Court of Cassation clarifies the nature and the standards of quantification of divorce check
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The sentence 18287/2018, rendered by Court of Cassation’s United Sections, clarifies the nature and the standards of quantification of divorce check under art. 5, paragraph 6 of law 898/1970 pursuant to which “With the sentence pronouncing the dissolution or termination of the civil effects of marriage, the court, taking into account the spouses’ conditions, the reasons for the decision, the personal and economic contribution given to the family conduct and to the each or common asset formation, the incomes of each spouse, and assessed these elements also in relation to the marriage’s duration, establishes the obligation for a spouse to give periodically in favor of the other a check when the last one does not have adequate means or at least can not obtain them for objective reasons”.
The United Sections’s intervention was necessary following the sentence 11504/2017 which had revised the Court of Cassation’s consolidated orientation started with the sentence 11490/1990 and by which, given the divorce check’s welfare nature, the prerequisite for its concession was based on the means’ inadequacy (income, assets and other benefits) of the spouse requesting the check to maintain a tenor of life similar to that during marriage. It was not necessary a state of need’s assessment of the spouse; what was significant is the deterioration, because of the divorce, of the previous economic conditions.
The sentence 11504/2017, interrupting a nearly thirty-year orientation, had identified, as a standard for divorce check’s concession to the ex-partner, the absence of economical self-sufficiency and had established that only after having ascertained this prerequisite could proceed to the determination of the sum.
With the sentence 18287/2018 the Court leaves rigid distinction between the standard of living enjoyed during marriage and that of economical self-sufficiency to establish a composite standard by which the right to the divorce check arises when it comes to remedy to the imbalance existing in the economical-patrimonial situation of the parties whose causes go back to the married couple’s experience, giving the importance to the choices and roles that have characterized family life.
Divorce check’s compensatory nature is approved. The check becomes an instrument to allow the spouse to receive what he or she has given during the marriage. The conjugal experience becomes a central element both with reference to the an debeatur and with reference to the quantum of divorce check.
The art. 5, paragraph 6 of law 898/1970 requires the judge to consider, in addition to the spouses’ conditions and the decision’s reasons, also the “personal and economic contribution given by each to family conduct and the each or common asset formation”.
The check is no longer considered a means of allowing the spouse to restore the standard of living enjoyed during marriage, nor is it purely a means of providing assistance to the spouse without means of free and dignified existence, but a means of giving the spouse a concrete recognition of his contribution to the realization of family life.
Now, its recognition and quantification must be the result of a composite assessment of different parameters: the contribution provided by the applicant to family life, the formation of the common and personal asset, the duration of marriage and the age of the spouse.
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