Spousal Maintenance for Ex-Spouse Devoted to Children’s Care

Spousal Maintenance for Ex-Spouse Devoted to Children's Care

According to the Court of Cassation, spousal maintenance is granted to the ex-spouse who dedicated themselves to the care and education of the children and is therefore unable to engage in employment. The compensatory and equalizing functions of spousal maintenance.

Spousal maintenance is awarded to the ex-spouse based on their contribution to the accumulation of the husband’s assets, considering their commitment to caring for and educating the children throughout the marriage. This choice was mutually agreed upon with the former spouse, which hindered their ability to pursue employment. The Court of Cassation affirmed this in its order no. 13224/2023 (attached below), declaring the man’s appeal against the appellate court’s decision to pay a monthly spousal maintenance of over 2,000 euros, including the amount for the ex-wife’s housing expenses, as inadmissible.

This ruling was influenced by the substantial profitability of the husband’s restaurant business and ownership of various properties. In contrast, the ex-wife had made significant contributions to the family by caring for and raising their three children throughout the 25-year duration of the marriage. This, in turn, contributed to the considerable increase in the husband’s assets during the marriage. Therefore, the spousal maintenance served the functions of assistance, compensation, and equalization (referring to SU no. 18287/18).

The man then appealed to the Palazzaccio, alleging, among other things, a violation of the principles of Law no. 898/70, as the appellate court failed to determine the ex-wife’s lack of means and the objective impossibility to acquire them, considering that she never sought employment despite having the opportunity. The court found that the ex-wife’s child-rearing activities alone were insufficient to justify spousal maintenance.

However, according to the Court of Cassation, when faced with a spousal maintenance claim, the appellate court must establish the requesting ex-spouse’s inability to live independently and with dignity, as well as the need to compensate them for their particular contribution to the accumulation of joint assets or the other spouse’s assets during the marriage. This imbalance should be based on the shared choices and roles made during the marital life. The spousal maintenance must also be adequate to compensate the economically weaker spouse for the sacrifices made by foregoing realistic employment opportunities, which the claimant has the burden to demonstrate in court (Cass., no. 38362/21).

Furthermore, it has been stated that, concerning the determination of spousal maintenance, the principle that each ex-spouse must provide for their own support after the dissolution of the marital bond is derogated when one ex-spouse is not self-sufficient or when the marriage caused an unjustified transfer of assets from one spouse to the other, which must be rectified by granting an allowance as a compensatory-equalizing measure. This allowance should be sufficient to compensate the economically weaker spouse for the sacrifices made by foregoing realistic employment opportunities, and the claimant has the specific obligation to indicate and demonstrate such sacrifices in court (Cass., SU, no. 18287/18; no. 23583/22).

In the present case, in accordance with the aforementioned principles established by jurisprudence, the second-instance judge deemed that the respondent was entitled to spousal maintenance as determined, based on the irrefutable grounds that the woman had dedicated herself to the care and education of three children throughout the marriage, as mutually agreed upon with her former spouse, which prevented her from engaging in employment. Consequently, the spousal maintenance was properly awarded to the respondent, in its compensatory and equalizing form, considering the income and asset disparity between the ex-spouses

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