Divorce allowance in favor of former spouse and maintenance allowance in favor of child – standard of living, by Martina Lorenzotti, PhD student in "Legal and Social Sciences" - "Civil Law And Constitutional Legality", University of Camerino

15 October 2020

Cass. civ., sez. I, ord., n. 15774 of 23.7.2020

With sent. n. 15774 of 30.1.2020, filed in the registry on 23.7.2020, the Supreme Court of Cassation, I sect. civ., established that the standard of living during cohabitation with family must be considered for the determination of maintenance allowance in favor of child, unlike what happens in the determination of divorce allowance for former spouse, in which the standard of living is no longer contemplated.

In the present case, with sent. n. 3385/2015 the Court of Appeal of Milan partially reformed the Court of Lecco’s sentence, establishing child’s placement regime, parental responsibility and payment of expenses, confirming the amounts of the divorce allowance and child allowance already determined in the first instance. An appeal was filed against this provision at the Court of Cassation based on seven reasons in relation to suspected violations and/or omitted application of articles of law – to cite a few examples – the inexistence of the conditions for the recognition of the divorce allowance, the irrelevance of the consistency of the assets of the spouses’ families, the lack of motivation in determining the allowance in favor of the child in the absence of evidence of his increased needs.

Of particular interest here is the Court’s recognition of the welfare function of the divorce allowance (see p. 10.1 of the above-mentioned sentence in question), that is parameterized on:

- the prior assessment of the economic and financial situations of the parties (see also Cass. civ., sez. VI, ord., n. 10647 del 5.6.2020);

- the contribution given by the parties in the formation of the common assets and personal assets;

- the duration of marriage and the age of person entitled.

Conceived in this way, the divorce allowance allows to obtain “[…] the concrete achievement of an income level adequate to the contribution provided in the realization of family life […]”, (see p. 9 of the above-mentioned sentence in question), therefore the innovative approach of the Court departs from the previous principle of maintaining the standard of living held in constant marriage, recognizing grater centrality to the role and contribution given by the former spouse in the formation of family and personal assets (see also Cass. civ., sect. VI, ord., n. 11202 of 11.6.2020; Cass. civ., sect. I, ord., n. 5605 of 28.2.2020; Cass. civ., sect. I, ord., n. 5603 of 28.2.2020; Cass. civ., sect. I, sent., n. 32398 of 11.12.2019; Cass. civ., sect. VI - 1 ord., n. 26594 of 18.10.2019; Cass. civ., sect. I, ord., n. 22555 del 10.9.2019; Cass. civ., sect. I, sent., n. 21234 of 9.8.2019; Cass. civ., sect. VI, ord. n. 16796 of 21.6.2019).

However, what provided with regard to the determination of the maintenance allowance in favor of child is different: indeed, the Court highlighted that this is the responsibility of parents and must take place in proportion to their income, relating it to the child’s needs and measuring it to the standard of living held during the cohabitation in family.

In conclusion, what most distinguishes the divorce allowance from the maintenance allowance is the following function: while the maintenance allowance is aimed at guaranteeing a constant economic amount in order to allow the growth of offspring, satisfying the daily and primary needs, such as education, the divorce allowance shows a welfare nature, equalization-compensatory payment and thus it represents an economic amount given to the former spouse as recognition of the contribution given to the family, also evaluating – in case – the professional sacrifices made.