VALIDITY OF THE CLAUSE STIPULATED IN THE SEPARATION OF SPOUSES ON THE ALLOCATION OF NON-EQUAL SHARES OF PROPERTY FALLING UNDER THE LEGAL COMMUNITY – CASS. CIV. SEZ. I  03/02/2025, N.2546/2025

The legislature favours, in order to regulate relations between spouses, the regime of legal communion allowing, alternatively, to opt for a different system of communion which it typifies in Article 210 of the Italian civil code.

The mentioned norm allows spouses to change, by agreement, the legal communion regime with precise limits indicated by the norm itself not being able to include in the conventional communion the property of strictly personal use of each spouse, the property used for the exercise of the spouse's profession except for that intended for the management of a company that is part of the communion, the property obtained by way of compensation for damages and the pension pertaining to the partial or total loss of working capacity.

Article 210, in its second paragraph, stipulates the non-derogation of the rules of legal community regarding the administration of community property and the equality of shares limited to the property that would be the subject of legal community.

There would seem to be little space, in the light of the textual normative dictate, for the autonomy of the spouses in the availability of shares by providing for the non-derogation by agreement of the respective shares of movable and immovable property subject to legal communion, which should result in the invalidity of the agreement that assigns to one spouse a greater share of the communion property than that due to the other.

In the judgment of the Italian Supreme Court no. 2546 of Feb. 3, 2025 under commentary, the court of legitimacy was asked about the question of the validity of the separation agreement by which the spouses, in a separation judgment, had established the transfer of shares of an immovable property falling under the legal community in a non-equal percentage, a validity denied by the Judges of the merits in the first and second instance.

The Supreme Court in the judgment under comment, after recalling the precedent established in United Sections no. 21761/2021, by which clauses of the separation agreement that recognize to one, or both spouses, the exclusive ownership of movable or immovable property in the overall reorganization of economic - patrimonial interests were considered fully valid, also with reference to the property falling under legal communion, or which operate their transfer in favour of one of them in order to ensure their maintenance, affirms that agreements containing reciprocal patrimonial allocations concerning movable or immovable property are an expression of the spouses' will to regulate the economic-patrimonial effects resulting from the personal separation so that, once the legal community is dissolved for one of the causes referred to in Article 191 of the Italian civil code-with effect ex nunc-as the functional needs of the legal community to the family cease to exist, each of the spouses may well transfer his or her share, that is, the corresponding measure of his or her rights to the other, even to an unequal extent, without there being a problem of radical invalidity of the transfer act, an act that will become effective from the moment the judgment becomes final or from the approval of the separation agreements.

In conclusion

The overall property regime of the family, namely, all movable and immovable property that falls under the regime of legal community, is functional for the realization of family needs and consequently, when the bond between the spouses is terminated, there is no need to preserve the equality of the spouses in property relations.

The 'agreement formalized during the separation of spouses and then approved by the Court, by which the spouses divide in unequal parts the ownership of movable or immovable property previously falling under the legal communion, is a legitimate expression of the manifestation of the will of the spouses to regulate the economic - patrimonial effects ,unrelated to the obligations provided for by law in the case of separation by mutual consent.

Authors: Avv.Gianfilippo Chiricozzi e Alessia Donnarumma