Hypothesis of cancellation of the mortgage in case of separation: Cass. civ. n. 20552/2024

The ruling no. 20552 of 2024 by the Court of Cassation represents an important pronouncement regarding the separation of spouses and mortgage. In this case, the Court analyzed the conditions for the registration and subsequent cancellation of a mortgage as a guarantee for alimony, clarifying that the legitimacy of the registration is conditional upon the existence of a concrete danger of non-fulfillment by the obligated spouse.

Context of the ruling

The case originated from a request for the cancellation of a mortgage registered by A.A. as a guarantee for the maintenance allowance towards spouse B.B. The Court of Rome, in the first instance, had rejected the request for cancellation, but the Court of Appeal of Rome accepted the appeal, ordering the cancellation of the mortgage. A.A. then filed a cassation appeal, arguing that the lower court had not adequately considered the danger of non-fulfillment.

The ruling of cessation of the civil effects of marriage constitutes a title for mortgage registration, but the existence of the danger of non-fulfillment must be carefully evaluated.

The prerequisites for mortgage registration

The Court reiterated some fundamental principles regarding the registration of the mortgage as a guarantee for alimony obligations:

  • The separation ruling or cessation of the civil effects of marriage constitutes a title for mortgage registration.
  • However, it is necessary to prudently evaluate the existence of the danger of non-fulfillment by the obligated spouse.
  • The absence of such danger, whether original or subsequent, leads to the cancellation of the mortgage.

In this case, the Court found that spouse B.B. had regularly fulfilled his maintenance obligations for a long period, and therefore there was no danger of non-fulfillment, justifying the cancellation of the mortgage.

Conclusions

The ruling of the Court of Cassation no. 20552/2024 significantly clarifies the criteria for mortgage registration and cancellation in case of separation. It is essential for the spouse requesting the registration to demonstrate not only the existence of an enforceable title but also the concrete possibility of non-fulfillment by the other spouse. This ruling marks an important step towards the protection of property rights and the prevention of abuses in the area of mortgages.