During Matrimony: What Relief for Alimony?

Marianna Famà, territory manager of AMI Paola, provides a statement in Court of Cassation No. 20507 of 24 July 2024, on the effect of marriage length on alimony payments.

Another contribution from Paola Bar attorney Marianna Famà, regards the significance of marriage duration in determining alimony. The colleague refers to the United Sections no. 32914/2022 verdict in the First Section of the Court of Cassation’s order of July 24, 2024, no. 20507, between President Maria Acierno and Rel. Laura Tricomi.

Order of the Supreme Court of Cassation, Section I, July 24, 2024, No. 20507

The Court of Cassation, with the order above, clearly and precisely explains under what aspect individuals can also take into consideration to recognize and quantify the maintenance allowance in the case of the personal separation of the spouses. Although true, considering the length of the marriage and the contributor’s assistance
to the formation of the other spouse’s assets are parameters that are taken into care to quantify the divorce allowance and do not serve to exclude the payment of maintenance in the case of separation.

The Case:

The Supreme Court of Cassation was seized with the issue mentioned above following:

• Judicial separation procedures, which resulted in the husband being ordered to pay the wife’s legal bills and being burdened with the responsibility of providing her with a maintenance payment of 3,000.00 euros per month;
• Appeal judgment proposed by the husband, culminating in a rejection ruling and the confirmation of the payment of the maintenance allowance of 3,000.00 euros per month in favor of the appellant party.

More specifically, the territorial court rejected the wife’s separation fault. It upheld the maintenance allowance in her favor due to the significant differences in income between the two parties, including the husband’s sizeable real estate holdings and
other substantial income, compared to the wife’s meager earnings from her photography career.

The Controversy:

In his appeal to the Court of Cassation, the rejected husband cites four grounds, all of which are ruled inadmissible except for the third, which is accepted because the court found it valid.

Given this justification for an appeal, the husband feels that the contested judgment is null because it neglected to consider two historical facts that were crucial to the decision—the applicant’s youth and the short marriage duration—to determine the entitlement and specific amount of the maintenance allowance under Article 156 of the Italian Civil Procedure Code.

The Court of Cassation employs the following logical-legal rationale, accepting only the previously indicated grounds for appeal.

The Court of Appeal’s reasoning was not shared by the Supreme Court of Cassation, which based its decision on the Civil Cassation’s ruling in SS.UU. No. 32914/2022 that “the cessation of cohabitation entails significant changes, but the personal separation between spouses does not extinguish the mutual duty of material assistance, an expression of the broader duty of marital solidarity:

a) the spouse to whom the separation has not been attributed has the right to receive maintenance from the other, if they do not have adequate financial means to maintain the marital standard of living, considering the overall economic situation and the actual work capacity of the applicant, as well as the economic conditions of the obligated party.

b) the spouse who is at fault for the separation, on the other hand, loses the right to maintenance and can only demand the payment of alimony if they are in need.

Therefore, the mutual duty of material assistance, following the personal separation of the spouses, exists, taking into account the assumptions mentioned above.

After making it clear under what conditions maintenance payments are due, it is now required to examine the Supreme Court’s rulings on brief marriages to acknowledge this financial advantage.

Indeed, It was stated that “The duration of the marriage and the contribution made by one spouse to the formation of the other spouse’s assets, or to the common assets, are parameters which are included in the quantification of the divorce alimony, and cannot be used to exclude the entitlement to maintenance alimony in the case of legal separation; however, such elements can be evaluated in this latter case, according to art. 156, second paragraph, of the civil code, to determine the amount of said alimony” (Cass. Civ. No. 20638/2004).

It was also reaffirmed in judgment no. 25618/2007. The factors to be taken into account when calculating the amount of the maintenance allowance include the length of the marriage and the contribution made by one spouse to the development of the other spouse’s assets.

These principles were reaffirmed in decision no. 1622/2017, which made apparent that the short duration of the marriage can’t be viewed as having a preclusive effect on the right to maintenance allowance where the constitutive elements of the right are present (non-attributability of the separation, lack of adequate personal income, i.e., income that does not allow maintaining a standard of living similar to that enjoyed during the marriage, and the existence of an economic disparity between the parties).

Nevertheless, the Court of Cassation goes even further into the details of the matter and, while upholding the previously mentioned arguments, further investigates the issue by taking into account the existence of highly brief marriages and concluding that “…in the case of a particularly short marriage, in which no material and spiritual communion between the spouses has yet been realized at the time of separation, given the lack of shared life and, therefore, the failure to establish a true affective relationship qualifying as ‘affectio coniugalis’, meaning ‘conjugal affection’ where the court will not recognise the alimony.”

The Decision:

In conclusion, the absence of material and spiritual connectivity between the spouses at the time of separation may be grounds for exclusion, even though the brief length of the marriage does not invalidate the right to receive alimony.

Therefore, the Supreme Court of Cassation does not believe the Territorial Court’s reasoning is shareable due to the earlier arguments. The challenged decision did not consider the concise duration of the marriage, either in terms of the entitlement to the allowance or its quantification.

To allow the Court of Appeal of Trieste to reexamine the facts and elements previously obtained in light of the principles mentioned above, the Court of Cassation accepts the third ground of the appeal, reverses the contested ruling, and remands the case to that court in a different composition.

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