Maintenance What happens between the filing of the appeal for separation and the taking of interim measures by the President? Who pays? How to apply for arrears?

Maintenance What happens between the filing of the appeal for separation and the taking of interim measures by the President? Who pays? How to apply for arrears?

Maintenance is an obligation that can arise from both judicial and consensual separation but more and more often the problem arises of identifying the day from which to calculate the sums to be paid in this capacity.

With regard to the judicial separation, the jurisprudence, after a long debate, has come to the conclusion that the payment must take effect  not from the date of the sentence declaring the spouses separated  but from the moment of the judicial request (see, ex multis, Civil Cassation, section VI, Ord., July 3, 2013, no. 16671; Civil Cassation, section I, judgment February 3, 2017, no. 2960; Civil Cassation, section VI, ord. February 5, 2018, n. 2687).

For the consensual separation - where the alternative arose between the effective date from the publication of the approval provision by the Court and the retroaction at the time of filing the joint appeal,  only recently has jurisprudence expressed itself on the subject, adopting the same solution valid for judicial separation. 

The effect of the maintenance allowance starts from the filing of the joint appeal (see Civil Cassation, section III, ruling 22 December 2021, no. 41232).

The agreement  of the spouses becomes effective with the approval of the judge e  this provision allows the agreement to produce its own effects which, however, run, unless otherwise provided, already from the filing of the joint appeal, since this is the moment that makes definitive the manifestation of will of the spouses and the evaluation that they make in relation to the compliance of the agreements with their interests.

Both the sentence and the homologation decree - when it regulates the substantial relationships between the parties and indicates the rights and obligations arising from the separation - can be directly enforced as executive titles (Article 474, paragraph 2, n. 1, cpc). 

A  for this purpose, in the event of spontaneous non-payment, it will be necessary, in the first place, to notify (together with the enforceable title) an injunction (art. 480 of the Italian Civil Code) which is the initial act of the enforcement procedure. 

It is understood that it is always advisable to have such notification preceded by an out-of-court formal notice in order to verify the debtor's willingness to perform spontaneously.

Lawyer Armando Cecatiello Milan familiarist in Milan and Lugano