With a recent ruling, the Supreme Court (Cass. sent. n. 789 of the 13.01.2017) has established that the ex-wife who has the skills and the preparation to allow her to work can not continue to live behind her ex-husband, so it is the latter's right not to pay her the maintenance allowance. According to the Court, only those women who have lost, before separation, every potential earning capacity can demand a monthly allowance (this is the case of a forty-year-old housewife who does not have specific training), while the others must try to stay on their own.
If the woman works - or can work and voluntarily does not - the subsequent income (actual or potential) can be assessed by the judge to reduce or completely cancel her right to maintenance. In fact, the monthly allowance is to balance the economic conditions of former spouses even after separation. So if the salary of the former wife allows her to have the same standard of life as her husband then she can not claim maintenance or at least will be able to benefit from a lower maintenance.
The problem does not arise when the woman has her own salary or, as an autonomous person, has a tax return: the numerical figure of what has been earned is evident and does not often require further investigation.
Instead, doubts arise when the woman is unemployed. The point on which the Court refers is the one relating to the reasons for the failure to find a work placement. In these cases, the Supreme Court distinguishes cases in which this is due to an inability of the woman to have done so far, other tasks such as housewife and, therefore, for not being able to cultivate their own "training at work", instead of cases in which the state of unemployment depends on one's attitude, as when looking for an ideal working position, suited to its ambitions, it does not work.
The Cassation states that: "the aptitude for the profitable work of the ex-wife, as a potential for gain, constitutes an element that can be assessed for determining the extent of the maintenance allowance by the judge, who must take into account not only the income in money, but also of any usefulness or ability of spouses susceptible of economic evaluation "and" The attitude of the spouse to work assumes in this case only if it is found in terms of the actual possibility of carrying out a paid work activity, in consideration of every concrete individual and environmental factor, and not just mere abstract and hypothetical evaluations »
In short: what matters is not so much how much the former wife earns but her concrete and specific chances of earning, regardless of not having found her own work placement.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.