The latest Italian Embassy survey estimated that more than 500,000 Italians currently live in England and Wales.
It follows, therefore, that the number of divorces involving the Italian jurisdiction have risen significantly in recent years, and English lawyers are increasingly facing the alternative of filing a divorce petition in Italy rather than in UK, accordingly to the more convenient forum for the client.
It can often be difficult to explain the differences to clients between the two legal systems, and the financial implications of filing a divorce in one country rather than the other. However the consequences could not be more different.
In Italy it is not in the court’s powers to share the family assets. The only decision an Italian judge can make on financial issues is the provision of a monthly maintenance payment, not even a lump sum as that can only be agreed by the parties themselves.
The question for English lawyers is how is this maintenance determined?
The principles are contained in Article 5 of law n. 898/1970, the relevant Italian legislation.
This law has been recently the focus of a corner-stone decision by the Court of Cassation pronounced on 11 July 2018 that explained, once and for all, how the criteria in Article 5 should be interpreted by local courts in order to decide whether a spouse is eligible to, and if so, what factors to take into account in deciding the amount of the monthly payment.
The previous approach – crystalized by another decision of the Court of Cassation on 10 May 2017 – was based on two-stage reasoning: a) the an debeatur phase (i.e. deciding IF the weaker financial party is entitled to receive a maintenance payment by the other side) and b) a quantum debeatur phase (i.e. determining HOW MUCH the amount of the maintenance should be).
In terms of the first stage, the principle to keep in mind was the “adequacy of the assets” of the weaker spouse to provide to his/her own maintenance according to the “financial self-sufficiency” principle.
Only when this test was successful (because the spouse did not have any financial resources) could second stage of judicial analysis begin, the quantum debeatur phase. In this stage, different principles had to be taken into account such as the standard of living enjoyed by the family during the marriage, the earning capacity of the spouse seeking maintenance, his/her age, background, health conditions and the contribution given during the marriage to the family and to the other spouse’s wealth. The consequence of this approach was that it penalised the weaker party who had enough assets and income to provide his/her own maintenance but to a far lower level than the one he/she was used to living due to the ex-spouse’s wealth, towards which he/she also contributed during the marriage often making personal and financial sacrifices.
How many women had given up their career or had to accept a less remunerative job to look after the family in deference to the career progression of their breadwinner-husbands?
Mr A and Mrs B got married in 1978 and they legally separated in 2007 (yes, in Italy the legal separation is still mandatory!) agreeing a mutual allocation of assets but excluding any financial provision for the wife. In 2012 they got divorced and the judge rewarded the wife with a monthly maintenance of € 4.000,00 upon her request. Mr A appealed the decision and the Court of Appeal overturned the Tribunal decision basing his reasoning on the previous Cassation approach (“adequacy of assets”).
Mrs B appealed the decision to the Court of Cassation.
The United Sections of court of Cassation is the highest Italian court deciding disputes as to points of law.
In particular, a dispute had arisen on the sentence “adequacy of the assets” in Article 5, as it was not clear in relation to what the “adequacy” had to be compared. In an earlier Court of Cassation case, their approach did indeed refer to the “adequacy” of the assets in relation to the “previous standard of living” instead in relation to the “financial self-sufficiency” of the parties.
The latest decision criticises both approaches and opens the door to a third approach.
In fact, the supreme judges stated that considering only the principle of the “previous standard of living” in the an debeatur stage could lead to a spouse unreasonably asking for maintenance in cases where no contributions had been made towards the increase of family’s assets, with the consequent risk being that the general “irresponsibility” of the financially weaker spouse was legitimised.
On the other hand, looking just at the principle of the “financial self-sufficiency” the principle of equality of the spouses could be affected, with the risk that choices made together during the marriage could have negatively impacted only on one party’s future life as divorcee.
The decision upheld that a lawful approach should instead take into account all the principles listed in the Article 5, without any reference to the an debeatur and quantum debeatur phases. All the following principles need to be considered at the same time in determining the entitlement of the spouse to maintenance: the parties’ financial situation, the reasons for the breakdown of the marriage, both parties’ contribution to the family and to the family’s assets, and the duration of the marriage. Once all of those facts have been proven by the party asking for maintenance the judge will decide whether the petitioner has “adequate assets” in comparison to the other spouse.
Divorce maintenance in Italy is no longer purely of a welfare nature - based on the disproportion of spouses’ assets or the personal conditions of the one asking for maintenance. It is now seen as a compensative-profitable sum, as a reward for all the ex-spouse’s sacrifices and commitment during the matrimonial years for the good of the other and the whole family.
It means that where there is a significant gap between the spouses’ financial resources, the judge has to investigate whether this is connected to the choices and sacrifices made by the parties during the marriage. Subsequently, the amount of the payment should reflect the contributions given by the weaker spouse to the family, taking into account his/her sacrificed professional expectations, the duration of the marriage and the age of the spouse.
Italian decision-making on spousal maintenance is certainly moving closer towards established English principles. However, it remains the case that, as regard the majority of matrimonial law, the two jurisdictions could hardly be more different.