Divorce check for the ex husband/wife: the Supreme Court revolutionises the parameters

The First Section of the Supreme Court, on May 10 issued a ruling by the revolutionary content, which is a complete departure orientation followed by the Judges of legitimacy over the past 27 years.

The Supreme Court, in particular, held that, in assessing the existence of the maintenance allowance from a former spouse who requests the Court, should no longer take the life of the content parameter held constant marriage but rather the achievement or otherwise of ‘ economic independence through divorce.

The Judge, therefore, during the proceedings, shall ascertain whether the applicant former spouse has reached the ‘ economic independence or is in possession of all the requirements to obtain it .

If successful, it will reject the request.

The child support

What are the requirements prescribed by law that you configure the right to one of the former spouses to obtain such a check?

Article. 5, 6th co., Of the Law 898/1970 (which introduced the institution of divorce) it states that the activities of the judge should be structured in two distinct phases:

• the first is in charge of ascertaining the in n debeatur ( the existence of the fundamental requirements of the right relied on) the monthly allowance request: if the entity has or not the appropriate means “or not (can) obtain them for objective reasons “.
• The second, however, appears only in case of a positive outcome of the first and is intended to evaluate the quantum debeatur (the monthly amount of the check). The judge  must take into account “the conditions of the spouses, of the reasons for the decision, personnel and economic contribution made by each of the family … of both income and … (of) the length of the marriage.”

The ratio art. 5 above, according to the Court’s legitimacy, it has its foundation in the constitutional duty of economic solidarity (Art. 2:23 of the Constitution), which requires the spouse “strong” to lend assistance to the financially weaker even after the dissolution of the marital bond.

It follows, according to the decision No. 11504/2017, that the absence of the fundamental requirements l ‘ an debeatur – and therefore of economic solidarity reasons – make unfounded the right to obtain maintenance.

The previous case-law

The previous case-law, developed in response to judgments nos. 11490 and 11492 of 1990 of the United Sections of the Supreme Court, used as a benchmark to assess the appropriateness of the means of the former applicant spouse, “the same standard of living that had in wedlock , or who could legitimately and reasonably be based on matured expectations “during the same.

The application of this parameter by judges, for the past 27 years, instead of re-balance the property relations between the spouses, has led, in many cases, a ‘unjustified “annuity” in favor of the beneficiary spouse, in evident contrast with the aim of “economic solidarity” foreseen in the legislator’s intentions.

The policy of self-sufficiency and economic independence.

The need to re-balance a well-established judicial practice has prompted the Supreme Court to provide more restrictive interpretation of Article. 5, paragraph 6, of the Divorce Act, prescribing as a new benchmark for the assessment involved ‘ an debeatur no longer the standard of living, but the lack of independence or self-sufficiency of a former spouse who requests it.

The motivations

According to the judges of legitimacy, in fact, the application of the life of the content parameter in wedlock is not only “no longer relevant”, but radically contradicts the very nature of the institute of divorce and its effects (repayment obligations moral and economic association between the spouses) for the following reasons:

1. It determines undue prospect of ultra-activity of wedlock .
2. Consider the recipient as part of a marriage relationship now also extinct on the financial plan.
3. inevitably it leads to confuse the two phases in which it is expressed, the verification activity of about Judge.
4. The wedding is now conceived as an act of freedom and self-responsibility , and “place of suffering and effective communion of life … dissolvable”.
5. It can result in an ” obstacle to the establishment of a new family after the break-up of the first family group “.

Therefore, according to the Supreme Court, the Judge about at the stage of evaluation on ‘ an debeatur , must refer exclusively to the economic conditions of the applicant.

Only in the next step of determining the amount of maintenance can proceed to a comparative judgment between the respective personal and financial positions of the former spouses , on the basis of the criteria of Article. 5, 6th co., L. 898/1970.The attribution of the check divorzile, in fact, is not intended to rebalance the economic conditions of the former spouses, but to assist the beneficiary until they reach economic independence .

The 4 test indexes

Given these provisos, the Court identified four indices main to ascertain, in the evaluation phase on the entitlement, the existence or otherwise of economic independence and, thus, the adequacy of the means and / or the ability to obtain them for reasons objective:

1. the possession of income of any kind.
2. Any possession of securities estate assets and / or property , taking account of the charges and the cost of living in the habitual residence.
3. The ability and actual ability to work, in relation to health, age, gender and the employee’s employment or self.
4. The permanent availability of a home in which to live.

The burden of proving the existence of these requirements obviously it is up to the person who makes the request of maintenance. However, while in some cases the test is easier (eg .: availability of accommodation), in other cases it is much less (the capacity and the actual working possibilities indicated in point 3).

final Thoughts

The decision No. 11504 of 2017, on the one hand, is definitely a turning point in the criminal scene and perhaps tend to re-balance the post-divorzili relationships, avoiding that marriage continues to be for many a business to the detriment of the former economically stronger spouse.

On the other hand, however, it remembers that the legal principles expressed by the Supreme Court are not binding on the judges of merit. These latter, in fact, being to decide on similar cases, will have the right to follow the principle expressed by the Supreme Court in the latter judgment or depart from it, preferring to adhere to the precedent orientation.

IN SUMMARY

The Supreme Court, in its decision No. 11504/2017, held that the judge, to evaluate the existence of the maintenance allowance from a former spouse who requests it, should no longer take the parameter of the standard of living held by the latter in wedlock, but the achievement or otherwise of ‘ economic independence through divorce.

This determination will be based on four test indexes:

1. possession of income; 2) the possession of movable capital assets and / or real estate; 3) the capacity and the actual employment opportunities; 4) The availability of a stable home in which to live.

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