Consensual Separation and Maintenance Allowance: The Ruling of the Court of Cassation

The recent ruling No. 41232 of December 22, 2021, by the Court of Cassation provides important clarifications regarding the commencement of the maintenance allowance in favor of the spouse and children in the context of consensual separation. This ruling is part of a heated legal debate of great social relevance, as it touches on fundamental rights related to the sustenance and well-being of families.

The Case in Question

In this specific case, the appellant B.A. challenged the decision of the Court of Appeal of Perugia, which had upheld the request of the spouse T.A. to proceed with enforced execution for the payment of a maintenance allowance. The central issue was to determine the commencement of this obligation: whether from the date of filing the petition for consensual separation or from the date of the court's approval of the order.

The Court of Cassation ruled that the maintenance allowance is due from the date of filing the petition, not from the approval ruling.

The Position of the Court of Cassation

The Court, while recognizing that consensual separation has different characteristics compared to judicial separation, confirmed the validity of the commencement of the maintenance allowance from the date of filing the petition. This principle is based on an interpretation of the rules that guides the effectiveness of agreements between spouses and the necessity to ensure that economic rights are not compromised by the time required for approval.

• The commencement of the allowance is linked to the filing of the petition.
• The ruling specifies that without specific contrary indications, the allowance is due from the moment of the request.
• The Court references substantial case law to support its thesis.

Practical Implications of the Ruling

This ruling has important implications for couples who have to manage consensual separation. It offers greater protection for the economically weaker spouse, ensuring that maintenance obligations do not suffer unjustified delays. Furthermore, it clarifies that parties must always explicitly indicate the commencement of obligations at the time they enter into the agreement to avoid future disputes.

Conclusions

In conclusion, ruling No. 41232 of the Court of Cassation represents a step forward in the protection of economic rights within consensual separation. It reaffirms the necessity to clarify the terms of agreements between spouses so that there are no misunderstandings regarding the commencement of maintenance obligations. Jurisprudence continues to evolve, providing more protective tools for the parties involved.