Emanuele Bilotti, full professor of private law at the European University of Rome
Of Emanuele Bilotti*
A decision of the Supreme Court of Cassation is arising in public opinion which deemed the validity of an agreement between spouses, through which Her husband recognized that his wife contributed with her own salary to the well -being of the family and to the payment of the costs for the renovation of an apartment owned exclusively by the same husband And he therefore obliged himself to correspond to a sum of money of almost 150,000.00 euros in the event of separation.
It is observed that with this decision the Supreme Court has now passed its attitude of clear closure against the premarital agreements, that is, of those agreements concluded between spouses – or even between Nubndi – aimed at regulating their patrimonial relationship in advance in the event of a future marriage crisis.
In reality, as the decision in question recalls, Already in a 2012 precedent the Supreme Court had considered his wife’s commitment validassumed before the wedding, to pay the husband a sum of money and to transfer the property of a property in case of possible separation as compensation of the expenses incurred by the husband to renovate the marital house owned by his wife. In a precedent of 2013then, also referred to by the decision in question, the Supreme Court had recognized the validity of a loan granted by his wife to the husband at the time of marriage with an obligation to return in the event of separation.
The decision in question therefore seems to fit into a consolidated jurisprudential vein. In certain agreements, the Supreme Court has long recognized a legitimate expression of the autonomy of the spouses. In fact, these are agreements aimed at pursuing lawful interests. And therefore certainly worthy of protection. Moreover, assets intended for the renovation of a property of exclusive ownership of the other spouse, as they exceed the measure of the contribution due between spouses and arranged in the shared prerequisite of the stability of the marital relationship, would however require the operation of a equalization remedy in the event of a divorce.
In any case, the unavailability of the right to the economic treatment of divorce remains, at least to the extent that this treatment performs a welfare function for the economically disadvantaged spouse. And therefore responds to mandatory solidarity needs. This is a principle that even the decision in question reaffirms clearly in accordance with the previous recalled. The agreements in question can undoubtedly affect the determination of the divorce allowance. However, the entity of a food allowance in the presence of the legal conditions is out of the question, while the agreement that provides for a payment lump sum It remains subject to judicial control.
Then there is the problem of guaranteeing the right compensation of the sacrifices for the familyon whose importance also the Supreme Court draws attention from an important judgment of 2018 on the purposes of the divorce allowance.
The fundamental principle of moral and legal equality of spouses requires that they “Come out” from marriage in balanced and consistent patrimonial conditions with their common life choicestaking into account the skills, even potential, enjoyed at the beginning of the relationship. To this end, however, a mechanism of equal redistribution of the wealth created in marriage at the time of its dissolution – this is needed the legal regime of communion of goods – is perhaps even more important than the divorce allowance.
In this perspective The choice made by the 1975 legislator to allow the spouses to opt for the separation of goods with a simple declaration made at the time of the celebration of the wedding seems inadequate in its time. It is an Italian peculiarity. In the various regulations of continental Europe, in fact, to guarantee adequate weighting in the assumption of such a significant choice, the equal lawyer regime can be derogated only by notarial deed.
In Germany, then, to this formal bond placed in the autonomy of the spouses, jurisprudence also added a substantial limit limit. The agreement with which the spouses have opted for the separation of the goods is, in fact, subject to a penetrating judicial union which, also in consideration of surviving circumstances, can determine its ineffectiveness or in any case a remodeling of its contents in order to guarantee the right compensation to the sacrifices made for the family.
The recognition of the autonomy of the spouses in the regulation of their asset relationships following the divorce cannot therefore question the postconal solidarity or the right compensation of the sacrifices made for the family.
*Full Professor of Private Law at the European University of Rome
