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The Italian Supreme Court of Cassation Sec. VI, in its Order No. 27374 of Sept. 19, 2022, ruled again on a crucial issue in separation and divorce, namely the allocation of the marital home to one of the spouses.
In this article:
The assignment of the family home is, as a matter of practice, the responsibility of the so-called custodial parent of the offspring . This is the prevailing orientation of both doctrine and jurisprudence.
The assignment of the family home, in fact, cannot be attributed to one spouse rather than another from the perspective of contribution to maintenance. The purpose of the assignment is only to enable the child – in a difficult period such as that of parental separation – to continue to have a bond with the family and avoid disruptions in daily routines.
This is obviously undoubted when the children of the couple in crisis are minors. When, however, the children are of full age (not economically self-sufficient), a specific circumstance needs to be assessed, namely, that the child permanently cohabits with the custodial parent at the family home.
Pursuant to Article 337 sexies paragraph 1 of the Italian Civil Code under the heading “Allocation of the family home and residence requirements”: “The enjoyment of the family home shall be allocated taking into priority consideration the interest of the children. […]”. When a couple decides to separate, the judge – in terms of the allocation of the family home – must only take into account the interest of any minor or adult children who are not economically self-sufficient and not the economic situation of the spouses. What does this mean?
It means that the parent with whom the child will cohabit (so-called custodial parent) will also be the parent to whom the marital home will be assigned.
The legislation only protects the children’s overriding interest in being able to continue to enjoy a family home environment at a troubled time such as the separation of the parents.
The moment the protection of the interest of the offspring is lost (because, for example, they no longer live in the family home) the assignee spouse’s right to enjoy the family home is also lost precisely because it should not be considered a form of financial maintenance.
The assignment of the family home is conditioned solely and exclusively on the protection of the interests of the offspring. It follows that if – on the basis of a criterion of temporal prevalence – the offspring no longer inhabits the family home (perhaps returning to it only sporadically) the raison d’être of the assignment to that particular spouse is also lost.
The court then clarified what the notion of “relevant cohabitation” should be for the purpose of family home allocation: “The notion of cohabitation relevant for the purposes of the assignment of the family home under Article 337 sexies cc entails the stable dwelling of the adult child at the same, albeit with possible sporadic removals for short periods and thus excluding the hypothesis of the rarity of the returns, even if regular, configuring, instead, in that case, a relationship of mere hospitality; there must therefore be a stable connection with the parent’s home, characterized by cohabitation that, even if not daily, is compatible with the absence of the child even for periods that are not brief for study or work reasons, provided that he or she returns there as soon as possible and the actual presence is temporally prevalent in relation to a given unit of time”.
The court, recalling the majority orientation of jurisprudence, therefore rejected the appeal filed by the wife to whom the appellate judges had revoked the allocation of the family home because the son living with her had now moved abroad for a training course as an airline pilot.
By virtue of the time prevalence principle, returns to the family home of the son were to be considered sporadic. Therefore, the raison d’être of the assignment of the family home to the wife had disappeared: the overriding interest of the offspring.
