Avv. Mario Sabatino

The law provides that in the divorce decree, the court will impose an obligation on one spouse to provide the other spouse with an allowance at regular intervals when the latter does not have adequate means or cannot obtain them for objective reasons.

In this regard, according to the law, the court must take into account

- the circumstances of the spouses

- the reasons for the decision

- the personal and economic contribution made by each spouse to the running of the family and to the formation of the assets of each spouse or of the joint assets;

- the income of both spouses.

All the elements listed above must also be assessed in relation to the duration of the marriage and the age of the applicant.

According to case-law, the divorce allowance has a welfare, compensatory and equalising function.

The court must establish any disparity between the incomes of both spouses. This difference between the spouses’ economic and property positions must be ‘significant’. The slightest discrepancy cannot justify the imposition of an allowance.

Any significant imbalance between the positions must also be the result of the family life choices adopted and shared during the marriage, with the sacrifice of the professional and income expectations of one of the parties in order to assume a leading role within the family. The judge’s assessment on this specific point must be rigorous, but the difference between the parties’ overall economic positions at the time of the divorce need not necessarily be proven solely by the spouse requesting the allowance.

In order for a divorce allowance to be awarded, there must therefore be a significant economic imbalance as a result of the choices and sacrifices made during cohabitation in the interests of the family. Once the economic imbalance has been ascertained, the judge must then check whether this gap can be overcome autonomously by the applicant for the allowance, by recovering or consolidating his professional activity. The existence of factors that could prevent the imbalance from being overcome (e.g. the applicant’s working capacity) must be proven by the applicant. Therefore, the allowance may be refused if, although there is an income imbalance, it appears that the applicant spouse can overcome this imbalance on his/her own.

What are the effects of the establishment of a new cohabitation on the right to receive the divorce allowance?

The cohabitation that is presented as a stable model of common life ceases the right to receive the divorce allowance, since the creation of a new family – even a de facto one – breaks all ties with the standard of living and the model of life that characterised the previous phase of married cohabitation.