The divorce allowance is the potential obligation of one of the spouses to pay the other one a sum of money, either periodically or in a lump sum, determined by the Court on the basis of legal criteria, as a legal consequence of the divorce.
The legislation of divorce is set forth by Law no. 898/1970, according to which (Art. 5) the Court determines the amount of the divorce allowance, taking into account the following parameters:
- The financial conditions of the spouses;
- The reasons for the divorce;
- The economic and personal contributions given to family management in the course of the marriage;
- The actual income of both spouses;
- The duration of the marriage.
The obligation of divorce allowance – therefore the assessment of these parameters – is only imposed when the other spouse does not possess adequate means for being self-sufficient. In this regard, it will be necessary to evaluate the inadequacy of the means or the impossibility of obtaining them for objective reasons.
With regard to this point, the Italian Supreme Court (judgement no. 11504/2017) has identified four parameters to establish economic self-sufficiency of the weaker spouse:
- Possession of any type of income;
- Possession of assets;
- The ability and actual possibilities of working;
- The availability of a house.
Therefore, the traditional criterion of the standard of living enjoyed by the spouses during marriage is abandoned. To further confirm this position, the Supreme Court has recently ruled on this point (judgement no. 18287/2018): having ascertained the economic disparity between the ex-spouses, it is necessary to assess whether this disparity was the result of a free choice made by each party during the marriage.
Modification and termination of the divorce allowance
The divorce allowance is due until the relevant judgement is issued and then it becomes possible to ask for its recalculation at any time, if there have been significant and sudden changes in the respective incomes.
The divorce allowance is a personal right, hence it is unavoidable and irrevocable. The only conditions tor its termination are those of bankruptcy or death of the ex-spouse.
Divorce allowance vs alimony
The alimony must be distinguished from the divorce allowance: the first, in fact, is placed in the hands of the economically weaker spouse, only after separation, thus placing itself in a moment prior to that of the divorce judgement.
The criterion according to which the alimony is determined is mainly the life standard of the weaker spouse during the marriage, allowing the beneficiary to maintain those same conditions after separations.