had begun when spiritual and physical communion with the legitimate husband or wife was already in crisis allows the betrayer to take the soft road. (Court of Cassation 15196/2023) It should be recalled that the debit has rather heavy consequences on the economic level because it generally cancels the right to maintenance and inheritance.

A risk that can also be taken with 'virtual' infidelity, taken for granted for the husband who surfs websites, looking for company, perhaps even pretending to be single. Then whether the betrayal is consummated or not does not matter, because the woman's dignity is violated. (Supreme Court, Order 9384/2018).

De facto cohabitation and allowance

Finding the right balance in couple relationships is not easy even for the Supreme Court. The Supreme Court was divided, for instance, on the consequences of a new de facto cohabitation for maintenance purposes. Judgment 22604/2020 was greeted with joy by men, so much so that it was renamed the 'Save Husbands Law', for having affirmed the end of the right to divorce allowance for the ex-wife who had established a stable and lasting cohabitation with another man. Not even time to sing victory that the Court of Cassation freezes the exes' enthusiasm, since it is usually the women who 'cash in', clarifying that the contribution to the ex-wife is still due if the new partner is not exactly prince charming: he is strong on the declaration of love but limp on the income declaration. And she alone cannot cope because she is disabled. (Supreme Court ruling 15241/2022). With regard to the irreversible loss of the right to the allowance in the event of a new cohabitation more uxorio, the Supreme Court (sentence 32871/2018) had affirmed that with a new stable family unit the right to maintenance disappears forever. The allowance is therefore lost even if the new relationship ends. The solution was therefore to choose the flirtation route, keeping away from those with serious intentions. The verdict of the United Sections (sentence 32198/2021) came to set the record straight. The Supreme Court ruled that the new de facto family does not exclude the right to divorce allowance for the economically weaker spouse who lacks adequate means, thus cancelling any automatism. The judges clarify that the new life path undertaken with a third person, which is judicially ascertained, does affect the right to the recognition of the divorce allowance, its revision or quantification, but does not necessarily lead to its complete loss, there is, in fact, the possibility of retaining it in a compensatory function.

The standard of living goes into the attic

Historic by now is the decision, again taken at the Joint Sections, with which the judges gave a disappointment to those who had always kept away from the slogan 'two hearts a hut', opting for more spacious solutions, possibly to be maintained even when hearts become three. With judgment 18287/2018, the judges definitively overrode the standard of living parameter in determining the divorce allowance, confirming its assistance and equalisation purpose. It is no longer the ex's bank account that counts, but rather the spouses' conditions, the reasons for the divorce, the personal and economic contribution made by each to family life, the formation of shared assets, and the income of both. It is crucial to assess whether the economic disparity between the ex-spouses depends on choices made during the marriage, such as professional sacrifices made in the name of the family.

The conditions for maintenance

Sacrifices that have their value even if made before marriage. With sentence 35385/2023, the Supreme Court of Cassation ruled that the judge in deciding on the right to divorce allowance and in quantifying it must also take into account the cohabitation before the 'yes'. A decision that takes into account a change in customs and records the existence of an increasingly widespread phenomenon, ignored instead by the law on divorce, no. 898 of 1970, promulgated in years when pre-marital cohabitation was rare. Today, the united sections of the Court of Cassation deal with it in the awareness, the judges write, that 'premarital cohabitation is by now a phenomenon of custom increasingly rooted in the behaviour of our society, which is accompanied by an increased recognition - in statistical data and in people's perception - of de facto ties understood as family and social formations of tendential equal dignity with respect to marriage'.

The instant divorce

Also owing to the Supreme Court was the ruling on instant divorce (Cassazione 28727/2023). The ermines agreed with the Italian courts that opened up the possibility for spouses to file a single document with a joint application for separation and dissolution of the civil effects of marriage. A green light to instant divorce without waiting the six months provided for by the short divorce.