In 2017, the Cassation (Cass. 11504/2017), in assessing the debt of the divorce allowance, sanctioned the principle of self-sufficiency of the spouses at the end of the marriage with the exclusion of the parameter of maintaining the standard of living enjoyed during the marriage , establishing that this applies only to those without income and unable to work through no fault of their own. The Court of Appeal of Milan in the same year, with the famous so-called Berlusconi sentence, applied this principle (Corte App. Milano sentence 4793/2017).

Since then it seemed that the divorce allowance was destined to disappear, as the Cassation said goodbye to the standard of living enjoyed while married, with the shared goal of eliminating the so-called parasitic annuities, i.e. the situations in which the wife was mostly maintained for life by the ex even if the marriage had ceased some time ago, thanks to the application of the traditional parameter of the standard of living enjoyed while married which is effectively in contrast with the very nature of divorce, which definitively terminates the marriage bond.

However, the rigid application of the sole principle of self-sufficiency of the spouses upon termination of the marriage bond has penalized many ladies who, in agreement with their husband at the beginning of the marriage, had interrupted or limited their work activity to devote themselves to the family, favoring the career of the spouse.

On the basis of the new principle, for a few years the judges recognized very few divorce allowances, exclusively in the event of lack of means of support for the spouse applying for the allowance.

In recent times, however, a more balanced jurisprudential orientation is gradually establishing itself which, while not allowing parasitic annuities, recognizes the divorce allowance no longer exclusively to spouses who have no means of support through no fault of their own.

The judges now also consider the possible inequality of the economic income situation of the spouses, verify the actual contribution given by the spouse who requests the divorce allowance to the constitution of the common property during the marriage and of the ex-spouse’s property, take into consideration the duration of the marital cohabitation and recognize the ex-spouse who has obtained it the right to be able to maintain it even in the event of a new cohabitation. This was affirmed by a very recent ruling by the Cassation (Cass. n. 6537 of 28 February 2022) which wanted to enhance the balancing function of the divorce allowance, recalling two other recent rulings (Cassation n. 600223 of February 2022; 11796 of 5 May 2021).

The judges are therefore affirming a principle of economic solidarity whose fulfillment is required of both ex-spouses to protect the weaker one; only in the absence of a reason for economic solidarity, the possible recognition of the right would result in an unjust enrichment of the spouse receiving the allowance, as has happened several times in the past when reference was made in the abstract to the criterion of the constant standard of living of marriage, giving way to the much hated parasitic income.

Camilla Cozzi