Commentary on the Judgment of Cassation, Civil Section III, Order No. 28558 of 2024: the Ineffectiveness of Real Estate Transfer in Separation Proceedings

The recent ruling No. 28558 of the Court of Cassation, issued on November 6, 2024, offers important insights regarding the validity of real estate transfer acts carried out between spouses in separation proceedings. The ruling addresses the delicate issue of the ineffectiveness of such transfers when third-party creditors are involved, shedding light on fundamental aspects related to the protection of creditors' property rights and the transparency of transactions between spouses.

The Context of the Ruling

The case at hand involves A.A. and B.B., who are facing a request for the revocation of a real estate transfer act deemed ineffective under Article 2901 of the Civil Code. The Court of Appeal of Rome, accepting the appeal of the company ITALFONDIARIO, declared the transfer ineffective, considering that B.B. had not demonstrated their financial capacity at the time of the transfer. This aspect proved crucial for the final decision of the Court of Cassation.

Analysis of the Decision of the Court of Cassation

First and foremost, the Court confirmed that the transfer of a property from one spouse to another, carried out in fulfillment of obligations arising from a consensual separation, can be subject to revocation if it is detrimental to the rights of creditors. The Court of Cassation emphasized that, in order to assess the event of damage, it is essential to consider the financial capacity of the transferor at the time of the transfer.

The qualification of the transfer as a gratuitous or onerous act and the existence of the event of damage are assessments of merit, unchallengeable in the context of legitimacy.

• The Court reiterated that the separation agreement, while having value, is not sufficient in itself to justify the transfer if it compromises the property guarantees for creditors.
• Furthermore, it emerged that B.B.'s alleged financial capacity was not supported by concrete evidence, but rather contradicted by their documented economic situation.

Conclusions

The ruling of the Court of Cassation No. 28558 of 2024 represents an important affirmation of principle regarding the balance between the need to protect creditors and the freedom of determination of spouses in separation proceedings. It clarifies that property transactions between spouses must be conducted with maximum transparency and that the protection of creditors' rights prevails in situations where there is a risk of jeopardizing their property guarantees. The correct assessment of the financial capacity of the transferor thus becomes a fundamental element for the validity of transfer acts, thereby avoiding potential conflicts between the rights of spouses and those of creditors.