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Separation and charge: what happens when cheating is tolerated?

Published in: Family
by Mariasole Trotta
Home > Separation and charge: what happens when cheating is tolerated?

In its Order No. 25966 of 02/09/2022, the Italian Supreme Court intervened on a very controversial and evergreen topic in separation and divorce matters: charging for spousal infidelity.

In this article:

Extramarital affairs and tolerance

The judgment under consideration – Civil Cassation Order No. 25966 of 02/09/2022 – addresses a particular aspect of the institution of the debit, namely, whether any tolerance shown by the spouse to the first betrayal, prevents one from requesting and obtaining the debit of separation?

For an application for a separation charge to be granted, it is necessary for the extramarital affair to be the actual cause of the end of the marital relationship. In case of prolonged tolerance manifested by the betrayed spouse, as a rule, the debit is not granted. Thus, the burden is on the spouse requesting the debit to prove that the cheating represents the cause that actually made cohabitation intolerable.

In the present case, however, the Supreme Court was called upon to address a special situation: the end of the marital relationship was caused more than by a single betrayal (initially tolerated by the husband) by the wife’s repetition of the breach of the duty of fidelity.

The duties that come with marriage

The rules on debit are part of the discipline of rights and duties arising from marriage and are located within Book I, Title VI , Chapter IV of the Italian Civil Code. However, we also find trace of the consequences caused by the debit of separation within Book II – Title I of the General Provisions on Succession.

Undoubtedly the most relevant article is Article 151 paragraph 2 of the Civil Code since it provides that a spouse who has violated marital duties will be “punished” precisely by being charged with the separation. This will result in the loss of the right to maintenance (should he or she have been entitled to it) as well as inheritance rights against the former spouse. In fact, it provides verbatim that: “The judge, in pronouncing the separation, shall declare, if the circumstances exist and he is requested to do so, to which of the spouses the separation is chargeable, in view of his behavior contrary to the duties arising from marriage”.

Compared to the previous institution of “separation by fault” in which all cases in which they could be invoked were enunciated, the pronouncement of the separation charge now presupposes a discretionary evaluation by the judge: said evaluation concerns the overall behavior of the spouses in the conduct of their marital relationship.

Repeated violation of the duty of loyalty

In the case at hand, the claim for debit was made by the husband, who managed to prove that the end of his marriage had been brought about precisely by those repeated betrayals put in place by his wife, despite the fact that he had initially tolerated such behavior.

Indeed, the Supreme Court clarified that: “the appellant had attached and asked to be admitted to prove that the aforementioned relationship had been followed by others, undertaken after the termination of the first one and until the establishment of the separation judgment, thus clearly suggesting that the tolerance he had initially manifested towards his spouse’s conduct had come to an end, due to the latter’s repeated breach of the duty of fidelity, which had determined the failure of the union” (Order No. 25966 of 02/09/2022).

In the judgment under review, the husband’s initial tolerance of his wife’s first betrayal cannot be considered an element that prevents tout court from granting the request for debit. In fact, the plaintiff was able to prove that his initial tolerance had failed precisely because the first extramarital affair had been followed by many others.

This means that the cause of the intolerability of cohabitation was precisely the repeated violation of one of the marital duties: that of fidelity.

The ruling in the present case can be seen as another step forward aimed at clarifying and specifying the situations in which the separation charge should be granted.

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Publication date: 29 September 2022
Last update: 6 January 2023

Mariasole Trotta

Laureata magna cum laude all'Università degli Studi di Roma Tre, Avvocato appassionata di Diritto di famiglia.
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