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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 clauses of the separation agreement which recognize to one or both spouses the exclusive ownership of beautiful furniture or immovable property or which 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, which provides for the commitment of the spouses to make real estate transfers subsequent to the homologation decree.

In this case, the court acknowledges it by referring to the minutes with mandatory content between the parties. The act of separation, understood as a bilateral legal transaction, allows that in this agreement there may also be clauses with a patrimonial content, aimed at transferring real estate rights, whose validity depends on the judgment on the merit of the interests pursued attributed by the legislator. The agreement is configured as an atypical contract, worthy of protection by the legal system pursuant to art. 1322 cc, not in contrast with public order and characterized by its own cause identified in the need to implement a regulation of relations, a definition of the reciprocal reasons for giving and taking between the spouses at the end of the cohabitation.

The transfer of a share of immovable property belonging to one of the spouses in favor of the other carried out during the consensual separation cannot in itself be considered free of charge. The aforementioned operation, in fact, far from constituting an act of mere donation, represents the implementation of a specific program aimed at defining both previous positions and obligations directly arising from the marital separation, the liquidation of which - once and for all - is specifically permitted.

In the context of their autonomous and discretionary determination, the spouses can subordinate the separation agreement to the definitive allocation of movable or immovable property, or of cash capital in replacement or integration of the maintenance allowance, to the establishment of a real right of dwelling or usufruct, to the assignment of the dwelling house in favor of the weaker spouse, to the promise of setting up a patrimonial fund to meet the life needs of the separated spouse. In this way, the maintenance obligation can be satisfied, as well as with the payment of a periodic check of money, even in whole or in part through a one-off economic settlement of the property relations between spouses resulting from the separation.

Even the obligation to maintain minor children, or non self-sufficient adults, can be fulfilled by the parents during the personal separation through an agreement which, instead of through a periodic patrimonial benefit, or in concurrence with it, assigns or undertakes to assign them to children the ownership of movable or immovable property. This agreement does not make a donation as it fulfills a solving-compensatory function of the maintenance obligation and constitutes application of the principle of the freedom of the subjects to pursue interests worthy of protection with the contractual instrument according to the legal system.

The agreement, implemented and conditioned by the separation measure, is not limited in this case to determining the concrete modalities of the periodic maintenance service, but involves the immediate and definitive acquisition to the children's assets of the ownership of the assets that the parents, or the parent, have attributed to them or have undertaken to attribute.


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