Cass. civ., Sec. I, Ord. no. 15212/2023: The Burden of Proof in Separation Adjudication

The recent order of the Court of Cassation, no. 15212 of May 30, 2023, offers significant insights into the evaluation of evidence in matters of spousal separation. The Court addressed a case where responsibility for the abandonment of the marital home was contested, highlighting the importance of the burden of proof in the context of separations.

The Case Analyzed by the Court of Cassation

In the case at hand, the Court of Appeal of Bari had upheld the appeal of B.B. and revoked the pronouncement of separation adjudication against him, despite the evident abandonment of the marital home. The appellant, A.A., challenged the decision, arguing that the Court had not adequately considered the evidentiary elements presented in the first instance.

The Court of Cassation established that the voluntary abandonment of the marital domicile is, in itself, sufficient to attribute fault for the separation, unless it is proven that such abandonment was caused by the conduct of the other spouse.

Legal Principles on Separation

According to Article 151 of the Civil Code, the judge must carefully examine the circumstances that led to the separation. The Court reiterated that the burden of proof lies with the party who abandoned the marital domicile, who must demonstrate that the abandonment was caused by intolerable behavior of the other spouse.

• The spouse must prove that the intolerability of cohabitation was already present at the time of abandonment.
• Admissions by a party can be used as circumstantial evidence, but not as confessions.
• The assessment must also consider the presence of minor children and their well-being.

Implications of the Ruling

The decision of the Court of Cassation to uphold the first ground of appeal by A.A. and to refer the case back to the Court of Appeal of Bari highlights the importance of a congruent and logical reasoning in decisions concerning the adjudication of separation. The Court emphasized that the assessment of responsibility is reserved for the trial court judge, who must base their decision on concrete evidence and not on subjective evaluations. The lack of adequate reasoning can lead to a violation of the right to defense and a misjudgment of the case.

Conclusions

This order represents an important step in clarifying the rules on the burden of proof in separation matters. The Court of Cassation, with its decision, has reaffirmed the need for a thorough analysis of the evidence and circumstances leading to the adjudication of separation. It is crucial for trial court judges to follow these guidelines to ensure fair and balanced justice in family disputes.