The calculation of the divorce allowance and the rights of former spouses after the divorce.
The United Sections of the Court of Cassation with the Judgment N. 18287 issued the 10 April and deposited the 11 July 2018 have given new tools for assigning the determination of the divorce.
According to the new interpretation of the Supreme Court, in order to calculate the divorce allowance referred to in Article 5 of L. 1 December 1970, n. 898, it is necessary to take into consideration not the standard of living, but different factors, through a so-called "composite" criterion that, in light of the comparative assessment of the respective economic-patrimonial conditions, gives particular importance to the contribution provided by the former spouse to the training of the common and personal patrimony, in relation to the duration of the marriage, to the future profit potentials and to the age of the entitled person.
The United Sections thus agreed with the new course of the First Section in the sense of confirming the overcoming the concept of "standard of living" as the main criterion for the recognition of the divorce allowance, then formulating a very important integration in order to the specification of the "criterion of reference" to be kept in mind for the recognition and for the determination of the divorce.
Recall that with the Grilli (11504 / 17) the Supreme Court had identified in theself-sufficiency of the applicant the point of fall of the claim of the divorce agreement: where the applicant was self-sufficient (and to be so it was enough a job and a house) the request for a contribution to the other spouse could not find any foundation, applying the principle of comparison in being for the determination of autonomy (and therefore self-sufficiency) of adult children, reached which, the right of the same to be maintained ceases.
The United Sections considered this recall to be inapplicable, both for the peculiarity of the filial relationship compared to the conjugal relationship, and because it is obviously different from the burden of autonomy that weighs on the shoulders of each child compared to what can be referred to a former spouse.
On this point, it seems decisive and significant to recall an essential passage of the sentence where we read that the standard of family life (especially if potential) and autonomy or economic independence (also in the new version of the economic self-sufficiency introduced by the 11504 / 17 ruling) they are exposed to the risk of abstraction and of the defect of the connection with the effectiveness of married life. So that the reference to current affairs, warned by the Lamorgese judgment, according to the valorisation of the self-responsibility of each of the ex-spouses, the pre-eminence of the balancing-equalizing function, the divorce.
The Ermellini specify that the assessment of the judge is not a consequence of a nonexistent ultractiveness of the marriage union, but is a consequence of the norm regulating the right to the allowance that «it gives importance to the choices and roles on the basis of which the conjugal relationship and family life have been set. The judge of merit must ascertain whether the condition of economic imbalance is due, as a cause and effect, to common choices and roles within family life, bearing in mind that "the balancing function of the allowance is not aimed at reconstitution of the endoconijugal standard of living but, only, to the recognition of the role and the contribution given by the weaker ex, to the realization of the current comparative situation ".
According to the Court of Cassation, the contribution made to the conduct of family life is the result of joint decisions by both spouses, free and responsible, which can also deeply affect the economic profile of each of them after the end of the marriage. The divorce allowance, explains the Court, must be given a welfare function and, to the same extent, compensatory and equalizing. The parameter thus indicated is based on the constitutional principles of equal dignity and solidarity that permeate marriage even after the dissolution of the bond.
The standard of living enjoyed during marriage returns to be a parameter on which to quantify the extent of the divorce allowance for the former economically weaker spouse. It is therefore necessary to weigh, for each specific case, how much each member of the couple has contributed to the whole of the family's assets, but not only from a strictly financial point of view; and consider that «the contribution made to the conduct of family life is the result of common decisions by both spouses, free and responsible, which can also have a profound impact on the economic profile of each of them after the end of the marriage».
One of the spouses can, for example, choose, in agreement with the other, not to work to dedicate himself to his children, thus relieving the household of some items of expenditure and at the same time allowing the partner to continue to earn and make a career: in these cases we must take into account that the division of roles was the result of a shared decision and the amount of the grant must therefore be based on constitutional principles of equal dignity and solidarity, which permeate union even after the dissolution of the bond.
The principle of "self-responsibility" introduced last May by the Grilli ruling and now outdated, however, provided that, in history, the partners were considered as single, regardless of past existence.
Not all divorces, however, are the same: the judge and even before the lawyers must evaluate the amount of the amount that can vary substantially depending on the particular circumstances of each situation.
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