When two spouses separate by mutual consent, the agreement they sign may contain, in addition to a necessary part, also a possible part. The necessary part consists of the decision to live separately, the custody and placement regime for the children and the maintenance for the children and the spouse, if the conditions exist.
The necessary part is, in other words, what is normally found in a separation agreement and which would constitute the content of the separation even if the judge were to decide. The possible part, however, concerns patrimonial issues that the spouses decide to define on the occasion of the separation, but which are not essential to regulate the separationfor example the agreement to put the beach house in the children’s name or to put the co-owned family house up for sale in the future. The difference between the necessary part and the possible part is not only terminological and formal, because the decisions that fall within the necessary part can be modified in the future, if the conditions change, while those contained in the possible part, however, cannot, since it is a contractual agreement that the parties have voluntarily signed and to which they are bound.
Recently, the Court of Cassation once again underlined the distinction by dealing with a case in which, upon separation, the husband had undertaken the commitment to pay in full the mortgage loan on the marital home, until it was repaid. Some time later, at the time of the divorce, the husband had asked for this obligation to be revoked because, according to him, the financial needs of the children had changed.
The Court of Cassation rejected her request, interpreting the commitment that the husband had undertaken as independent of the needs of the family and children. The husband, in fact, had undertaken to pay the mortgage not until the children became economically independent, but until it was repaid. Therefore, the commitment undertaken could not be considered as a form of maintenance, but as the expression of an agreement freely entered into between the spouses for the regulation of their property matters which saw the separation only as an opportunity for their definition.
So, be careful when signing a separation agreement that contains financial clauses because not everything that is inserted can be changed during the divorce or with an appeal for modification of the separation conditions.
