Divorce Allowance and Territorial Jurisdiction: An Analysis of the Ruling of the Court of Cassation, Section I, Order No. 34422 of 2024

The ruling of the Court of Cassation No. 34422 of 2024 offers an important reflection on the criteria of territorial jurisdiction in the context of divorce proceedings, with particular attention to the custody of minors. The decision, issued on September 26, 2024, analyzes the issue of the minor's habitual residence and the principle of perpetuatio jurisdictionis, fundamental elements for the correct determination of the competent judge.

The Context of the Ruling

In the case at hand, B.B. requested the cessation of the civil effects of the marriage with A.A., asking for shared custody of their son C.C. and the regulation of the time spent with the father. However, A.A. contested the jurisdiction of the Court of Verona, arguing that the minor's habitual residence had changed and that, therefore, the competent Court should be that of Monza.

The Court reiterated the importance of considering the factual situation existing at the time of filing the application, believing that the territorial jurisdiction remained that of the Court of Verona.

The Court's Arguments

The Court examined two grounds of appeal presented by A.A. concerning the violation of Article 473 bis.11 of the Italian Civil Procedure Code, which establishes jurisdiction based on the minor's habitual residence. The first ground concerned the interpretation of habitual residence, while the second referred to the principle of proximity, to be considered in relation to the best interest of the minor.

• The Court emphasized that territorial jurisdiction must be determined at the time the application is filed, without considering subsequent changes that do not affect the habitual residence.
• Moreover, it confirmed that the principle of perpetuatio jurisdictionis prevails over changes in registered residence, ensuring greater legal certainty.

Implications of the Ruling

This ruling has significant implications for future legal disputes regarding divorce and custody of minors. It establishes a clear principle for determining territorial jurisdiction, highlighting the importance of ensuring stable and predictable judicial protection. Furthermore, it reiterates that decisions concerning the custody of minors must always take into account their habitual residence at the time of the request, avoiding the risk of forum shopping.

Conclusions

In conclusion, the ruling of the Court of Cassation, Section I, Order No. 34422 of 2024 represents an important reference point for legal practitioners and couples undergoing separation or divorce. It clarifies how territorial jurisdiction must be strictly respected, thus protecting the superior interests of the minors involved. Understanding these principles is fundamental to addressing legal issues that arise in complex family contexts with awareness.