Divorce and Alimony: A Reflection on the Ruling of the Court of Cassation
The recent ruling of the Court of Cassation (n. 35308 of December 18, 2023) offers important insights regarding the right to alimony and the share of severance pay. With this decision, the judges reaffirmed the importance of protecting the economically weaker spouse, clarifying some fundamental aspects of the existing legislation.
The Case at Hand
The dispute involves A.A. and B.B., an ex-divorced couple, with B.B. requesting recognition of 40% of the severance pay (TFR) of their ex-spouse. The Court of Appeal of Rome had confirmed the decision of the Court of Cassino, establishing that the right to the TFR belonged to B.B. despite the fault of the separation being attributed to them. This situation raised questions about how the conduct of the spouses influences alimony and property rights post-separation.
The Court emphasized that the conduct during marriage and the economic conditions of the spouses are only relevant at the stage of determining the amount of alimony.
Relevant Legislation and Jurisprudence
The Court's decision is based on Article 12-bis of the divorce law (Law n. 898 of 1970), which provides that the spouse entitled to alimony 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 the marital life, even after the marriage has ended. It is important to note that, to access this right, one must be entitled to alimony.
- The right to alimony is not influenced by the fault of the separation.
- The duration of the marriage is a significant parameter in determining property benefits.
- The right to a share of the TFR matures at the time of the termination of the obligated spouse's employment.
Conclusions
The ruling of the Court of Cassation clarifies that the recognition of the right to a share of the TFR cannot be denied solely based on the conduct of the requesting spouse. It highlights the importance of ensuring adequate protection for the economically weaker spouse, preventing past behaviors from compromising post-divorce property rights. In an evolving legal context, it is essential that the rights of spouses are protected fairly and justly, in line with the principles of solidarity and social justice.
