Families in crisis

Ex does not pay the cheque: this is when the offence is triggered

Omissions towards children and spouses, whether separated or divorced, are relevant. The failures must be serious and so protracted as to limit the means provided

18 April 2024

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It is an offence to breach family care obligations for anyone who fails to pay allowances not only to their child but also to their spouse, in the event of either separation or divorce. Indeed, the Criminal Code protects the vulnerable situation of ex-partners and the right of minor children to receive assistance, with the fulfilment of the obligations associated with the exercise of parental responsibility.

The reference standards are Article 570 ('Violation of family care obligations'), which applies to cohabiting families, and Article 570-bis ('Violation of family care obligations in the event of separation or dissolution of marriage'), with which, in particular, the incriminating provisions previously contained in the Divorce Act were introduced into the Criminal Code. With the inclusion in the Penal Code, however, protection was also extended to cases of separation.

The Supreme Court of Cassation observed (judgment 2098 of 17 January 2024) that it rationalised the rules on the violation of assistance obligations, 'enclosing in a single sanctioning provision the conduct of a spouse who evades the obligation to pay any type of allowance due in the event of dissolution, termination of civil effects or nullity of marriage, or violation of obligations of an economic nature in the matter of separation of spouses and shared custody of children'. In particular, the Court of Cassation rejected the objections raised to the extension to separation, stating that this has similar characteristics to divorce: because, as in the case of divorce, the judge may require one spouse to pay the other a contribution; and because the separated spouse may find himself or herself in a situation of objective vulnerability and need for protection, separation being a phase that if it may be transitory, may also turn out to be definitive, and in any case in both cases it is a phase of redefinition of relations marked by uncertainty, transformation and often also tensions". In essence, therefore, the rule correctly punishes breaches of obligations of an economic nature arising from measures adopted in the course of separation or divorce proceedings and established in favour of the children or spouse.

As to the extent of the breach, the judges (judgment 43311 of 25 October 2023) have clarified, in a case of non-payment of the sums established by the civil court for the maintenance of economically dependent children, that this must be "serious and sufficiently protracted, or intended to protract for such a length of time as to appreciably affect the extent of the economic means to be provided by the obligor". Consequently, when these prerequisites are met, it is not also necessary to verify whether or not the lack of means of subsistence has occurred.

The Court of Cassation (judgment 30150 of 11 July 2023) also explained that the parents' out-of-court agreement (whereby the custodial parent had renounced the allowance granted by the court for the child and charged to the other parent) cannot go so far as to deprive the child of the right to maintenance and cannot legitimise omissive conduct that ends up undermining the child's right to have the necessary means of subsistence.

But when does the criminal relevance of the non-payment of the cheque stop? For the Court of Cassation (again in Judgement 2098/2024), the absolute impossibility of the obligor to meet the obligations sanctioned by Article 570-bis of the Criminal Code, which excludes wilful misconduct, cannot, however, be equated with total indigence. It is necessary to assess whether, in a perspective of balancing the conflicting goods, without prejudice to the predominance of the interests of the children and of those entitled to benefits, the former obligor actually has the possibility of fulfilling his obligations without giving up decent living conditions. To this end, account must be taken of the particularities of the concrete case, and in particular of the amount of the benefits imposed, the obligor's available income, the diligence in finding, if necessary, additional sources of income, the need to provide for one's indispensable living needs and the socio-economic context.

The judges' indications

The facts of the case
The breach of material assistance duties incumbent on parents constitutes the offence provided for and punished by Article 570(1) of the Criminal Code. If the breach consisted in the non-payment of the sums established by the civil court for the maintenance of economically dependent children, the offence provided for in Article 570-bis of the Criminal Code is committed.
Cassal Court, judgment 43311 of 25 October 2023

Extinguished allowance
The exclusion of the right to the allowance or its reduction do not remove the offence committed by the previously obligated spouse who did not pay the contribution when he/she was obliged to do so, if the sums were established in favour of those in need. This is because the sums are in no way repeatable.
Cassal Court, judgment 25562 of 4 July 202

Obligations towards the children
The obligation, incumbent on both parents, to provide for the sustenance and maintenance of the minor children requires a specific enquiry into the two distinct conducts of the father and mother. The possible removal of one parent from the family home, even if desired by the other, cannot exempt him/her from providing directly for the children's means of subsistence.
Cassal Court, judgment 11242 of 16 March 2023