Once the ex has obtained the divorce allowance, he cannot sleep peacefully. The law provides that in case of remarriage she automatically loses it; however, nothing is foreseen in the event that she goes to live with a new partner or a new partner.
Applying by analogy the discipline envisaged in the case of remarriage also to the new de facto cohabitation, for decades the judges have considered the cause of the automatic loss of the allowance not only the new marriage but also the establishment of a de facto cohabitation, provided that with the characteristics of durability and stability, i.e. a coexistence defined more uxorio (Cassazione n. 32871/2018).
Since 2020, on the other hand, there have been conflicting pronouncements that are generating some uncertainty on the point.
In December 2020, the Cassation affirmed that in the event of de facto cohabitation, the Court should not eliminate the divorce allowance tout court, but must assess on a case-by-case basis what was the contribution made during the marriage by the ex who receives the allowance both to assets of the family and that of the other ex-spouse and consequently remodulate the amount of the allowance based on the applicant’s new family structure, without automatically eliminating it (Cass. order 28995 of 12.17.2020).
In November 2021, the joint sections of the Court of Cassation shared the principle of the Court of 2020 and confirmed that the divorce allowance performs a dual welfare and compensatory function. The new bond, i.e. cohabitation, for the judges eliminates the welfare function of the divorce allowance since in the presence of a new de facto family this need is no longer present, by virtue of the so-called principle of self-responsibility, since if the relationship with the new cohabitant is considered stable (for example due to the presence of children or the common economic contribution in everyday life), the need for financial assistance by the former spouse is evidently eliminated . For the judges, however, the new cohabitation does not eliminate the compensatory function of the divorce allowance which, since it does not refer to future needs but to circumstances that have already matured in the past, is therefore aimed at acknowledging the contribution made by the weaker spouse to the formation of the assets of the family and the personal assets of the other spouse. If the economically weaker spouse has sacrificed his job aspirations in favor of the family, according to the Court it is correct that he is guaranteed a compensatory contribution of divorce allowance even if he has formed a new family union, also taking into account the duration of the marriage.
However, the establishment of the new more uxorio cohabitation could affect the amount of the divorce allowance and the Court is required to take into consideration the economic contribution that the new family structure provides to the former spouse receiving the allowance, it being possible that this can be reset (Cass. Sez. Unite n. 32198/2021).
The Court of Cassation, therefore, since 2020 has excluded that, in the event of a new cohabitation, the automatic forfeiture of the right to receive the divorce allowance operates, thereby introducing a difference in treatment compared to the former spouse who is the holder of the divorce allowance who contracts a new marriage, who instead continues to automatically lose the divorce allowance as expressly provided for by the Law and the sections
United have reaffirmed this principle.
In May 2022, the Cassation contradicted itself by even questioning the concept of cohabitation more uxorio, with direct repercussions on the divorce allowance and its elimination tout court according to the principles affirmed until 2019 by all the jurisprudence on the merits and legitimacy or on its stay, possibly to a reduced extent, according to the principles established in 2020 by the Cassation and confirmed in 2021 by the United Sections (Cass. 14151/2022 of 8 May 2022).
According to this recent ruling, for the purposes of more uxorio cohabitation it is not even necessary for the couple to cohabit, it being sufficient that there is an emotional relationship between them and that they spontaneously give each other spiritual and material support and also this type of cohabitation provides for the automatic loss of the check.
In the case analyzed by the Court, the ex-wife who received a divorce check had a boyfriend who, although not living with her, had made the contract for the electricity of his girlfriend’s home in his name, the cost of which he also bore. This element alone made the judges of the Court of Cassation affirm that the Court of Appeal should have better assessed the situation, i.e. considered the existence of a more uxorio relationship regardless of cohabitation and, consequently, provided for the tout court elimination of the divorce allowance, not taking into consideration the principle of compensation affirmed a few months ago by the United Sections, which had ruled in the presence of a cohabitation more uxorio not questioned by the parties, however establishing the permanence of the divorce allowance.