Divorce and Alimony: imprisonment for the spouse who does not pay
Art. 570 bis of the Criminal Code has now entered into force, shedding light on the consequences faced by those who do not comply with the obligation to pay the alimony check to their children or former spouse.
From 6th April 2018, Italian Law has cleared up some doubts about the consequences for those who – notwithstanding the judge’s decision – do not pay the due amount to their children or, and this is the novelty, to the legally separated spouse. Art. 570 bis of the Criminal Code, included in d.lgs. 21/2018, brings order among a number of conflicting judgements.
Art. 570 of the Criminal Code regarding the violation of family care obligations only provided for children protections, excluding the spouse. Once the type of offence has been extended, other categories of people against whom it may be committed have been added.
In addition to those who do not pay what is necessary to support children (born both during marriage and outside of wedlock), also those who do not pay any type of due alimony following termination of marriage civil effects for separation, dissolution or invalidity are now punishable.
Moreover, the spouse who does not pay the exact sum but a smaller amount will be punished.
Art. 570 bis abrogates two special regulations:
- 12-sexies of law n. 898 of 1970, regulating cases of dissolution of marriage, which punished the divorced spouse who did not comply with the payment of due checks to the other spouse, as established by the court, as well as of any alimony aimed at supporting and educating children born or adopted within wedlock before its dissolution.
- 3 of law n. 54/2006, which provided for application of art. 12-sexies of law n. 898 of 1970 regarding separation of spouses and joint custody of children.
Types of offences
The following types of offences are punishable with imprisonment up to one year or with a fine going from 103€ to 1.032€:
- Leaving the marital home or engaging in a conduct which goes against the family order or morals, along with violating parental or marital responsibilities.
- Taking personal advantage of or squandering properties which belong to underage children or the spouse, by abusing one’s own position.
- Failing to provide the proper means of support to underage children, to children who are incapable of working, to the spouse or to dependent parents, due to own’s own misconduct.
Considering that the spousal support will not be assigned based on guaranteeing the standards of living of the married couple, once the amount of the alimony check has been established – even if temporary because determined during the separation phase – its payment will represent an obligation, whose infringement will be punishable with a fine or with imprisonment.
Contradictions in the new regulation
The Criminal Code already provided for fines and imprisonment but not in such an extended form.
The new regulation is likely to create discriminations as to who commits the offence. If the person who does not comply with the obligation to pay the alimony check is the separated parent, or the unmarried parent, of adult children, then the fact does not constitute criminal offence. Criminal sanctions should therefore be applied only in case a divorce has already taken place.
Also those parents who have always and timely paid the amount due but not the extraordinary expenses for their children might be sanctioned.
Increased focus is also given to the judgement of separation. Those who do not pay the temporary check to the separated spouse commit a crime, even though – and this is not an uncommon event – such check may turn out to not be due.