Allowance to the ex if no proof of concrete possibility to work is provided
Alimony is due unless the former spouse’s ability to work il fully proved.
The Italian Supreme Court (Corte di Cassazione) in its order no. 22758/2022 specifies that if the husband does not want to recognize the divorce allowance to his former wife, he must concretely prove that she can work, making use of her experiences and aptitudes. The issue, however, in order to be taken into consideration in the Supreme Court must also have been raised in the judgment on the merits and dealt with in the contested judgment on the merits. Otherwise, the judges cannot rule on it.
A couple decides to divorce and appeals to the competent court, which in a non-final judgment excludes the wife’s entitlement to divorce alimony. On appeal, however, the decision is overturned. The woman is awarded a monthly allowance of €200.
The husband, determined not to recognize anything to his former wife, appeals to the Supreme Court raising a single ground of complaint against the judge’s decision. The man argues in his sole ground of complaint that the court had unlawfully awarded his former spouse the divorce alimony, erroneously holding that he was working, neglecting to consider that his wife had not given any evidence of being willing to work to achieve her economic independence by making use of her aptitudes and previous work experience.
A husband who denies alimony must prove his former spouse’ s ability to work
The Supreme Court, having analysed the grievance, considers the appeal to be completely inadmissible since the Court of Appeal excluded that the husband had been dismissed. Moreover, the husband had raised in the appeal in the court of legitimacy issues that he had never raised in the proceedings on the merits, as is also shown by the failure to attach or indicate the document in which he raised the issue of his wife’s failure to start looking for work. In any event, the Supreme Court notes that the question, as posed by the appellant, is not decisive.
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