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The transfer of property in the separation and divorce proceedings

In the separation and divorce proceedings it is possible to transfer the ownership of the marital home and other properties of the spouses.

In fact, the separation agreement clauses that grant to one or both spouses the exclusive ownership of beautiful furniture or real estate or that transfer it to one of them in order to ensure its maintenance are fully valid.

The clause contained in the request for consensual separation is also valid, with which the spouses are required to make real estate transfers subsequent to the homologation decree.

In this case the court takes note of it by referring to the report with obligatory content between the parties. The act of separation intended as a bilateral legal transaction, allows that in this convention may also be present patrimonial content clauses, aimed at transferring real property rights, whose validity depends on the judgment on the merit of the interests pursued attributed by the legislator. The agreement is an atypical contract, worthy of protection by the legal system pursuant to art. 1322 cc, not in contrast with public order and characterized by a proper cause identified in the need to implement a regulation of relationships, a definition of the mutual reasons for giving and having between the spouses at the end of cohabitation.

The transfer of the share of immovable property pertaining to one of the spouses to the other by the consensual separation can not in itself be considered free of charge. In fact, the aforementioned transaction, far from constituting an act of mere liberality, represents the implementation of a specific program capable of defining both previous positions and obligations directly arising from the marital separation, whose liquidation - one time - is specifically permitted.

In the context of their autonomous and discretionary determination, the spouses may make the separation agreement subject to the definitive assignment of movable or immovable property, or cash capital to replace or supplement the maintenance allowance, to the establishment of a real right to home or usufruct, to the assignment in enjoyment of the dwelling in favor of the weaker spouse, to the promise of the establishment of a patrimonial fund to meet the needs of life of the separated spouse. In this way the maintenance obligation can be satisfied, as well as with the payment of a periodic cash allowance, also in whole or in part through a one-off economic arrangement of the patrimonial relations between spouses resulting from the separation.

Even the obligation to support the minor children, or non self-sufficient adult children, can be fulfilled by the parents during their personal separation through an agreement which, rather than through a periodic financial performance, or in competition with it, assigns or assigns them to assign to the children the ownership of movable or immovable property. This agreement does not make a donation as it performs a solvent-compensatory function of the obligation to maintain and is an application of the principle of freedom of the subjects to pursue interests worthy of protection according to the legal system with the contractual instrument.

The agreement, acknowledged and conditioned by the separation provision, is not limited in this case to determining the concrete modalities of the periodic maintenance provision, but entails the immediate and definitive acquisition of the property of the children of the property that the parents, or the parent, have attributed to them or are committed to attributing.

Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.