Maintenance Allowance in Case of Separation: Commentary on Order No. 234 of 2025

The recent order of the Court of Appeal of Naples, No. 234 of 07/01/2025, offers an important reflection on the rights and duties connected to the maintenance allowance in case of spouses' separation. In particular, the ruling clarifies the necessary prerequisites for a spouse to request such an allowance and the evaluation criteria to be taken into consideration.

The Nature of the Maintenance Allowance

According to Article 156 of the Civil Code, the right to receive a maintenance allowance is based on the persistence of the duty of material and moral assistance between spouses. This means that, even after separation, the economically weaker spouse has the right to receive financial support to ensure a dignified standard of living. The Court emphasizes that the maintenance allowance cannot be considered a form of compensation, unlike the divorce allowance.

Evaluation Criteria for the Allowance

A crucial aspect highlighted by the order concerns the evaluation of the applicant's economic capacity. Indeed, the Court specifies that in determining the maintenance allowance, it is essential to consider:

• The standard of living maintained during the marriage;
• The lack of adequate income of the applicant;
• The concrete and current working capacity of the applicant, even if not utilized without justified reason.

Separation of spouses - Maintenance allowance - Nature - Prerequisites - Lack of adequate income of the applicant - Evaluation criteria. In the context of spousal separation, the right to receive a maintenance allowance pursuant to art. 156 of the Civil Code is based on the persistence of the duty of material and moral assistance, is correlated to the standard of living maintained during the marriage, and, unlike the divorce allowance, does not have compensatory components. Therefore, when assessing whether the applicant is effectively lacking adequate income, their concrete and current working capacity must also be taken into account, even if the applicant does not utilize it without justified reason, as the maintenance allowance cannot extend to cover what, according to the standard of ordinary diligence, the applicant is actually capable of obtaining on their own.

Conclusions

In conclusion, Order No. 234 of 2025 of the Court of Appeal of Naples exhaustively clarifies the principles governing the maintenance allowance in case of separation. It is essential for those in this situation to understand not only their rights but also the duties that arise in a separation context. The evaluation of working capacity and personal income is essential for determining the amount of the allowance, and cannot be overlooked, in order to ensure fair support for the more vulnerable spouse.