REVOCATION OF THE TRANSFER OF PROPERTY BETWEEN SPOUSES

 

Can an agreement between spouses regarding the transfer of a property be revoked, even after the separation judgment has become final? According to judgment no. 26127 of 7/10/2024 of the Italian Supreme Court, the answer is affirmative, where this act is considered prejudicial to creditors. The latter, in fact, can act in revocation if they demonstrate that the real estate transfer was carried out in faith with their rights, regardless of the final nature of the separation judgment. In this regard, Article 2901 of the Italian Civil Code states that the creditor, even in the presence of a credit subject to condition or term, may request that the acts of disposition of the debtor that prejudice his reasons be declared ineffective against him be declared ineffective against him. 

 

In the case examined by the Court, the husband had transferred to his wife his share of ownership of the marital home, based on an agreement stipulated during the pending judicial separation process. The creditor bank was taking legal action to protect its credit, claiming that it was an act affecting its credit. The husband claimed that the transfer of the quota derived from a final judgment and not susceptible to revocation pursuant to Article 2901, third paragraph, of the Italian Civil Code. In the first instance, the Court declared the lack of active legitimation of the plaintiff. 

 

However, the Court of Appeal of Genoa overturned the decision, considering the revocation action admissible, noting that the transfer was not qualified as a legal obligation to transfer and, therefore, did not enjoy the protections reserved for onerous acts. 

 

An appeal was proposed in the Supreme Court based on two points:

1) the nature of the act (not free of charge, but a mandatory act deriving from the maintenance obligations established by the separation judgment)

2) the legitimacy of the creditor party to act, arguing that the credit could not be used to oppose an approved separation agreement. 

 

The Italian Supreme Court rejected both grounds, clarifying that the agreement between the spouses, even if transposed in a judgment, retains its negotiating nature and, therefore, can be the subject of appeal by creditors through the revocation action. The Supreme Court recalled two legal precedents. The judgment no. 8516/2006, by virtue of which agreements between spouses during the separation have a contractual nature and can be challenged with the normal legal instruments, as well as the pronouncement of the United Sections, no. 21761/2021, according to which property agreements between spouses, inserted in a hearing report or in a judgment, are acts of a contractual nature and subject to transcription. 

 

In conclusion, where a spouse transfers one property to another pending separation and this act damages the rights of creditors, the latter can initiate a revocation action to protect their own interests. Such a remedy is admissible even after the separation judgment has transposed the agreement and has become final. 

 

The judgment, in fact, has declaratory value and does not change the negotiating nature of the agreement, which remains subject to normal appeals. In the commentary ruling, the Court made a distinction between acts for consideration and acts for free, clarifying that the revocation action does not concern the separation itself, but the specific patrimonial act that harms the creditors.

 

Authors: Avv. Daniela Di Palma and Sofia De Paolis