The calculation of the divorce allowance and the rights of the former spouses after the divorce.
The United Sections of the Court of Cassation with Sentence No. 18287 issued on 10 April and filed on 11 July 2018 have given new tools for the assignment and determination of the divorce allowance.
According to the new interpretation of the Supreme Court, for the purpose of calculating the divorce allowance referred to in Article 5 of Law no. 1, it is necessary to take into account not the standard of living, but various factors, through a so-called "composite" criterion which, in the light of the comparative assessment of the respective economic and financial conditions, gives particular importance to the contribution provided by the former spouse requesting the training of the common and personal assets, in relation to the duration of the marriage, future income potential and 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 addition in order to specify the "reference criterion" to be taken into account in the judgment for the recognition and determination of the divorce allowance.
We recall how with the Grilli judgment (11504/17) the Supreme Court had identified inself-sufficiency of the applicant the point of fall of the claim for the divorce allowance: where the applicant was self-sufficient (and a job and a house were enough to be so), the request for a contribution from the other spouse could not find any basis, applying the principle of comparison existing for the determination of the autonomy (and therefore self-sufficiency) of adult children, once reached which, their right to be maintained ceases.
The United Sections deemed this reference inapplicable, both due to the peculiarity of the filial relationship compared to the marital one, and because the burden of autonomy that weighs on the shoulders of each child is obviously different from that which 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 economic autonomy or independence (also in the new version of economic self-sufficiency introduced by judgment 11504/17) they are exposed to the risk of abstractness and the lack of connection with the effectiveness of married life. So that the reference to current events, warned by the Lamorgese sentence, according to the enhancement of the self-responsibility of each of the former spouses, must therefore be directed towards the primacy of the balancing-equalization function, of the divorce allowance.
The Ermellini specify that the judge's assessment is not a consequence of a non-existent ultraction of the marriage union, but is a consequence of the regulating norm of the right to allowance which "gives importance to the choices and roles on the basis of which the marital relationship and family life is based. The trial judge will have to ascertain whether the condition of economic patrimonial imbalance is due, as 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 restoring the standard of living within marriage but, only, to the recognition of the role and contribution provided by the weakest ex, to the realization of the current comparative situation ".
According to the Supreme Court, the contribution made to the conduct of family life is the result of joint decisions of both spouses, free and responsible, which can also deeply affect the economic and financial profile of each of them after the end of the marriage union. The divorce allowance, the Court explains, must be assigned a welfare function and, in equal measure, compensatory and equalizing. The parameter thus indicated is based on the constitutional principles of equal dignity and solidarity that permeate the marriage union 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 earning and making a career: in these cases it must be taken into account that the division of roles was the result of a shared decision and the amount of the allowance must therefore be based on constitutional principles of equal dignity and solidarity, which permeate the 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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