Separation Fault: A Recent Ruling from the Court of Cassation

The recent ruling no. 4038 from the Court of Cassation, pronounced on February 14, 2024, offers important insights into the issue of fault in the separation of spouses. The central question was the determination of one spouse's responsibility in the marital crisis and the intolerability of continuing cohabitation. In this article, we will analyze the key points of the ruling and its impact on jurisprudence regarding separation.

The Case Addressed by the Court of Cassation

In the case at hand, A.A. appealed the ruling of the Court of Appeal of Bari, which partially upheld his appeal, increasing the maintenance allowance for the two minor daughters and rejecting his request for fault in the separation against spouse B.B. For the Court, A.A.'s infidelity was proven through atypical evidence, including investigative reports. This raised a debate on the validity of such evidence, particularly regarding its ability to demonstrate a causal link between marital behaviors and the marital crisis.

Legal Principles and Jurisprudence

The Court reiterated that the declaration of fault in the separation requires proof that the marital crisis is attributable exclusively to behaviors contrary to marital duties. In particular, it is necessary to demonstrate:

• the existence of a crisis that was already irreversible prior to the infidelity;
• the causal link between the infidelity and the intolerability of cohabitation;
• the overall assessment of the behavior of both spouses.

In terms of fault in separation, the prior existence of the couple's crisis in relation to the infidelity of one of the spouses excludes the causal link between the latter conduct and the intolerability of continuing cohabitation.

In the ruling being commented on, the Court confirmed the decision of the lower court judges, emphasizing that the husband's intention to separate had been expressed in 2016, before A.A. made his request. This led to the conclusion that the existing issues were not sufficient to justify the request for fault from the appellant.

Conclusion

Ruling no. 4038 from the Court of Cassation represents an important confirmation of the jurisprudential orientation concerning separation and fault. It highlights how essential it is to demonstrate the causal link between the behaviors of the spouses and the intolerability of cohabitation. This principle not only guides judges in their decisions but also provides clear guidance to spouses regarding the rights and duties arising from marriage.