Family and rights

Supreme Court opens to prenuptial agreements

OK to the agreement that, in the event of separation, commits the husband to return to his wife the money spent on renovating her house

by Angelo Busani

12 August 2025

3' min read

Key points

Double-reading
Opening signs

3' min read

The Supreme Court opens up on pre-nuptial agreements. We may still be a long way from the contents of the contract concluded between Amazon boss Jeff Bezos and Lauren Sanchez who, before their wedding in Venice, set stakes on practically everything, including escapades, but the Supreme Court now adds another stage to a path that seems irreversible.

In its order 20415, the Cassazione has in fact ruled the agreement between a husband and wife whereby, in the event of separation, the husband undertakes to return to his wife the money she has spent to pay for the renovation expenses of a house owned by the husband. This is thethe latest jurisprudential episode on the subject of covenants stipulated during marriage in view of the possibility of separation or divorce. In technical-legal terms, the decision is argued with the consideration that the agreement at issue was qualifiable as an atypical contract aimed at realising interests worthy of protection (Article 1322 of the Civil Code) subject to the event of marital separation. In other words, the separation is not understood by the Court of Cassation as the 'cause' of the agreement, but as an event on which the effectiveness of the agreements entered into by the spouses depends (in this case, the obligation to return the money lent by the wife to the husband)..

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A double read

On the one hand, it is undoubtedly true that this latest summary decision should not be read as the final turning point of the judges of legitimacy in the sense of the lawfulness of pacts by which spouses (or future spouses) agree upon property arrangements in the event of separation or divorce. Suffice it to recall that the Italian Supreme Court of Cassation (11012/2021, in Il Sole 24 Ore of 6 May 2021) has reiterated its traditional orientation according to which Article 160 of the Civil Code gives rise to an irremediable nullity, due to the unlawfulness of the cause, of any contract of patrimonial content (even if extremely favourable for the spouse entitled to the separation or divorce allowance) that the spouses stipulate with a view to the marital crisis, and this also on the grounds that this pact could affect the spouses' willingness to terminate the matrimonial relationship or to continue it (the same concepts had already been affirmed, for example, in decisions 2224/2017 and 5302/2006).

On the other hand, neither can Ordinance 20415/2025 be disqualified as an unimportant episode; and, on the contrary, the consideration that this decision could finally mark the irreversibility of a path that, in short, could lead premarital or conjugal agreements to no longer be considered in terms of illegitimacy for reasons 'of principle' appears well-founded, i.e. insofar as they are considered to be detrimental to atraditional idea of the family as a superior and unavailable value with respect to the interests of its individual members (whether spouses, future spouses or former spouses), whose private autonomy would therefore not be so broad as to be able to make agreements concerning their property relations.

Opening signals

Several unequivocal considerations bear this out, in particular that:

In the Supreme Court of Cassation, a notable breach has long been made with respect to the restrictive traditional orientation on the lawfulness of certain agreements observed on a case-by-case basis; it should be noted, for example, that while today the deduction of the separation as a condition of the marriage covenant is considered lawful, in the not so distant past such a condition was considered unlawful (Supreme Court of Cassation 2997/2009);

These are the conditions that make the marriage agreement lawful in many countries characterised by a degree of legal civilisation similar to ours.
conjugal agreements are lawful in many countries characterised by a degree of legal civilisation similar to ours and that, therefore, it is inevitable that an increasingly strong wind will blow from abroad in the sense of driving a collective conviction in Italy too regarding the legitimacy of conjugal and pre-marital agreements; just as has happened so many times in the past (think of the case of omnibus guarantees, trusts or insurance policies) for institutions that, peacefully practised abroad, struggled to be considered as usable in our system
a natural generational change is also taking place in the Supreme Court of Cassation, and therefore it can certainly be decisive that the matter be taken up by judges who are less conditioned by traditional studies, as they are trained in a more modern context than that of the first years of application of the rules of the family law reform of 1975.

In short, without prejudice to the unlawfulness of any agreements made during the marriage or prior to it concerning separation or divorce benefits and the fulfilment (pursuant to Article 143 of the Civil Code) of the mandatory duty to contribute to the family's needs in relation to the personal wealth and working capacity of each spouse, the road to regulating property relations between spouses or future spouses no longer seems so steep.