Fidelity is one of the conjugal duties that arise from marriage, as shown in art. 143 of the Italian Civil Code, in the event of marital betrayal, pursuant to Italian Law the guilty spouse will not automatically lose the right to alimony.
Marital infidelity under Italian Law
Those who decide to get married must know that marriage entails rights and reciprocal duties. This is established by art. 143 of the civil code states: “With marriage, the husband and wife acquire the same rights and assume the same duties (articles 151, 160, 316 of the civil code and 29 and 30 of the Constitution).
From marriage derives the mutual obligation of fidelity, moral and material assistance (Article 146 of the Italian Civil Code), of collaboration in the interest of the family and of cohabitation (Articles 107 and 146 of the Italian Civil Code; Article 570 of the Italian Civil Code). Both spouses are required, each in relation to their own substances and their ability to work professionally or at home, to contribute to the needs of the family (Articles 146, 186 and 193 of the Italian Civil Code). Therefore, according to Italian Law, fidelity is not optional, but it is a real conjugal duty, which has juridical consequences not only on the moral, but also on the juridical level.
Let’s see how.
Infidelity and charge of separation under Italian Law
Marital infidelity that causes the impossibility for the spouses to live together, a prerequisite for separation, can lead the faithful spouse to request that the marriage crisis be charged to the cheating spouse.
In fact, if the judge ascertains that one of the spouses has violated one of the duties that the law places on the spouses as a result of the marriage bond, he can pronounce the charge of separation to one of them.
From what has been said so far, it is therefore clear that the separation charge, in order to be pronounced, requires the existence of the following conditions:
• that the violation of one of the conjugal duties provided for by art. 143 cc is prior to the submission of the application for marital separation;
• that between the violation of the duty of fidelity and the supervening intolerability of coexistence there is a relationship of cause and effect. In essence it must be the violation of the duty of fidelity to have caused the crisis of the relationship.
In this regard, the explanation of the concept of marital fidelity and the consequent ruling of objection contained in the Supreme Court’s judgement no. 15557/2008 whereby “the notion of marital fidelity should be approached to that of loyalty, which requires sacrificing the individual interests and choices of each spouse that prove to be in conflict with the commitments and perspectives of common life. In this context, effective fidelity becomes a component of a broader fidelity that translates into in the ability to sacrifice one’s personal choices to those imposed by the couple’s bond and by the partnership that is based on it to. progress, therefore autonomous and independent of a subsequent violation of the duty of loyalty “
Having clarified that the violation of the duty of fidelity can lead to the pronouncement of a charge against the responsible spouse, what effects does it have on the maintenance allowance?
Recent judgements of the Supreme Court had the chance to clarify the consequences of infidelity on maintenance, ruling that a stable relationship with a new partner does not entail the loss of the right to alimony. This is because, for the purposes of revoking this allowance, it is necessary to assess whether or not the new relationship has had a favorable impact on the real and concrete economic situation of the beneficiary spouse.
In the judgment of separation of the spouses, the conditions to which the right to maintenance is subjected and its concrete amount consists only in the non-chargeability of the separation to the spouse in whose favour the maintenance is ordered, in the absence of adequate income of their own and in the existence of an economic disparity between the two spouses, regardless of whether the separation was pronounced with or without charge to the other party. In the case at issue, provided that both spouses have adequate income of their own, even if the separation was charged to the husband, no assets have been assigned to the wife. “
It can therefore be affirmed and in conclusion that if the marriage enters into crisis due to the infidelity of one of the spouses, both the beneficiary of the alimony as well as the other spouse cannot use the infidelity as a shield to deny the recognition of the alimony or as a leverage to demand it. In fact, according to Italian law, the respective economic conditions of the spouses are still the most relevant criterion for maintenance purposes.
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