June 4, 2019
The right to divorce allowance has always been the subject of extensive discussions and significant changes from the point of view of the jurisprudence.
With marriage the spouses acquire the same mutual rights and duties, such as the duty of moral and material assistance.
According to a more established jurisprudential principle, the economically disadvantaged and weaker spouse has the right to a maintenance aimed to ensuring the same standard of living enjoyed in marriage.
Recently, we witnessed a different trend introduced by the Judges who gradually provided for stricter criteria for recognizing the right to maintenance. It has been established that, in order to receive a maintenance sum, the spouse should not be economically self-sufficient for objective reasons .
In fact, the Supreme Court had passed the constant reference to the standard of living regarding the divorce allowance and provided that reference should be made to the real possibility of the economically weaker spouse to obtain an own income (judgment no. 11504/2017).
Speaking on this point, the United Sections of the Supreme Court reiterated that one of the fundamental elements in the examination of the existence of the right to maintenance is precisely the contribution of the spouse to family life as a whole, therefore considered choices and sacrifices made in the interest of the family, as well as the duration of the marriage (Judgment no. 18287/2018).
The assistance, compensatory and equalization function of the divorce allowance is therefore reconfirmed. In light of this orientation of the United Sections, the reference to the standard of living during the marriage is not entirely excluded.
A further element to be examined is the possibility of assigning the family home to the spouse with whom children live , i.e. minors, or adults economically not independent. In this case, however, it is essential to underline that the assignment of the house is foreseen only in the interest of the children.