Layoff partner: denial of revocation of child support allowance

The Italian Supreme Court in a recent Order (No. 36800/2022) ruled that the withdrawal of child support can be ordered only when the obligor provides evidence of a significant worsening change in his or her income. In this article:

The mistake made by the court in granting the appeal

A.A. appealed to the Court of Lanciano, asking to revoke his obligation to pay monthly 400 euros in child support. The appellant assumed, as a matter of fact, that he had been laid off due to Covid and that his economic-income conditions had therefore worsened.

The court – upholding the appeal – ordered the revocation of A.A.’s obligation to pay monthly child support.

The former partner filed a complaint with the Court of Appeals requesting that the maintenance obligation on A.A. be reinstated on the following grounds:

• she, too, had been placed in the layoff fund because of the covid and-unlike A.A.-had documented all income earned after June 2020 (the date on which the judgment establishing A.A.’s maintenance obligation was issued);
• as mentioned, A.A. had not provided any evidence regarding the worsening of his economic-income conditions (being, moreover, also the owner of substantial real estate assets);
• that the couple’s underage children lived with her and she herself had provided and continued to provide for their support.

But what does the maintenance obligation in the hands of parents consist of?

It is our Constitution which states in Article 30 that: “It is the duty and right of parents to maintain, instruct and educate their children, even if born out of wedlock.”

Even more in detail, Article 147 of the Italian Civil Code (while speaking of married couples) establishes an express obligation of maintenance (financial) on the part of the parents in favor of the children. Each parent, according to Article 316 bis Civil Code will be obliged to provide for them “in proportion to their respective substances and according to their capacity for professional or household work.”

Therefore, on the basis of their economic means, each parent must bear all expenses that contribute to the support of the children in the social context in which they are placed.

To this end, this certainly includes all those expenses for activities that allow the children–with respect for their abilities, natural inclinations and aspirations–their psycho-physical development but also those for the simple satisfaction of ordinary daily needs.

Court of Appeals and Supreme Court: no to revocation of maintenance allowance

Back to the case facts, the Court of Appeals questioned by B.B. reinstated the maintenance obligation in A.A.’s hands.

The Court, reiterating that a final measure (such as the one by which the maintenance obligation was originally established in A.A.’s head) can be modified only in the presence of new facts, noted that the mere change in the working condition, does not automatically lead to a significant reduction in income.

A.A. would have indeed had to prove the worsening of his economic-income situation by providing evidence of both the income he received before June 2020 (we repeat, the date on which the judgment establishing his maintenance obligation was issued) and the income he received after being laid off.

The Court of Appeals therefore reinstated A.A.’s maintenance obligation, as A.A. had failed to provide any evidence of a significant worsening of his income condition such as to justify the withdrawal of the allowance.

A.A.’s appeal to the Supreme Court was to no avail. The Supreme Court, adhering in toto to the Court of Appeals’ orientation, declared the appeal inadmissible and also ordered A.A. to pay the costs of the litigation.