Violations of family care obligations pursuant to articles 570 and 570 bis of the criminal code.
Article. 143 of the civil code places the duty of moral and material assistance on both spouses or cohabiting partners “With marriage, the husband and wife acquire the same rights and assume the same duties. From marriage derives the mutual obligation to be faithful, to moral and material assistance, to collaboration in the interest of the family and to cohabitation. Both spouses are required, each in relation to their own substances and their professional or homework capacity, to contribute to the needs of the family ".
Tale "Statutory" premise appears necessary and necessary when we are preparing to deal with the criminal offenses sanctioned by art. 570 and 570 bis of the penal code, rubricate "Violation of family care obligations" and "violation of family care obligations in the event of separation or dissolution of the marriage".
The rules in question aim to protect the economic and welfare needs of family members in the event of non-fulfillment of the person legally obliged to pay them.
Ratio the primary aim is of course to ensure coercive remedies aimed at guaranteeing the beneficiaries, spouse and children, the timely and periodic availability of the sums necessary for their sustenance, in order to avoid consequential prejudice for them.
According to the provisions of art. 570 of the Italian Criminal Code, modified by Legislative Decree No. 154/2013, "Anyone who abandons their home (1), or in any case keeping a conduct contrary to the order or morality of families, evades the assistance obligations inherent in parental responsibility, legal protection or the quality of spouse (2), is punished with imprisonment of up to one year or with a fine from 103 euros to 1032 euros.
These penalties also apply to those who lack the means of subsistence (3) to descendants of minor age, or incapacitated for work, to ascendants or to their spouse, who is not legally separated due to his fault or to those who wrong (4) or expands the assets of the minor child or spouse.
The offense is punishable by a complaint from the offended person except in the cases provided for by number 1 (it wipes out the assets of the minor child or spouse) and, when the crime is committed against the minor child, by number 2 of the previous paragraph "
Some preliminary clarifications:
(1) The home is understood here in a larger size than that envisaged by the civil code, as it is identified with the usual seat of the family unit.
(2) The prevailing doctrine holds that the norm refers to a series of necessarily juridical obligations and, therefore not moral or religious, which find their source in the civil code. The jurisprudence for its part considers that the reference made is to cases of incestation that did not cause a public scandal, concubinage, adultery, and that is those facts which, even if immoral, do not constitute a crime "a container capable of understanding any active or omissive behavior of the team, of discipline, profitable activity, prosperity, security, peace, tranquility, honor, dignity, solidarity, or good morals of the family "(Manzini, Treaty of law Italian criminal law, Nuvolone and Pisapia, VII Turin 1984, 863).
(3) Referring the means of subsistence to a broader concept of food alone, it is therefore required by the law that the beneficiary goes into a state of need for which he does not have the necessary to live.
(4) The embezzlement takes the form of a series of acts involving the appropriation of the goods of others (a single episode would instead be punished pursuant to art. 649 of the Italian Criminal Code)
It goes without saying that you are in front of the CDs. own offenses, as they can only be committed by a member of the family in charge of which, as we have already said, there are obligations of family assistance.
Such conduct, articles 570 and 570bis, have as common denominator the need to protect the interest of a subject to be assisted by their family members, both from an economic and physical / moral point of view, diverging only on the circumstances of their realization (pre or in constant marriage, in separation or divorce phase)
Although the preparation of these rules has had the great merit of bringing greater safeguards and penal guarantees to events hitherto inherent only to family law, their typing, so generic, has given space over the years to broad and discretionary interpretations such to determine an overlap between typical behaviors and their execution methods. Talk about "Conduct contrary to the order", "assistance obligations" or "Means of subsistence" without having provided for their clear and precise listing, it has caused many interpretative problems.
Initially, the Legislator had foreseen only the case of the violation of family assistance obligations pursuant to art. 570 of the Italian Criminal Code, but through the legislative decree n.21 / 2018, in force since April 6, 2018, with a broader view of extending the protections and conduct, art. 570 bis, autonomous, regarding the applicability of penal sanctions to the spouse who escapes, with any conduct, from the obligation to pay any type of check due in the event of separation, dissolution, termination of civil effects or nullity of marriage.
The crime of failure to pay the periodic allowance for the upkeep, education and education of children, provided for by art. 570 bis of the Italian Criminal Code is also configurable in the event of a breach of the obligations of a patrimonial nature established with respect to minor children born to parents who are not tied by a marriage bond, as there is regulatory continuity between the new provision and the case already governed by art. 3 of the law 8 February 2006. n.54. Although in a non-literary way it will not escape the reader's attention that this rule recalls the crimes previously governed by art. 12 e by law 1 December 1970 n.898 and by art.3 of law 8 February 2006 n.54, provisions that have been expressly repealed by art. 7, lett. b) and d) Legislative Decree no. 21 of 2018.
In case of separation, consensual or judicial, indeed, precisely because the marriage cannot be said to be completely dissolved or the civil effects have ceased, it arises, in accordance with art. 156 cc, the obligation for the spouse, economically more stable, to provide for the maintenance of the other "If he does not have adequate income of his own".
Of course, even in the case of divorce, once the civil effects of the marriage have ceased, the law provides that a form of protection, in the event of specific hypotheses, can however be recognized through a divorce allowance, with the mere aim of providing assistance to the spouse "weak".
It should be pointed out that for the recognition of this financial support it must be demonstrated the objective necessity as well as the unavailability of adjusting economic means.
We also recall, regarding the quantification of this check, that with the judgment n.11504 / 2017 the Court of Cassation definitively abandons as a parameter the "standard of living" arguing that the requesting spouse, being no longer part of an emotional / matrimonial relationship, is naturally subject to a change, economically and morally appreciable.
Therefore the judge will have to verify primarily the independence or economic self-sufficiency of ex spouse requesting the maintenance and, therefore, possession of income, assets, capacity and effective job opportunities; if these conditions exist, the enjoyment of any allowance cannot be recognized.
NB with a very recent ruling, in stark contrast to what has been stated several times over the years, the Court of Cassation with order n.30638 of 25 November 2019 stated that it is not relevant for the recognition of the divorce allowance referred to in article 5 of the Divorce Law, the fact that the ex-wife has work experience, has refused job offers and has property available.
However, it should be reiterated that the provision as a parameter for the quantum, the standard of living concerns only the divorce allowance and not also the separation allowance; this in consideration of the fact, as clarified by the Supreme Court with the judgment 12196/2017 that the separation, unlike the divorce, presupposes the "Permanence of the marital bond" and it is therefore impossible to apply the same principles of quantification of the check.
Article. 570 of the Italian Criminal Code, in its complex structure, governs the various material and moral functions of the family, ensuring compliance with the welfare duties, in such a way as to ensure the conduct of a healthy and orderly family life "The scandal of those who maliciously make themselves extraneous to their family, of which by natural law, even before civil law, they must feel and assume all responsibility" (Leone, The violation of family care obligations in the new penal code, cit.).
Even the provision of forfeiture of parental responsibility even if it makes the i "Powers" of the fallen parent, does not raise the same from duties, both economic and moral, that are not incompatible with the reasons that gave cause to the measure itself.
It is interesting to note that even the lack of means of subsistence to the partner who is united civilly, also in the face of Legislative Decree 6/2017, complements the details of the rat de quo. However, it remains controversial whether the rule also applies to de facto cohabitations. Indeed, the literal data and the absence of any normative reference, seems to exclude this possibility.
The evolution, in fact, made over the years to the concept of family has naturally produced new needs and required the preparation of new protections, to the point of affecting the evolution of the interpretation of the norm de qua.
Just to name a few:
- Introduction of the new civil code in 1942
- Entry into force of the Constitutional Charter in 1948
- The family law reform in 1975
- The reform by law n.54 / 2006
- The entry into force of Law No. 76/2016 (so-called Cirinnà Law)
It is also good to reiterate as definitively clarified by Law 76/2016, whose implementing decree n.6 of 19.01.2016 introduced the "Establishment of a civil union for the purposes of criminal law" the term marriage also refers to the establishment of a civil union between people of the same sex. Therefore, in light of the above, the criminal offense referred to in art. 570 of the Criminal Code is also configured in the home of civilly united subjects.
The legislative reform, therefore, has brought about a radical change in the way of conceiving the family and, in this context, even cohabitation is no longer one of the fundamental aspects of married life.
In this situation, the removal from the home takes on legal significance only when it is the clear and evident manifestation of the will to end that typical family union or the removal has come in the absence of a just cause (1)
Further information needed:
(1) What is meant by just cause?
The jurisprudence has considered the existence of a just cause if there are "reasons of an interpersonal nature between the spouses who do not allow the continuation of life in common" or when the behavior of a spouse, which is not the fruit of the other's conduct, renders impossible, intolerable or extremely dangerous the continuation of coexistence.
It therefore appears evident that the judge's task cannot end in ascertaining the historical fact of abandonment alone, but includes the unavoidable reconstruction of the concrete context in which it occurred.
Returning to the second method by which the crime of violation of the obligations of family assistance or the embezzlement or dilapidation of the assets of the child or those of the spouse can be integrated, this case is autonomous, compared to the other three, and appears rather to integrate a hypothesis of crime against property.
Precisely on this point a part of the doctrine has traced in the norm a derogation from what loan from art. 649 of the Criminal Code "Not punishment and lawsuit of the offended person, for facts committed to the detriment of relatives".
The doctrine in question also identifies which ratio of this derogation, the civil law principle which entrusted the so-called "head of the family" with the exclusive administration of the spouse's dotal assets, those in communion and those of the younger son.
It is necessary to underline how, with good reason, the reform of family law has made the exclusive administration regime of the father disappear and has introduced the principle according to which both parents have the function of representation to administration to be exercised, depending on the cases, jointly or separately.
Last hypothesis foreseen by art. 570 of the Criminal Code is that relating to the violation of the obligation to lend the so-called livelihoods to descendants of a minor age, i.e. unable to work, to ascendants or to a spouse, who is not legally separated due to fault.
This hypothesis is certainly the most frequent that occurs in judicial practice.
The forecast immediately poses the problem of the difference between means of subsistence and the maintenance of civil memory.
The jurisprudence has repeatedly specified that by "means of subsistence" it is meant what it is strictly indispensable to the existence, regardless of the social or previous life conditions of those entitled, such as food, housing, the fees for essential utilities, medicines, expenses for the education of children, clothing.
The crime de quo, in fact, it does not assume a purely sanctioning nature of the provision of the civil judge or it is not the necessary and immediate consequence of the non-compliance of the same, having to ascertain the concurrent existence of specific circumstances:
- That those entitled to the maintenance allowance are in need (1)
- That the obliged is aware of it
- That the obliged person is able to provide the means of subsistence (Criminal Cassation, Section VI, sentence no. 8 of 2016 January 535 "And indeed, the crime provided for by art. 570, second paragraph n.2 of the Italian Criminal Code, requires the existence of a maintenance obligation pursuant to the civil code, but does not assume a merely sanctioning nature of the provision of the civil judge in the sense that non-compliance, even partial, of this automatically the occurrence of the offense, so that, in order to configure the criminal offense under consideration, it is necessary that having entitlements to the maintenance allowance go into a state of need, that the obliged person is aware of it and that the same is unable to provide the livelihoods ". (The obligation of assistance incumbent on the parent is less temporarily, only in the case of innocent and temporary economic difficulty, which determines a situation of unavailability of sufficient income to satisfy, in an adequate and appropriate manner, the vital needs of the children and spouse separate).
NB in such cases, the parent who is unable to cover the maintenance allowance must be acquitted if he provides proof of the aforementioned situation of poverty. In any case, the fact that the parent gives gifts to the children or makes occasional payments is not sufficient to avoid criminal liability. "The modest donations in money paid directly to the minor cannot be taken into account in any way. not to the custodial parent, since there is no guarantee as to the actual destination of these sums to the essential needs of the minor; let alone take into account gifts in kind that are not intended to satisfy these needs ".
(1) However, it should be noted that in some judgments, however, it was considered that, for the existence of the crime, it is possible to disregard the assessment of the child's need status as the minor age of the recipients of the means of subsistence represents re ipsa subjective condition of the state of need, with the consequent obligation for the parent to contribute to their maintenance.
In particular, we can read in sentence no. 38127/2009 “With regard to the alleged lack of evidence of the material element of the crime, represented by the state of need of the offended persons (separated wife and three children), the appellant's notation is merely assertive and unfounded evidence. In this regard, it is easy to consider - in the first place - that no incidence can be recognized in the data for which the (..) and the daughters were supported in meeting their primary life needs by the woman's family members and by public providence, given that - as clarified by this regulatory Court - in the matter of violation of the obligations of family assistance, the state of need and the obligation to contribute to the maintenance, at least of minor children, do not cease, if those entitled receive financial assistance from third parties " .
Note that the proof of this impossibility lies with the obliged person and cannot be considered satisfied with the mere documentation of the formal state of unemployed.
Even the Supreme Court reiterated the consolidated principles that were expressed in this regard of the jurisprudence of legitimacy according to which the economic incapacity of the obliged person consists in the impossibility to face the fulfilments sanctioned by the art. 570 of the criminal code
Such an inability must be absolute or to integrate a situation of persistent, objective and innocent unavailability of income.
As regards the subjective element of the crime of violation of the obligations of family assistance, traditional doctrine considers that the existence of the dolo, or the free and conscious will to make the needy person lack the means of subsistence, thus excluding, consequently, the punishment of the crime by way of willful misconduct or fault.
This, of course, does not exclude the possibility of considering the conduct of failure to provide the means of assistance punishable also by way of willful misconduct, if it is shown that the active subject of the crime has foreseen that, through his negligent behavior, he would have means of subsistence to the entitled persons and, however, na has accepted the risk.
As regards the place where this default of the contributory obligation pursuant to art. 570 of the Italian Criminal Code, the Supreme Court of Cassation has identified him as that of residence of the entitled person.
With regard to the terms for filing the lawsuit, pursuant to art. 124, paragraph 1, of the Italian Criminal Code "From the day of the news of the fact that it constitutes an offense, for this having to be understood the certain knowledge that the constitutive requirements of the offense have occurred in the manner that the offended person has had the notion of all the elements necessary to propose foundations punishment list"
With particular reference to the case, the deadline for filing a lawsuit starts from the moment in which the offended person has ascertained the persistent non-fulfillment of the subject required to provide the service, as a clear indication, in the absence of the indication of reasons for justifications, of the violence of the obligation. by law "
Please note, failure to fulfill the obligation to pay the maintenance allowance established by the judge in favor of economically non-autonomous children is an automatically punishable offense of a permanent nature, the consummation of which ends with the full fulfillment of the obligation or with the date of resolution of the sentence of first instance, when it expressly emerges from the judgment that the omission continued even after the issuance of the summons for judgment (Court of Cassation - Sixth Criminal Section of 4 September 2019 n.37090)
In the final analysis, the question arose whether the two rules pursuant to art. 570 and 570 of the criminal code can compete.
It should be emphasized from the outset that these behaviors, although they may refer to the same historical fact in the abstract, identifiable in the non-custodial parent's failure to fulfill economic obligations, have specialized elements that do not allow a so-called to be recognized among them. Criminal progression
The Court of Cassation also reaches this solution and, in a recent ruling, has developed a further argument. According to this decision, the obligations from which the two different types of crime derive would have a different source, since the obligation to contribute to the maintenance of children, protected by art. 570 of the Italian Criminal Code, would be based directly on marriage, while the obligation to pay the check, protected by art. 12 e by law n.898 of 1970 and now by art. 570 bis of the Italian Criminal Code, is based on the provision of the civil judge who pronounces the divorce.
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