Cass. civ. n. 29883/2024: Reflections on Maintenance Allowance and Mortgage Registrations
The recent ruling of the Court of Cassation, n. 29883/2024, offers significant insights regarding the theme of maintenance and asset guarantees in case of separation. In particular, the judgment focuses on the issue of mortgage registrations as guarantees for maintenance obligations, clarifying the necessary requirements for these to be lawfully established.
The Context of the Judgment
The case in question involves A.A., who is obligated to pay a monthly maintenance allowance for three children, and B.B., his ex-wife, who had requested the cancellation of two mortgage registrations against her. The Court of Appeal of Trieste had initially granted A.A.'s request, considering that there was no concrete danger of non-fulfillment. However, the Court of Cassation overturned that decision, emphasizing the need for a careful assessment of the risk of non-fulfillment, also in relation to the debtor's conduct, which must be analyzed in its entirety.
The Principle of the Risk of Non-Fulfillment
The judge must always review the creditor's assessment regarding the existence of the risk of non-fulfillment.
The Court highlighted that, according to Article 156, paragraph 5 of the Civil Code, the mortgage registration must be justified by the presence of a concrete risk of non-fulfillment. In this case, the decrease in A.A.'s share of profits from the professional association was considered a sufficient indicator of such a risk. The judgment clarifies that the mere fact of having failed to fulfill an obligation is not enough to justify the mortgage registration; a comprehensive and systematic assessment is required.
- The risk of non-fulfillment must be real and documented.
- The debtor's past conduct must be considered in the current context.
- Maintenance obligations, being periodic, require particular attention from the judge.
Conclusions
The judgment n. 29883/2024 of the Court of Cassation represents an important clarification on the methods of mortgage registration as guarantees for maintenance obligations. It reaffirms the importance of a rigorous assessment of the risk of non-fulfillment, based on concrete elements and not mere assumptions. In a context where the well-being of minors must always come first, the protection of the property rights of separated spouses requires a delicate balance, which this decision has helped to define.
