Allowance, the new attitude adopted by the Supreme Court (‘Cassazione’), requirements to obtain it

On 23 March 2018, the ‘Cassazione’ passed order n. 7342, that reflects the changed legal attitude as regards the maintenance allowance.

With this ordinance the Supreme Court established the principle according to which the allowance amount should be quantified in part according to how long the marriage lasted.

Let us take a look at this recent legal change. Until February 2017, the consolidated attitude was that the maintenance allowance should be correlated to the evaluation of the adequacy/inadequacy of the spouse’s means to guarantee the same “tenor of life” enjoyed during the marriage.  This constant tenor of life was the central element when assessing the right to an allowance and how much it should be.

In this context, also as a result of the multiple social and cultural changes that have taken place in our times, an important legal change took place with sentence S.C. n. 11504 of 10 May 2017. The sentence introduced an important novelty, instituting two distinct steps:  the first is an evaluation to establish the right to an allowance and if this is positive the second step is to establish the actual sum to be paid.

When evaluating the firts, the tenor of life enjoyed during the marriage is no longer to be considered, but rather the “independence or economic self-sufficiency” of the spouse claiming an allowance.  This will be subject to a true legal investigation to ascertain the claimant’s right to an allowance based on the lack of adequate financial means and “impossibility of procuring them for objective reasons”.  The object of the investigation, therefore, is the economic/patrimonial state of the claimant spouse, taking into account educational level, working experience, possession of real estate, real earning capacity, etc..

In fact, the Supreme Court underlines that with divorce the wedlock ends, from both the personal and the  patrimonial points of view, the only bond remaining being the rights and duties of both spouses towards their children.

Following this sentence, the ‘Cassazione’ established that the allowance will not be due simply to guarantee the tenor of life enjoyed during the marriage that the spouse cannot maintain alone, but will only be granted if the claimant spouse is unable, for objective reasons, to ensure economic independence/self-sufficiency.

Once the right to receive an allowance has been established, in view of this recent ordinance the quantification of the sum will be made taking into account also the duration of the marriage; in short, to prevent ‘flash marriages’ from becoming a means for a spouse to obtain an automatic  income charged to the ex-spouse.

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