"If it is established that the spouse is economically independent or actually capable of being so, this right must not be recognized."
It is a few months that the rulings of merit and the address of the family sections, including the Court of Milan, are going towards a change in the concept of a divorce allowance. At Lawyer's for months I have the conviction that a decisive change is in the air, in Milan it was almost certain.
Now with the new ruling of the Supreme Court, 11504/2017, there has even been a real alarm on the fate of the divorce allowance.
The obligated, in the majority the ex-husbands exult and call the studio to obtain the revocation of the check, the beneficiaries, in most cases the ex-wives, want an appointment to understand the situation and cope with a feared disaster cheap.
The situation must not be radicalized, it is always necessary to verify the applicability, case by case, even of the new parameters, so we spend hours on the phone with customers and in the meeting room.
What is certain is that the Supreme Court gave rise to a real change of course on the divorce allowance that for over 30 years was calculated on the standard of married life.
The Court of Cassation now speaks of a parity parameter based on the assessment of the independence or economic self-sufficiency of the former spouse who requires it.
The Court has ruled that marriage is no longer the final arrangement because getting married, textually write ermines, is an act of freedom and self-responsibility. The Court adds that the times have now changed and the patrimonialistic conception of marriage must be overcome. It must therefore be held - affirms the Court of Cassation - that a legally relevant or protected interest of the former spouse can not be configured to preserve the standard of married life.
According to this very recent orientation with divorce, the marriage relationship is extinguished not only on a personal level but also on an economic-patrimonial level, so that any reference to this relationship illegitimately ends up by restoring it, albeit limited to the economic dimension of the standard of married life in an undue perspective. of ultractivity of the marriage bond. Thus, according to the Court, a different parameter must be identified in the achievement of the economic independence of the person requesting the divorce allowance: "If it is established that the spouse is economically independent or actually capable of being so, this right must not be recognized ".
The main indicators that the Supreme Court identifies for assessing the economic independence of the former spouse are the possession of income and property and real estate assets, the actual capacities and possibilities of personal work and the stable availability of a home.
It is therefore a profound change in jurisprudence which, on closer inspection, is in line with that of other European countries. The situation in the Anglo-Saxon countries is very different for the well-known institute of the Assets division.
In extreme synthesis the Court of Cassation has established with the sentence n. 11504 / 17 that the maintenance is not to be recognized to those who are economically independent, that is, has income, assets and real estate, capacity and actual possibilities for personal work and the stable availability of a home.
Now you will have the race to file the changes in the divorce conditions.
Armando Cecatiello, Lawyer Milan.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.