Divorce Allowance and Jurisdiction: Analysis of Order Cass. civ., Section I, No. 25353 of 2024

The recent order of the Court of Cassation, No. 25353 of 2024, offers an important opportunity for reflection on the criteria for awarding the divorce allowance. In this case, the Court addressed issues relating to the applicability of Swiss law on divorce allowances, highlighting the need for careful assessment of the economic and personal conditions of the spouses involved.

The Context of the Ruling

The case originated from a dispute between A.A. and B.B., in which the Court of Pesaro had initially set a divorce allowance of 10,000 euros per month in favor of B.B. However, the Court of Appeal of Ancona, partially upholding B.B.'s appeal, revised the amount of the allowance, bringing it to 19,000 euros per month, after considering various factors including the duration of the marriage and the economic conditions of the parties.

The Court affirmed that the divorce allowance has an assistential, compensatory, and equitable function, requiring an assessment of the inadequacy of the applicant's means.

The Issue of Jurisdiction and Applicable Law

A crucial aspect of the ruling is the issue of jurisdiction. The Court confirmed that, despite the marriage having been contracted in Switzerland, Italian jurisdiction was applicable to claims relating to the divorce allowance. This was established based on Article 31 of Law No. 218/1995, which allows for the application of common law to spouses in matters of divorce.

Criteria for Determining the Divorce Allowance

The Court referred to Article 125 of the Swiss Civil Code, highlighting that to determine the divorce allowance, various parameters must be considered, including:

• Duration of the marriage
• Economic conditions of both spouses
• Age and health of the spouses
• Working capacity and earning potential of the applicant

In particular, the Court emphasized that the allowance must be adequate and not exclusively assistential, but also compensatory and equitable, reflecting the real living needs of the beneficiary.

Conclusions

In conclusion, Order No. 25353 of the Court of Cassation represents an important reminder of the need for a multidimensional assessment of the divorce allowance, which takes into account not only immediate needs but also the future prospects of the spouses. This approach ensures greater fairness in the distribution of post-divorce resources, avoiding excessive burdens on one of the parties.