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The revision of divorce allowance due to worsening health condition of former spouse [Ord. 19306, 07.07.2023]

Published in: Family
by Lorenzo Franzè
Home > The revision of divorce allowance due to worsening health condition of former spouse [Ord. 19306, 07.07.2023]

A recent Italian Supreme Court ruling gives pause for thought on the conditions for the proper quantification of divorce allowance in a case where the former spouse’s health condition had changed dramatically. In this article:

The worsening health condition of the ex-spouse and its effect on the divorce allowance

Divorce allowance represents a sum of money that one former spouse is obligated to pay to the other following divorce. Its function is multifaceted and may vary according to the specific circumstances of the case.

In the present case, Mrs. B.B., suffering from a serious oncological disease and recognized as 67% disabled, was subjected to a precarious health condition that resulted in severe depression, anxiety and intense headache. This context made her unable to work a full-time job, limiting her to part-time employment and, consequently, reduced pay.

As a result of the divorce, A.A.’s ex-husband was ordered to pay a divorce allowance of €200.00, intended to support Mrs. B.B. This sum had been established with a welfare function by the Genoa Court of Appeals, in Judgment No. 77/2021, thus confirming the rulings of the first instance.

Nevertheless, considering her physical condition and inability to have adequate income, Mrs. B.B. appealed to the Italian Supreme Court against the second instance decision, requesting an adjustment of the divorce allowance. The Italian Supreme Court partially upheld her appeal, sending the case back to the Genoa Court of Appeals for a new assessment on the size of the divorce allowance.

What is the Italian Supreme Court's reasoning on the quantification of divorce allowance?

The Italian Supreme Court analyzed the case in light of Article 5(6) of Law No. 898 of 1970, confirming that the divorce allowance has both a welfare function and an equalization-compensation function. In particular, for the recognition of the divorce allowance, the Court stressed the need to verify the inadequacy of the former spouse’s means and the inability to obtain them for objective reasons.

The welfare function of the divorce allowance provides financial support to the former spouse who is not economically self-sufficient due to special conditions, such as illnesses or disabilities that limit the ability to work. In these cases, the divorce allowance acts in line with the solidaristic principle.

The equalization-compensation function, on the other hand, aims to re-balance the economic situation between the two former spouses following the divorce, taking into account the economic and non-economic contributions each made during the marriage. For example, if one spouse gave up his or her career to support the other’s or to devote himself or herself to the family. The equalization-compensatory function of the divorce allowance, therefore, recognizes the value of this contribution and seeks to compensate for the resulting economic disparity in compensatory terms.

Note that the prevalence of the welfare or equalization-compensatory function varies according to the specific circumstances of the case. However, recent jurisprudential interpretations give preponderance to the welfare function in the presence of specific conditions, such as a concrete economic non-self-sufficiency of the former applicant spouse. This trend underscores the importance of the social function of the divorce allowance in ensuring a dignified existence for the former spouse in economic difficulty.

In any case, it should be further clarified how the recognition of the divorce allowance is not aimed at reconstituting the end-marital standard of living, but rather at recognizing the role and contribution made by the former spouse who is not economically self-sufficient to the constitution of the family and personal assets of the former spouses.

In the specific case of Mrs. B.B., the Italian Supreme Court pointed out how the Genoa Court of Appeals had limited itself to considering the ex-wife’s reduced ability to work due to her illness, without conducting a thorough verification regarding her actual economic non-self-sufficiency. The Italian Supreme Court has, therefore, clarified how the divorce allowance should be given greater prominence to the welfare component, especially in cases where the divorce allowance is intended to make up for the lack of other means to ensure a dignified existence for the former spouse.

The Court, espousing the majority orientation, emphasized that the divorce allowance performs above all a welfare function, “thus enhancing the social function that the divorce allowance fulfills, in cases where it is intended to make up for the deficiencies of different instruments that guarantee a dignified existence to the weak former spouse, in the ‘hypothesis of actual and concrete economic non-self-sufficiency of the applicant (thus Cass. no. 21926/2019 and Cass. no. 18681/2020).” Moreover, the quantification of the divorce allowance, in its welfare component, must be carried out in proportion to the actual need of the petitioning spouse as well as on the basis of the economic conditions of the person who must pay it, as provided for in Article 438 of the Italian Civil Code.

In other words, the divorce allowance in its exclusively welfare component, may be quantified, if due, mainly by following the criteria outlined under Article 438 of the Italian Civil Code, in the terms specified. It will be awarded if the following and competing conditions are met:
(a) the applicant must prove that he or she is in a state of actual and concrete economic non-self-sufficiency, no longer being able to provide for his or her own maintenance;
(b) no alternative means of protection must be available to the applicant spouse;
(c) the former spouse obligated to pay the divorce allowance must be able to financially support the obligation in question and, in the past, must have received or enjoyed significant contributions from the former applicant spouse.

Therefore, the Italian Supreme Court partially upheld the appeal filed by Mrs. B.B., remanding the case to the Genoa Court of Appeals in a different composition. The new trial will have to provide for a more accurate assessment and, possibly, a new determination of the divorce allowance in favor of the applicant.

Impact of Ord. 19306 of 07.07.2023 on the revision of divorce allowance

The Italian Supreme Court, for the purpose of awarding divorce benefits, stresses the importance of considering not only the financial aspect, but also the former spouse’s personal circumstances. The decision shifts the focus from an exclusively pecuniary view to a more inclusive one, which also takes into consideration the individual’s life context.

For law firms specializing in family law, the ruling in commentary offers important insights needed to apply for divorce allowance or its possible revision. Indeed, the direction outlined by the Supreme Court requires lawyers to consider a wide range of factors, including the health status of the parties involved and the impact of marital lifestyle choices on their economic circumstances.

Finally, this decision has a significant impact on society as a whole. It reaffirms the importance of family solidarity and the duty of care between former spouses, recognizing the complexity of post-divorce family situations.

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Publication date: 8 August 2023
Last update: 7 September 2023

Lorenzo Franzè

Active lawyer in the area of civil law, passionate in family law. Graduated with absolute honors and distinction from Università degli Studi del Piemonte Orientale in 2020. Awarded best graduate of the 2019-2020 academic year.
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