If the ex is living with someone else, is it possible to ask for the divorce allowance to be revoked?
If the ex is living with someone else, is it possible to ask for the divorce allowance to be revoked?
The Court of Cassation recently heard the case of an ex-husband who requested the revocation of the spousal maintenance payments due to him, following a ruling terminating the civil effects of the marriage.
In support of his request, he reported that his wife had started living with another man.
The request was rejected in the first instance by the Court and subsequently also in the Appeal phase.
The ex-spouse therefore proposed an appeal to the Supreme Court.
In examining the case, the Court of Cassation starts from the concept of cohabitation, emphasizing that it differs from that of cohabitation.
Cohabitation (sanctioned by art. 143, paragraph 2, of the Italian Civil Code) is an obligation regarding marriage, while there is no data in the same sense, with regard to cohabitation more uxorio.
Therefore, the Supreme Court Judges point out that the Territorial Court confused the two concepts, thus reaching incorrect conclusions.
The same Court of Cassation had previously stated that: "cohabitation more uxorio must be understood as a stable and lasting emotional bond, by virtue of which the cohabitants have spontaneously and voluntarily assumed mutual commitments of moral and material assistance, without cohabitation can assume the importance of an indispensable requirement for the integration of the legal fact "(Cass. n. 9178/2018, n. 7128/2013).
In light of these considerations, the Court of Cassation upheld the ex-husband's appeal and issued the principle according to which: "in matters relating to the revocation of alimony ordered for the establishment by the beneficiary ex-spouse of a common-law relationship with a third party, the judge must proceed to the relevant assessment taking into account, as evidence, any cohabitation between them, in any case evaluating not atomistically but as a whole the set of known secondary facts, acquired at trial in the manner permitted by procedural law, as well as any evidentiary arguments relevant to the inferential judgment regarding the existence of said cohabitation, understood as a stable and lasting emotional bond, by virtue of which the cohabitants have spontaneously and voluntarily assumed mutual commitments of moral and material assistance."
Lawyer Armando Cecatiello Milan familiarist in Milan and Lugano
