Divorce allowance and severance pay paid into pension fund: the Court of Cassation raises a question of nomophylactic importance

With interlocutory order no. 8375 of 30 March 2025, the First Civil Section of the Court of Cassation ordered the public hearing of a question of particular nomophylactic relevance: the right of the former spouse, entitled to divorce allowance, to a share of the TFR in the event that the entire amount has been allocated to a supplementary pension fund.

The regulatory context: art. 12-bis of law no. 898/1970

Article 12-bis of the Divorce Law provides that the divorced spouse, entitled to a divorce allowance, is entitled to a portion of the severance pay (TFR) received by the other spouse at the time of termination of the employment relationship. However, the law does not expressly regulate the case in which the TFR has been entirely transferred to a supplementary pension fund.Eutekne+1NT+ Diritto+1

The legal question raised

The Court of Cassation questions whether, in light of the fact that the allocation of the TFR to a pension fund does not change the rights and obligations arising from the employment relationship, the holder of the divorce allowance retains the right to obtain a share of the TFR accrued by the former spouse, even if the latter has transferred the entire amount to a supplementary pension fund. In particular, it is a question of establishing whether this choice entails the exclusion of the right provided for by art. 12-bis of Law no. 898/1970, considering that the former spouse obliged to pay the divorce allowance does not receive any severance pay, but a capital or periodic pension of a social security nature.

The positions of the parties

In this case, the Court of Lodi had sentenced the ex-husband to pay €98.515,00 as a share of the TFR. The Court of Appeal of Milan, however, had reformed the decision, holding that the TFR transferred to the pension fund had a social security and not retributive nature, thus excluding the ex-spouse's right to the share provided for by art. 12-bis.NT+ Diritto+1Il Sole 24 Ore+1

The ex-wife challenged the decision, arguing that the allocation of the TFR to a pension fund should not preclude her right to the share, especially if such transfer occurred shortly before retirement, with potentially evasive purposes.

Practical implications

The final decision of the Court of Cassation will have a significant impact on the case law and on the management of post-divorce patrimonial relations, in particular with regard to the protection of the economically weaker spouse. A ruling that recognizes the right to the TFR share even in the case of transfer to a pension fund would strengthen the compensatory function of the divorce allowance.

Conclusions

Order no. 8375/2025 of the Court of Cassation opens an important legal debate on the nature of the TFR and the rights of the divorced spouse entitled to divorce allowance. While waiting for the final decision, it is advisable for the parties involved in divorce proceedings or review of economic conditions to consult a divorce lawyer experienced in family law to evaluate the specific implications of the case.