Divorce allowance to the former spouse who is unemployed

An Italian couple divorces, the court charges the husband with a divorce allowance of €1,400 to be revalued annually according to ISTAT indices and orders him to pay, also, the overall costs of the judicial proceedings.

The man appealed and asked for the amount of the divorce allowance to be reduced.

The court dismisses the appeal and confirms the first instance judgment. The ex-wife has been out of the labor market since 1987, namely immediately after the marriage, because she has always devoted herself to the administrative part of her husband’s dental practice and to the care of the family.

A law degree after separation is not an indication of earning capacity. In the context of the divorce, she is weakened economically and in terms of employment. Moreover, the woman is suffering from certified pathologies. Finally, it is true that she is the owner of two properties, but one is used as family home and the other is unproductive in terms of income.

The husband in the proceeding brought before the Court of Cassation contested the amount of the monthly allowance of 1,400 euros ordered in favour of the wife because the Court did not apply the parameters identified by the jurisprudence of legitimacy to verify the actual entitlement to the divorce allowance.

According to the Court of Cassation, however, the appeal is inadmissible. Indeed, the former wife has an inculpable incapacity for work, considering her age and long-standing inexperience in the labor market, the result of a shared marital choice that made it objectively difficult, if not impossible, for her, to return to the world of work.

From the analysis of the tax returns, the court also noted that the economic situations of the former spouses were not at all comparable and that the husband was in a predominant financial position.

The Court of Appeal, therefore correctly applied the provisions of the law, which provide for the recognition of the divorce allowance in favour of the former spouse in cases such as the one in question, as this is deems to have a welfare, compensatory and equalizing function.

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