Guide to Maintenance Allowance, Separation and Divorce
Recently updated on 9 Dec 202211 May 2022 - Divorce & Family Law - 9 min
The maintenance allowance is the financial compensation that is sent to a partner or child following a relationship crisis where the break-up is decided in front of a judge.
There are three kinds of allowance that can be granted to children/partners, namely child support, a separation allowance for the partner, and the divorce allowance to a former spouse.
In order to understand in detail what maintenance, separation and divorce allowances are, what differences exist between them, who is entitled to them, for how long, how they are calculated, how to apply for them or whether they can change over time, it is necessary to start from the law that introduced this form of financial support following a break-up.
The History of Maintenance Allowances
The introduction of maintenance allowance legislation is contemporary with the introduction of divorce into Italian law 50 years ago. Without divorce there would be no separation, without separation there could be no economically weaker spouses to assist, or children to whom maintenance could be guaranteed, even if they no longer lived together, hence the reasons for the coincidence of these two pieces of legislation.
Divorce was introduced in the Italian legal order of 1st December 1970, with law number 898, so called the Fortuna-Baslini law: “regulations governing dissolution of marriage”.
The Italian legal system stipulates that, before arriving at a dissolution of marriage, a period of personal separation is required.
When it comes to deciding the specific needs of each of the two former partners, a different perspective is used depending on whether the couple are in the pre-divorce separation phase or have progressed to the divorce phase.
A number of variables also come into play with regard to child support (principally age and the different needs according to age as well as the relative incomes of the parents, standard of living in the period prior to the separation, etc.).
Maintenance according to the constitution
Financial comprehension to a spouse or former spouse or to children is an obligation that is not contractual in nature.
It is the Italian constitution that provides economic protection for the weaker party in the family in the case of a breakdown of agreement and separation. These benefits are part of the family solidarity obligations.
Article 2 of the Constitution of the Italian Republic states: ‘The Republic recognises and guarantees the inviolable rights of mankind, both as an individual and in the social formations where his personality takes place and requires the fulfilment of the mandatory duties of political, economic and social solidarity’.
Articles 29-31 of the constitution state that the family is the ‘principal intermediate social formation’ and the ‘first and most important cell of natural society’.
Maintenance allowance for the protection of Children
With regard to children, Article 30 of the Constitution of the Italian Republic states that “it is the duty and right of parents to maintain, educate and bring up their children, even if they are born out of wedlock” (maintenance and rights of children of unmarried parents).
The Civil Code states that “unless otherwise agreed freely by the parties, each parent shall provide for the maintenance of the children in proportion to his or her income; the judge shall, where necessary, establish the payment of a periodic allowance in order to achieve proportionality” (Art. 337-ter).
This allowance, again according to the Civil Code, is to be determined according to the needs of the child, the standard of living enjoyed during the period preceding the separation, the time spent with each of them, the economic resources of both, and the “economic value of the domestic and care duties undertaken by each parent”.
For children who have reached the age of adulthood and are therefore presumed to be able to create a certain degree of autonomy for themselves or have the means to do so, no law specifies that a parent must terminate payment of the allowance on reaching the age of 18.
However, this issue is the subject of debate and the courts have often dealt with cases of parents asking for recognition of the economic independence of their adult children, or at least asking them to work towards it, given every opportunity. The Court of Cassation had already intervened to settle the matter in judgment no. 18076/2014, calling for several factors to be taken into account, once the children had reached the age of majority, namely “the circumstances justifying the continuation of the aforementioned obligation or the assignment of the property”.
Also, according to the Court of Cassation “such an obligation may not be prolonged beyond reasonable limits of time and extent.”
It is up to the children’s self-awareness to understand the best way to achieve their independence, without placing an excessive burden on their parents.
In its most recent order no. 11186 of 11 June 2020, the Court of Cassation ruled in favour of a father whose son, while studying, had a part-time job with a zero-hour contract.
In these circumstances, the maintenance allowance was assessed as superfluous.
Separation and divorce allowance
Two measures in particular are designed to protect the former partner who is considered to be financially weaker and therefore needs economic support.
The type of support varies according to the stage of the break-up, separation or divorce.
Allowance after separation
The first type of support for a separated partner who is considered to be in need financial assistance, is established at the stage of separation.
Separation does not necessarily entail the termination of the effects of marriage, but rather represents a transitional situation, a sort of suspension with a deadline, and may lead to divorce or reconciliation.
Within this context, in decisions relating to separation allowances there is a tendency to continue the financial benefits enjoyed during the course of the marriage as the marriage is still technically in place.
If the spouse is not charged with the separation, the standard of living enjoyed during cohabitation is guaranteed, as the other partner’s duty of material assistance still applies. Only obligations of a personal nature, i.e. fidelity, cohabitation and cooperation no longer apply.
Several factors are considered in determining the amount of money paid in the allowance. These include the length of the marriage, the different incomes of the two spouses, the availability or otherwise of a family home, and any extraordinary expenses caused by the separation. The details of the separation, if agreed upon mutually, will only involve the lawyers, who will also agree between the parties on the monthly fee to be paid.
In the event of a judicial separation (where a mutual agreement cannot be made), all decisions will be referred to a judge.
The guideline for determining the amount to pay as allowance is still determined by the pre-separation standard of living.
In the case that separation evolves into divorce, payment of the separation allowance shall cease one month before payment of the divorce allowance begins.
A divorce allowance is the material demonstration of the principle of post-marital solidarity.
Once the final divorce decree has been issued, one of the patrimonial effects will be the payment of a periodic divorce allowance, aimed at maintaining the spouse who is less sufficient in the case that there is not financial parity between the former partners.
The allowance is paid from one of the ex-partners to the other in the case that it is decided that the less economically stable partner would not be able to support themself without it.
It’s also possible to choose to make a lump sum payment. In this case the parties must have reached a specific agreement. The payment of the lump sum excludes cases of emergency, so that the beneficiary may not claim any other economic benefit, not even in the event of a worsening of economic conditions (see Civil Cassation, section of labour, judgment 08/03/2012 no. 3635).
If one of the partners pays a lump-sum payment, they will not be able to use it as a charge deductible from income, for the purposes of the application of IRPEF (art.10 paragraph 1, letter c). d.P.R. n.917/1986) as would be possible with a monthly divorce allowance (civil cassation sentence. No. 23659 of 6/11/2006; Civil cassation sent. No. 16462 of 22/11/2002).
In addition, a one-off lump-sum payment does not qualify as taxable income for IRPEF purposes for the recipient.
Compared to the separation allowance, the divorce allowance must comply with more restrictions before being granted, especially after the Supreme Court’s judgment no. 11504/2017, which is considered a milestone for subsequent discussions because it implemented a reversal (change of opinion) with respect to the previous 30 years of case law.
Marriage, as an ‘act of freedom and self-responsibility’, can also be dissolved, but at that point the ex-spouses go back to being ‘single persons’ and no longer have a duty of mutual support. As the marriage is dissolved but not annulled, a maintenance allowance will still be due for ‘economic solidarity’ with the former spouse.
Even if the ex-spouse considered to be the weaker party earns a salary, if this provides insufficient means for them to support himself/herself, the divorce allowance will be used to supplement their income. Those who are not employed will be entitled to a contribution not exceeding what is necessary to live off.
The amount of the divorce allowance, in this case, would be a much smaller amount than the maintenance allowance.
The guideline boils down to the fact that if one has the means to provide for oneself, receiving an allowance from one’s former partner would lead to undue enrichment.
However, it also has a compensatory function, because it is also based on the spouse’s contribution to building up the family’s assets during the marriage (even if it was in domestic work/ childcare).
The Supreme Court has clearly indicated the factors that determine self-sufficiency:
- possession of income (of any kind)
- possession of movable and immovable assets
- ability or possibility of working (the Court of Cassation sets 45-50 as the age limit beyond which it is much more difficult to find a job)
- access to a home
Those who are unemployed will have to prove to the judge that this is not due to their own will, but rather due to reasons related to age, health, vocational training, or crisis in the employment market (due to the Covid health emergency, for example, it is clearly more difficult to find work, especially in certain sectors).
In order to prove a legitimate attempt to find work being registered with a job centre is not sufficient. You will have to prove that you have sent CVs, participated in calls for tenders and competitions, …
Analysing a series of judgments by the Supreme Court of Cassation, it can be seen that the principle of standard of living has been abandoned, and that the allowance is now more likely to be assessed on the basis of the working capacity of the weaker party: if he or she is young and able, the amount of the allowance will be less substantial and will have to be a minimum of support.
The ex-spouse is obliged, after the divorce, to look for employment, and to actively use his or her abilities. The court condemns an “irresponsible wait-and-see attitude, of those who simply wait for job opportunities, passing the financial burden of the end of married life on to the better-off spouse”. (C.C. Order No. 3661 of 13 February 2020).
If, however, the less wealthy ex-spouse is significantly older, “the applicant will be granted an adequate amount to guarantee them a dignified and autonomous life, which recognises the sacrifices they have made and what they have done during the marriage” (C.C. judgment no. 6519 of 9 March 2020).
Revisions of Maintenance/ Divorce allowances
The revision of a maintenance or divorce allowance does not occur automatically, but must be expressly requested.
Several judgments of the Supreme Court of Cassation have led those who were forced to pay a large allowance to their ex-spouse, determined by criteria considered anachronistic (primarily maintenance of the lifestyle enjoyed during the marriage) to request a review of the maintenance allowance, obtaining, in some cases, its revocation.
Another situation that may arise after the separation or divorce decree is that of receiving an inheritance that significantly changes the financial independence of the formerly weaker ex-spouse and puts an end to their need for financial support.
In the groundbreaking judgment 28778/2020 of 16 October 2020, the Court of Cassation ruled that the allowance must be remodelled or revoked if the beneficiary spouse is in a stable romantic relationship. This is applicable even if officially there is no cohabitation with the new partner, as they could be living together and also maintaining two separate residences. The reasoning for this is that a stable relationship with another partner would devalue the sense of maintenance by the former spouse.
Renegotiating maintenance payments at the time of Covid is something that has unfortunately become increasingly necessary. Once the petitioner has demonstrated the inadequacy of their income following a loss of work due to Covid, judges have had to adjust the amounts due to the petitioner on a case-by-case basis according to the ex-partner’s new situation.
If you are going through a separation, or you are not convinced that the amount of allowance you pay to your children and/or ex-partners is correct, or if you are otherwise interested in learning more, do not hesitate to contact our lawyers in the Family Law and Divorce Department.
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