Violations of family care obligations pursuant to articles 570 and 570 bis of the criminal code.
Article 143 of the Civil Code imposes on both spouses or cohabitants the duty of moral and material assistance : "With marriage, husband and wife acquire the same rights and assume the same duties. Marriage entails a mutual obligation of fidelity, moral and material assistance, collaboration in the interests of the family, and cohabitation. Both spouses are required, each in relation to their own means and their ability to work, professionally, or at home, to contribute to the needs of the family . "
This "civil" premise appears necessary and appropriate when dealing with the criminally relevant offenses sanctioned by Articles 570 and 570-bis of the Criminal Code, entitled "violation of family support obligations" and "violation of family support obligations in the event of separation or dissolution of 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.
The primary rationale is naturally to ensure coercive remedies aimed at guaranteeing the beneficiaries, spouse and children, the timely and periodic availability of the sums necessary for their support, in order to avoid consequential harm to them.
According to what is established by art. 570 of the Criminal Code, modified by Legislative Decree no. 154/2013, “Whoever abandons the domestic domicile (1), or in any case maintains a conduct contrary to the order or morality of the family, evades the obligations of assistance inherent to parental responsibility, legal guardianship or the status of spouse (2), is punished with imprisonment of up to one year or with a fine from 103 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.
These conducts, articles 570 and 570bis, have as a common denominator the need to protect the interest of a person in being assisted by his or her family members, both from an economic and physical/moral point of view, differing only in the circumstances of their occurrence (before or during marriage, in the separation or divorce phase).
Although the drafting of these provisions had the significant merit of providing greater protection and criminal guarantees to matters that until then had been solely the domain of family law, their very generic characterization has, over the years, given rise to broad and discretionary interpretations, resulting in an overlap between typical conduct and its enforcement methods. Indeed, referring to "conduct contrary to order," "duties of assistance," or "means of subsistence" without providing a clear and precise list has caused numerous interpretative problems.
Initially, the Legislature had only provided for the violation of family support obligations pursuant to Article 570 of the Criminal Code, but Legislative Decree No. 21/2018, effective April 6, 2018, with a view to expanding protections and conduct, introduced an autonomous Article 570-bis, which provides for the applicability of criminal sanctions to a spouse who, through any conduct, evades the obligation to pay any type of maintenance due in the event of separation, dissolution, termination of the civil effects, or nullity of the marriage.
The crime of failure to pay periodic maintenance, education, and instruction for children, as provided for by Article 570-bis of the Criminal Code, can also be committed in the event of a violation of the patrimonial obligations established towards minor children born to parents not bound by marriage, as there is regulatory continuity between the new provision and the crime already regulated by Article 3 of Law No. 54 of February 8, 2006. Even if not in a literary manner, it will not escape the reader's attention that this provision recalls the crimes previously regulated by Article 12- sexies of Law No. 898 of December 1, 1970, and by Article 3 of Law No. 54 of February 8, 2006, provisions that were expressly repealed by Article 7, letters b) and d) of Legislative Decree No. 21 of 2018.
In the event of separation, whether consensual or judicial, precisely because the marriage cannot yet be considered completely dissolved or its civil effects have ceased, pursuant to art. 156 of the Civil Code, the obligation arises for the spouse who is financially more stable to provide for the support of the other "if he or she does not have adequate income of his or her own."
Naturally, even in the event of divorce, once the civil effects of the marriage have ceased, the law provides that a form of protection, in specific circumstances, can be recognized in the form of alimony, for the sole purpose of providing assistance to the "weaker" spouse.
It should be emphasized that in order to receive this financial support, objective necessity and the unavailability of adequate financial resources must be demonstrated.
We also recall that, with regard to the quantification of this allowance, with ruling no. 11504/2017 the Court of Cassation definitively abandoned "standard of living" as a parameter , maintaining that the requesting spouse, no longer being part of an emotional/marital relationship, is naturally subject to a change, both economically and morally appreciable.
Therefore, the Judge will first have to verify the independence or financial self-sufficiency of the former spouse requesting maintenance, and therefore the possession of income, assets, and the ability and actual possibility of working. If these conditions are met, no maintenance will be granted.
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.
It should be reiterated, however, that setting aside the standard of living as a parameter for determining the amount of maintenance applies only to divorce maintenance, not separation maintenance. This is in light of the fact, as clarified by the Supreme Court in ruling 12196/2017, that separation, unlike divorce, presupposes the "permanence of the marital bond," and therefore it is impossible to apply the same principles for quantifying maintenance.
Article 570 of the Criminal Code, in its complex structure, regulates the various material and moral functions of the family, ensuring compliance with caregiving duties, in such a way as to ensure the development of a healthy and orderly family life. "The scandal of those who willfully alienate themselves from their family, for which by natural law, even before civil law, they must feel and assume full responsibility" (Leone, The Violation of Family Care Obligations in the New Criminal Code, cit.).
Even the provision of forfeiture of parental responsibility, although it eliminates the "powers" of the forfeited parent, does not relieve him or her from duties, whether of an economic or moral nature , which are not incompatible with the reasons that gave rise to the provision 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.
Indeed, the evolution brought about over the years by the concept of family has, naturally, produced new needs and required the establishment of new protections, to the point of impacting the evolution of the interpretation of the law in question.
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 important to reiterate that, as definitively clarified by Law 76/2016, whose implementing decree no. 6 of January 19, 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 persons of the same sex. Therefore, in light of the foregoing, the criminal offense under Article 570 of the Criminal Code also applies to persons in a civil union.
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, some scholars have identified in the provision an exception to the provisions of Article 649 of the Criminal Code, "non-punishability and complaint of the injured party for acts committed against relatives."
The doctrine in question also identifies the rationale for this derogation in the civil law principle that entrusted the so-called "head of the family" with the exclusive administration of the spouse's dowry assets, those in joint ownership, and those of the minor child.
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.
The final hypothesis provided for by Article 570 of the Criminal Code concerns the violation of the obligation to provide the so-called means of subsistence to minor descendants, or those unable to work, to ascendants, or to the spouse, unless legally separated through 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.
Case law has repeatedly clarified that "means of subsistence" must be understood as what is strictly essential for existence, regardless of the social or previous living conditions of the beneficiaries, such as food, housing, fees for essential utilities, medicines, expenses for children's education, and clothing.
The crime in question, in fact, does not assume a purely punitive nature of the civil judge's provision or is not the necessary and immediate consequence of non-compliance therewith, since the concurrent existence of specific circumstances must be ascertained:
- 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) It should be highlighted, however, that in some sentences, instead, it was held that, for the existence of the crime, it is possible to disregard the verification of the child's state of need, since the minority of the recipients of the means of subsistence represents in re ipsa a 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 ruling no. 38127/2009 that "with regard to the alleged lack of evidentiary support for the material element of the crime, represented by the state of need of the injured parties (a separated wife and three children), the appellant's observations appear merely assertive and clearly unfounded. In this regard, it is easy to consider – first of all – that no impact can be attributed to the fact that (...) and her daughters were supported in meeting their basic living needs by the woman's family and by public welfare, given that – as clarified by this Court – in matters of violation of family assistance obligations, the state of need and the obligation to contribute to the maintenance, at least of minor children, do not cease when those entitled to it 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 incapacity must be absolute or constitute a situation of persistent, objective and blameless unavailability of income.
Regarding the subjective element of the crime of violating the obligations of family assistance, traditional doctrine considers the existence of intent to be necessary , that is, the free and conscious will to deprive the needy person of the means of subsistence, thus excluding, consequently, the punishability of the crime on the basis of eventual intent or negligence.
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.
Regarding the deadline for filing a complaint, pursuant to Article 124, paragraph 1, of the Criminal Code, the term begins "from the day of knowledge of the fact that constitutes a crime, which must be understood as certain knowledge that the criminal act has met the constitutive requirements, such that the injured party has acquired knowledge of all the elements necessary to propose a specific punishment."
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 reached this conclusion, developing a further argument in a recent ruling. According to this decision, the obligations underlying the two distinct types of crimes have a different source, as the obligation to contribute to child support, protected by Article 570 of the Criminal Code, is based directly on the marriage, while the obligation to pay child support, protected by Article 12- sexies of Law No. 898 of 1970 and now by Article 570-bis of the Criminal Code, is based on the order of the civil judge who grants the divorce.
The Cecatiello Law Firm advises its clients for the best management of criminal and family law procedures.
Cecatiello Law Firm, Milan. Marriage lawyer, divorce lawyer, specialized in family law, child rights, juvenile criminal. Contact us.