Divorce and separation: the criterion to be checked for the award of maintenance is autonomy and not the standard of living
Thus, the Italian Supreme Court (Cassazione) in the judgment. 11504/17: “Support for divorce should not be given to those who are economically independent. In other words, to those who have incomes, assets, the real ability and opportunity to work and the stable availability of a home.”
The Supreme Court establishes new standards for divorce verification: The criterion of independence or economic autonomy, and not the standard of living that they enjoyed during marriage, were to be used to award spousal support to whom needs it. Marriage ceases to be “a definitive economic arrangement”: to marry, says the Court, it is an “act of freedom and personal responsibility”.
The Supreme Court rendered Judgment 11504, concerning a divorce between a former minister and an entrepreneur. The Supreme Court ruled that depriving the ex-wife of the former minister of the right to maintenance does not depend on the fact that she is supposed to have a sufficient income but on the fact that now times have changed and we must “go beyond the heritage concept of marriage understood as a final arrangement”. Indeed, “marriage” is now widely shared in social behavior as an act of personal freedom and responsibility, as well as a place of affection and communion of life, as such dissolvable. It must therefore be considered – concludes the Supreme Court – that there is no protected configurable legal interest of the former spouse to maintain the standard of living that he/she had during the marriage “.
The Supreme Court has surpassed the previous consolidated jurisprudence, stating the independence and economic autonomy of the ex-partner who needs it as a parameter of the alimony. The Court has ruled that the standard of living that spouses enjoy during marriage is no longer a criterion to determinate the allowance of spousal support . “If it is determined – as can be read in the judgment – that the applicant is financially independent or can be so, that right must not be recognized . This judgment is against a principle enshrined in 1970 by Law 898, which introduced the divorce in Italy. So this earthquake is a case law approach consistent with the guidelines of other European countries, where allowance of the alimony in case of divorce depends essentially on pacts before marriage.