MAINTENANCE CHEQUE IN ANNULLED MARRIAGES

Can I go on receiving the maintenance cheque if the Sacra Rota has annulled my marriage?

In cases in which alimony is quantified and assigned to one of the partners after a sentence of divorce, if the marriage is then recognized as null by the Sacra Rota, the scenario changes also as regards patrimonial aspects. This has been established by the Supreme Court (‘Corte di Cassazione’) in order dated 11 May 2018 n. 11553.

The principle sanctioned in this order is relevant in that it changes some of the patrimonial rights of spouses even after a definitive divorce judgement.

The general principle of the Italian legal system is that if a sentence has passed uncontested and so become definitive, its rulings can no longer be altered and must be complied with by the parties.  The Supreme Court order, instead, is entirely innovative, and enables a sentence passed by the Civil Court Judge, uncontested and therefore definitive, to be altered if the Ecclesiastic Court should later issue a declaration annulling the original marriage. After prior deliberation, such a declaration is recognized by the Italian State.

The right to receive alimony is based on the duty of solidarity between the two ex-spouses and has the aim of safeguarding the spouse in weaker economic conditions. In fact, the right to a maintenance cheque is subordinated to the ascertainment that the ex-spouse applying for it has insufficient means of support. Therefore, in the Italian legal system the economically weaker spouse has the right to ‘aid’ by the partner even after the wedlock has been dissolved by the divorce.

Now, this scenario changes if the Ecclesiastic Court issues a declaration of annulment of the marriage, that will annul the previous legal sentence, even definitive, whereby the economically weaker ex-spouse had the right to maintenance.  For the annulment to be valid, however, it must be sanctioned in a procedure before the competent Italian Court of Appeal, after which the sentence issued by the Ecclesiastic Court will be officially recognized by the Italian State.

Therefore, after annulment of the marriage by the Sacra Rota, there will no longer be a legal basis for the right to receive alimony, even if this right was previously supported in a definitive sentence. The declaration by the Ecclesiastic Court denies the original existence of the wedlock and hence any possibility of a right to maintenance.

To conclude, in answer to the question whether one can continue to receive alimony sanctioned by a definitive sentence issued by the Italian Civil Court, if the Sacra Rota latter declares the marriage null, the answer is no.

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