ASSESSMENT OF ECONOMIC IMBALANCE FOR SPOUSAL SUPPORT

 

The Supreme Court,  Section I, with judgment no. 16917/2025, has once again ruled on the issue of alimony - governed by Article 5, paragraph 6, of Law no. 898/1970, emphasizing its welfare, compensatory, and equalizing function and providing that it may be awarded in cases where the former spouse requesting it has inadequate financial means and is unable to obtain them for objective reasons.

 

This approach is part of a broad jurisprudential trend which - starting from the strongly anti-divorce stance that followed the 1970 legislative reform, which recognized divorce maintenance as an almost automatic form of financial support for spouses unable to provide for themselves - has now led to the definitive abandonment of the criterion of the ‘standard of living’ enjoyed during the marriage (Civil Supreme Court, Section I, No. 11504; Joint Divisions No. 18287), i.e., the standard of living made objectively possible by the spouses’ combined economic resources and which therefore includes all the potential deriving from the ownership of assets in terms of profitability, spending capacity, guarantees of high well-being, and well-founded expectations for the future (see S.C. 20638/2004, S.C. 5061/2006, S.C. 11494/2024).

 

In this perspective, if it is true that alimony is now granted when there is an economic and financial imbalance between the former spouses, due to the organization of married life and the individual sacrifices made by them, the Supreme Court, in line with this approach, has intended to attribute to alimony a purely welfare, compensatory, and equalizing function, clarifying that it is the responsibility of the requesting spouse to prove the existence of such imbalance and their contribution to the family's well-being. The judge is therefore required to make an overall assessment of the marital and family history, also taking into account the principle of individual responsibility.

 

In particular, in the case in question, the appellant lodged an appeal with the Supreme Court against the judgment of the Court of Appeal of Rome which, partially upholding the decision of the court of first instance ruling on the dissolution of the marriage, had ordered the latter to pay his ex-wife a divorce allowance of €2,500.00.

 

The appellant, basing his appeal on four grounds of complaint, alleged that the second instance judge had incorrectly assessed the conditions and amount of the divorce allowance, contesting, specifically, the absence of a current assessment of the former wife's financial situation and the failure to verify the compensatory function of the allowance, in addition to the fact that, according to the appellant, the grounds for the appeal appeared apodictic as they lacked concrete arguments on key points.

 

Finally, the quantification of the allowance and the reconstruction of the actual duration of the marital cohabitation were discussed (the Court of Appeal of Rome had considered 39 years of marriage, ignoring that the de facto separation dated back to 2000, with a consequent actual cohabitation of 24 years), which was considered decisive for the recognition of the allowance for equalization and compensation purposes.

 

The Supreme Court, in rejecting the appeal on the grounds that the Regional Court had adequately taken into account the results of the preliminary investigation and correctly compared the economic conditions of the spouses in terms of assistance and equalization-compensation, reiterated, on the basis of other previous court rulings, that the award of alimony always presupposes an assessment of the inadequacy of the means of the former spouse applying for alimony and the impossibility of obtaining them for objective reasons.

 

The judgment must be made in light of a comparative assessment of the economic and financial conditions of the parties, taking into account the contribution made by the applicant to family life and the formation of the common assets.

The Supreme Court, therefore, in accordance with established case law, emphasized that the award of alimony must inevitably be based on a financial imbalance between the former spouses and that the burden of proof in court always lies with the applicant.

 

Therefore, a rigorous assessment must be carried out to verify whether the imbalance existing at the time of the divorce is the result of a sacrifice made by the weaker spouse in favor of family needs, thus justifying the recognition of an “equalization” allowance aimed at remedying this income imbalance.

 

Authors: Avv. Gianfilippo Chiricozzi e Matteo Carusi