Separation and divorce checks: can now be returned
The United Sections of the Cassation, with ruling no. 32914 published on 8/11/2022 have established the principle according to which the separation and/or divorce allowance paid to the former spouse can be reclaimed, "ab initio", therefore if paid it must be returned, if there are no the conditions for obtaining the right to maintenance, such as the "state of need" or the charge.
The Court started from the assumption that the Italian legal system does not provide for "a provision which, on a substantive level, sanctions the unrepeatability of the check, properly maintenance, provisionally disposed in favor of the maintenance" and not even with regard to the economic contributions arranged with the presidential measures, "it would not be a question of sanctioning the obligation to repay what was received strictly as food, but of repaying sums of money on the basis of a supposed and non-existent right to maintenance".
The United Sections at the request of the First Civil Section of the Cassation have clarified that, without prejudice to "a personalized assessment" by the judge of merit and also considering "the personal and social situation of the weak spouse, the reasonable expectations of standard of living generated by the marriage relationship or of non-economic self-sufficiency", it is necessary to distinguish whether or not the "conditio indebiti" applies, i.e. the general rule of the full repeatability of the economic services already provided where the non-existence "ab origine" of the conditions for the maintenance or divorce allowance, or if the benefit is to be considered unrepeatable, where a downward revaluation or remodulation has taken place - provided always in relation to modest sums - in the light of the post-family solidarity principle as presumptively consumed for the needs of the economically weaker subject. Outside of this second hypothesis, in the presence of a modification with ex tunc effect, of the economic provisions between spouses or former spouses, the general rule of "repeatability" operates.
This is a completely innovative sentence since previously maintenance checks were considered non-returnable.
This pronouncement thus gives way to the possibility for those who have paid, perhaps for years, a check to those who had no right to recover the sums paid.
Armando Cecatiello Family Lawyer Milan