DIVORCE ALLOWANCE: what happens if the obligee's income worsens? Can you stop paying?

For the Cassation, with the recent sentence 6386 / 2019 and in the light of the recent ruling by the United Sections, the divorce allowance is void if the conditions of the ex-spouse worsen and the other is able to support himself independently.

The Court of Cassation with a sentence of the first civil section clarified that the contribution is no longer due to the weak spouse if the conditions of the person charged worsen, while the other is able to maintain himself independently.

In the case in question, the Court had ordered the termination of the ex-husband's obligation to pay the divorce allowance to his wife since the man's income situation had changed after retirement, reducing his income.

The Court of Appeal held that the contingencies legitimizing the review of the economic conditions between the former spouses had occurred, due to the husband's supervening retirement.

The Supreme Court reaffirmed the provisions of the United Sections (sentence no.18287 / 2018) according to which the recognition of the divorce allowance in favor of the former spouse, who must be assigned a welfare function and in equal compensation and equalization measure, requires the '' assessment of the inadequacy of the means of the former spouse, and the impossibility of obtaining them for objective reasons.

According to the Court of Cassation, the judgment must be expressed, in particular, in the light of a comparative assessment of the economic and financial conditions of the parties, in consideration of the contribution provided by the applicant to the conduct of family life and to the formation of the common assets, as well as that of each of the former spouses in relation to the duration of the marriage and the age of the entitled person. The income balancing function of the former spouses, also assigned by the legislator to the divorce allowance, is not aimed at restoring the standard of living they had during marriage, but at recognizing the role and contribution provided by the economically weaker ex spouse to the formation of the family and personal assets of the former spouses.

In the present case, the Court of Appeal had correctly considered the conditions for the cessation of the obligation to pay an allowance, essentially of a charitable nature, for maintenance to the former spouse, as a reduction in the income capacity of the obligated spouse had occurred, consequent to his retirement (see Cass. 8754/2011; Cass. 17030/2014).

It should also be noted that the wife was completely self-sufficient economically, as the holder of an average monthly income of € 3.000,00, with the elimination of the gap that in the past had justified the attribution of the divorce allowance to her.

This sentence also opens up the possibility for those who are paying a totally non-current divorce allowance and contrary to the recent principles expressed by the Court of Cassation, to request a revision of the same or even the elimination.