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The Italian Supreme Court in its Order No. 10168/2023 ruled on the functions of the divorce allowance, establishing the circumstances in which it must be paid. In this article:
In partially reversing the judgment of divorce pronounced by the Court of Rieti on July 18, 2000, the Court of Appeal of Rome had established the right of the woman (B.B.) to be paid a divorce allowance in the amount of 200 euros per month by her former husband (A.A.).
As a matter of fact, the Court had found that the economic imbalance between the spouses stemmed from the fact that the wife – unlike her husband – had devoted her entire life to taking care of the home and family, thereby sacrificing her professional ambitions.
Nevertheless, the former husband decided to appeal to the Italian Supreme Court based on two reasons:
Now, let’s examine what, according to the Italian Supreme Court, is the impact of housework on divorce allowance decisions.
As mentioned above, in the case at hand there was an important economic imbalance between the spouses.
The husband had always worked as a factory worker, while the wife -for as many as 17 years of marriage – had devoted herself completely to the family, giving up her studies and the possibility of building a professional future other than that of a housewife.
Upon the divorce, the latter had no income of her own to support herself. By established case law, the divorce allowance, in addition to having a welfare function, also has a compensatory and equalizing function in compliance with Articles 2 and 29 of the Constitution, from which the principle of post-marital solidarity derives.
This means that the right to receive a divorce allowance does not depend only on the fact that the applicant spouse – in this case, the wife – is not economically self-sufficient. The right to the payment of the divorce allowance also arises in cases where (like the one under consideration) a situation of economic disparity/balance between the spouses must be remedied (equalization function) resulting from shared choices that have characterized their family and married life (compensatory function).
The Italian Supreme Court then rejected the first ground of appeal, ruling that: “the Court of Appeals, in finding that the inequality between the spouses’ patrimonial conditions was attributable to the family organization, as a result of which wife had devoted herself exclusively to the family and the care of the children for as many as 17 years, held that such an organization should be presumed to have been adopted in agreement by the spouses, since, moreover, it was pointed out in the same judgment appealed against that the spouses, at the time of their consensually final separation, had respectively qualified as a laborer and a housewife: therefore there had been a precise and uncontested definition of roles within the couple”.
Now, let’s examine, then, when there is a real possibility of obtaining a revision of the conditions of divorce due to a change in the income conditions of the spouses.
In her second ground of appeal to the Italian Supreme Court, the ex-husband argued that the Rome Court of Appeals had erroneously quantified the allowance as it had taken into consideration facts that were likely to change over time, such as his cohabitation with a woman with income of her own.
The Italian Supreme Court rejected this plea as well, stating that any decision made by the Courts regarding the divorce allowance is based only on the circumstances existing at the time of the ruling, “with the consequence that should the situations that led to the quantification of the divorce allowance change, it is inherent in the system that it is possible to request a modification of the divorce conditions”.
Pursuant to Article 9 of the Italian Divorce Law, in the event that justifiable reasons – such as changes in the former spouses’ income – arise after the divorce decree, the parties may ask the court to order a revision of the provisions concerning the amount and manner of payment of the divorce allowance.
The ruling states that the right to a divorce allowance depends not only on the economic self-sufficiency of the petitioning spouse, but also on the need to balance the economic disparities between the spouses and compensate for the shared choices that characterized their family and married life.
In addition, the Court stated that decisions regarding divorce allowance are based on the circumstances existing at the time of the ruling. However, should these situations change, it is possible to apply for a modification of the divorce conditions under Article 9 of the Italian Divorce Law.
The impact of the ruling is significant, as it further clarifies the conditions under which the divorce allowance must be paid.
The Canella Camaiora Law Firm, in the area of family law, assists its Clients in matters related to separations, divorces, child custody, child support, property division, and other issues related to family relationships. The Firm mainly deals with issues concerning divorce allowance, since this is one of the central issues in divorce situations.
