Divorce and Alimony: A Reflection on the Supreme Court's Ruling
The recent ordinance of the Court of Cassation (n. 35308 of December 18, 2023) offers important insights regarding the right to spousal support and the share of severance pay. With this decision, the judges reiterated the importance of protecting the economically weaker spouse, clarifying some fundamental aspects of current legislation.
The Case Under Review
The dispute involves A.A. and B.B., an ex-divorced couple, with B.B. requesting recognition of 40% of their ex-spouse's Severance Pay (TFR). The Court of Appeal of Rome had confirmed the decision of the Court of Cassino, establishing that the right to TFR belonged to B.B. despite the separation being attributed to them. This situation raised questions about how the spouses' conduct influences spousal support and post-separation financial rights.
The Court emphasized that the conduct during the marriage and the spouses' economic conditions are relevant only in the phase of determining the amount of alimony.
Relevant Legislation and Case Law
The Court's decision is based on art. 12-bis of the divorce law (L. n. 898 of 1970), which provides that the spouse entitled to spousal support has the right to a percentage of the severance pay received by the other spouse. This provision aims to recognize the economic and personal contribution made to married life, even after the dissolution of the marriage. It is important to note that, to access this right, one must be entitled to spousal support.
- The right to alimony is not affected by the attribution of the separation.
- The duration of the marriage is a significant parameter in determining financial provisions.
- The right to a share of the TFR accrues at the time of the termination of the employment relationship of the obligated spouse.
Conclusions
The Cassation ruling clarifies that the recognition of the right to a share of the TFR cannot be denied solely on the basis of the applicant spouse's conduct. It highlights the importance of ensuring adequate protection for the economically weaker spouse, preventing past behaviors from compromising post-divorce financial rights. In an ever-evolving legal landscape, it is crucial that spouses' rights are protected fairly and justly, in line with the principles of solidarity and social justice.
