Premarital Cohabitation’s Impact on Divorce Alimony Determination

Premarital Cohabitation's Impact on Divorce Alimony Determination

In a significant legal development (refer to attached case no. 35385/2023), the United Sections of the Cassation Court have underscored the importance of factoring premarital cohabitation into divorce alimony calculations. This ruling asserts that when a sustained connection exists between the “de facto” phase of cohabitation and the “legal” phase of marriage, the duration of premarital cohabitation must be considered in determining alimony.

Premarital Cohabitation and Alimony Calculation

The Cassation Court recognized premarital cohabitation as a culturally rooted phenomenon, increasingly shaping societal behaviors. The court emphasized that when premarital cohabitation extends over time and establishes a “consolidated” division of domestic roles, causing imbalances that project into future marriage and divorce scenarios, it becomes a crucial factor in alimony calculations.

Alimony Determination Criteria

Before delving into the specific issue of including premarital cohabitation in alimony calculations, the court revisited the evolution of alimony determination criteria. Referring to the landmark ruling of Cassation Court, United Sections no. 18287/2018, the court highlighted the abandonment of the distinction between “attribution criteria and determinative criteria for divorce alimony.” The judge, according to this framework, is tasked with assessing the adequacy of means by comparatively evaluating the economic and patrimonial conditions of both parties. This evaluation considers the contributions each party made to family life and the formation of shared and individual assets.

The court emphasized that the concept of self-responsibility is not confined to the end of a marriage but extends throughout its entirety. From the early stages, where foundational choices are made, to subsequent phases where these choices are revisited, the responsibility remains shared. As the relationship concludes, individual self-responsibility becomes paramount, necessitating both parties to secure means for independent and dignified living, particularly for the economically weaker party.

Impact of Premarital Cohabitation

The heart of the court’s ruling addressed the grievances raised by the ex-wife, who argued that the Court of Appeals in Bologna had not considered her economic and personal contributions before the marriage. The United Sections confirmed that while marriage and cohabitation are distinct, they still entail familial obligations, even after the legal or de facto union dissolves.

In conclusion, the court, in a 41-page decision, established the legal principle that, in cases where marriage is preceded by stable and continuous premarital cohabitation involving shared life choices and contributions, the duration of premarital cohabitation must be considered for alimony determination. This includes evaluating shared choices that shaped life within the marriage and determining the causal connection to sacrifices or compromises, especially in the economically weaker party’s professional life. The court, therefore, accepted the appeal concerning the inclusion of premarital cohabitation in divorce alimony calculations.

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