Maintenance not paid, father in need to be absolved

In the criminal offence of breach of family assistance obligations - in particular in the matter of maintenance allowance - the absolute impossibility of meeting the obligations does not coincide with total indigence. In fact, the obligor's ability to fulfil his duties without having to give up 'dignified survival' must be assessed. Thus, while the Court of Appeal of Catanzaro had confirmed the conviction of a man who had not paid his ex-wife the maintenance allowance of 450 euros per month, the Court of Cassation (sentence 883/2025 deposited yesterday) annulled the verdict and referred the case to a new judgement that would take into account the principle enunciated.

The 57-year-old appellant had appealed against the conviction, with grounds upheld only in part by the Court of Legitimacy, according to which the judgments on the merits were "uncertain at least as to the date from which the defendant would have committed a breach 'consciously' or [...] 'not necessitated' by his poor living conditions". Indeed, since the first instance judgment of January 2023, the social worker who had been in charge of the man between 2019 and 2020 had testified that the man claimed to be destitute and homeless.

Elements confirmed, as acknowledged at first instance, also by the documentation produced by the defence concerning a Pon of the municipality (inclusive support plan co-financed by the EU) for the fight against poverty. Until 2019, the man had, in fact, worked occasionally as a farm labourer and lived at his sister's house, from which he had then been removed. However, the plaintiff had not been able to return to his home, which had been foreclosed at the initiative of his ex-wife, who was owed maintenance.

The Court of Cassation's judgment also recalls that on the subject of violation of family care obligations, the absolute impossibility of meeting obligations is not comparable with total indigence. In fact, the individual's ability to fulfil his obligations without having to give up conditions of 'dignified survival' must be assessed. Moreover, already in the appeal, the man had brought in support of his thesis, in addition to the municipal Pon, a GdF report and a decree of dismissal - for similar offences committed in the same periods as the one under examination - in which the absence of fixed income, stable employment and therefore the objective impossibility of fulfilling his obligations was highlighted.