Delibazione e divorzio nella giurisprudenza della Cassazione: il difficile bilanciamento tra attuazione della normativa concordataria e tutela del coniuge più debole

Abstract

The 1984 Agreement with the catholic church modified the rules for implementing canonical sentences of nullity of marriage in the Italian legal system, introducing several controls among wich over time the non- contradiction to Italian public order of such sentences has acquired increasing importance. In recent years, this requirement has been interpreted by the jurisprudence of the Supreme Court in an increasingly restrictive manner in order to limit the recognition proceeding as much as possible, with the aim of avoiding the economic consequences more unfavorable deriving from the nullity of the marriage for the spouse who would have been entitled to maintenance allowance in the event of divorce. The work focuses on the relationship between recognition of canonical nullity and divorce, and analyzes the repeated interventions of the Court of Cassation to prevent that with the exequatur procedure the economic measures taken in the divorce judgment could be annulled. The protection of the weaker spouse was made even more complete by the recent ruling of the United Sections of the Supreme Court of 2021 that allowes the treatment of economic issues still pending, provided that the divorce decree between the parties was pronounced before the exequatur of the ecclesiastical sentence of marriage nullity.