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 Joint Sections have thus agreed with the new direction taken by the First Section, confirming the elimination of the concept of "standard of living" as the primary criterion for awarding maintenance, and subsequently formulating a very important addition regarding the specification of the "reference criterion" to be taken into account in the judgment for the awarding and determination of maintenance.
We recall that with the Grilli ruling (11504/17) the Supreme Court had identified the applicant's self-sufficiency as the point of failure for the claim for divorce maintenance: where the applicant was self-sufficient (and to be so a job and a home were sufficient) there could be no basis for the request for a contribution from the other spouse, applying as a comparison principle the one in place for determining the autonomy (and therefore self-sufficiency) of adult children, once reached which, their right to be supported 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 crucial and significant to recall a key passage from the ruling, which states that the standard of family living (especially potential) and economic autonomy or independence (even in the new version of economic self-sufficiency introduced by ruling 11504/17) are exposed to the risk of abstraction and a lack of connection with the reality of married life. Thus, the reference to current events, highlighted by the Lamorgese ruling, in order to enhance the individual responsibility of each former spouse, must therefore focus on the primacy of the balancing-equalizing function of divorce allowance.
The Supreme Court of Cassation clarifies that the judge's finding is not a consequence of the non-existent continued existence of the marital union, but rather a consequence of the law governing the right to maintenance, which " gives importance to the choices and roles on which the marital relationship and family life are based. The trial judge will have to determine whether the economic and patrimonial imbalance is attributable, as a cause and effect, to joint choices and roles within family life, keeping in mind that "the balancing function of maintenance is not aimed at restoring the marital standard of living, but only at recognizing the role and contribution provided by the weaker ex-spouse, in achieving 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 the marriage once again becomes a parameter for quantifying the amount of alimony for the economically weaker former spouse. It is therefore necessary to evaluate, for each specific case, how much each member of the couple contributed to the family's assets, not only from a strictly financial perspective; and to consider that " the contribution made to the management of family life is the result of joint decisions by both spouses, free and responsible, which can also profoundly impact the economic profile of each of them after the end of the marriage ."
For example, one spouse may decide, in agreement with the other, not to work to dedicate themselves to their children, thus relieving the household of certain expenses while simultaneously allowing the partner to continue earning and pursuing a career. In these cases, it must be borne in mind that the division of roles was the result of a shared decision, and the amount of maintenance must therefore be based on the constitutional principles of equal dignity and solidarity, which permeate the union even after the dissolution of the marriage.
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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