26 February 2024

Family Sacrifice Justifies Alimony

Boccadutri International Law Firm


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The Supreme Court has conclusively affirmed the acknowledgment of one spouse's sacrifice for the benefit of the family unit as grounds for awarding alimony rights.
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The Supreme Court has conclusively affirmed the acknowledgment of one spouse's sacrifice for the benefit of the family unit as grounds for awarding alimony rights.

Alimony is an institution in constant evolution, usually linked to a support role but that can also be determined by acknowledging the requesting spouse's role in the couple's life.

The Supreme Court of Cassation has rendered numerous decisions over time regarding the evolving interpretation of financial compensation awarded to one of the former spouses, reflecting its intended purpose's dynamic nature.

To reach the current interpretation of alimony as compensatory-equalizing, it was necessary to overcome an ingrained belief of maintaining the marital standard of living which, in the case of affluent couples, translated into generous monthly payments.

As times changed, so did the vision of what the alimony should represent, namely assistance to the financially struggling ex-spouse from the economically stronger spouse, in light of the times when they shared life and income.

The right to receive alimony did not exist if the requesting ex-spouse seeking it is self-sufficient, taking into account their age and career qualifications: if you are young, in good health, and have the skills to easily secure employment, you do not require the financial support from someone who no longer has obligations towards you.

Recent judgments continue to follow the idea of alimony destined for those in need and in an amount sufficient for a dignified life; but another path opened by the Cassation is the assignment of a compensatory-equalizing function to the alimony, for the spouse's contribution during the marital life.

This translates into the recognition of the sacrifices made by one of the spouses, during family life, in giving up their professional fulfillment in favor of the other's career.

The Compensatory-Equalizing Function

The direction of the Cassation, established by judgment no. 18287 of 2018 by the Joint Sections, has paved the way for the current view.

Within this framework, it was clarified that "the purpose of alimony, as designated by the lawmakers, is not to restore the standard of living experienced during the marriage. Instead, its aim is to acknowledge the economically disadvantaged ex-spouse's role and contributions towards building the family's wealth and the personal assets of both ex-spouses."

Through divorce alimony, it is possible to recognize a form of compensation for the sacrifices made by one spouse for the benefit of the family. These sacrifices enabled the other spouse to pursue personal and professional development, which underpins their capacity to generate income and, more broadly, contributes to the family's financial well-being.

As long as the family remains united, both benefit from the family wealth and its standard of living, but at the time of divorce, the sacrifices of one of the spouses would be literally nullified, and the financially disadvantaged spouse would cease to benefit from them.

This applies to both men and women, as evidenced by the order no.10016 of the Court of Cassation, dated April 14, 2023: "It is legitimate to recognize alimony to a husband for having supported his wife in her professional journey allowing her to graduate and then advance her career."

The Judge believed that the income disparity between the two ex-spouses was attributable to marital life choices, and that the man's sacrifice was such as to justify a compensation or equalization through the recognition of divorce alimony.

For the judge to decide in favor of granting alimony, the requesting party must still prove in court that the economic imbalance with the ex-spouse is due to their own professional sacrifice, which resulted in giving up "realistic professional-income opportunities" to "concretely meet family needs," as per order no. 17577 – Civil Cassation, sec. I of June 20, 2023.

The renunciation of professional or work opportunities must be concrete and causally attributable to marital life choices.

The burden of proof always lies with the requester.

For example, the Court of Cassation recognized the entitlement to alimony for a wife who, although she worked during the marriage, had to give up career opportunities to take care of the children.

In particular, the Court found that the wife had given up a job offer in another city, which would have allowed her to improve her professional position and therefore considered that such renunciation had caused a significant economic imbalance for the woman, compared to that of the husband.

When the Spouse Who Sacrificed Their Career Qualifies for Alimony?

As emerged from the cited judgments, alimony can be recognized to the spouse who gave up their career in two possible situations:

  • The ex-spouse, although having worked, still gave up professional opportunities, sacrificing their possible professional growth, to dedicate themselves to the care of the family and the management of the home.
  • The ex-spouse, although not having worked during the marriage, contributed to the professional growth of the partner, allowing them to focus on their work and achieve a high-income level.

The contribution could have been economic, professional, or domestic.

It is up to the judge to assess, case by case, the relevance of such sacrifices and their impact on the economic situation of the ex-spouse.

Criteria for Granting Alimony

It is not enough that a financial-economic imbalance is created between the ex-spouses following the divorce and that such imbalance results from the non-realization of one of the two in favor of the other, for the right to alimony to be recognized, other determining factors must always be taken into account, namely:

  1. Duration of the marriage: The duration of the marriage is "crucial" to be able to talk about the contribution to the formation of the common wealth and/or the wealth of the other spouse.
  2. Age of the requesting/entitled spouse: The age of the requesting spouse is related to the labor market, in terms of considerations on the actual professional and income potential.

The criteria for granting alimony concern exclusively the ex-spouses and have nothing to do with other types of obligations for the maintenance of children, or in the separation phase, for those, please refer to our "Guide to Maintenance Allowance, separation, and divorce".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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