THE MAINTENANCE OF THE FORMER SPOUSE IN A NEW JUDICIAL RECONSTRUCTION: LET’S GO LIVING IN THE PAST

Abstract

The new interpretation followed by the Italian Court of Cassation amended the consolidated evaluation criterion of the divorce subsidy over passing the fixed parameter of maintaining the standard of living enjoyed during marriage, in favour of the overall evaluation of ALL the parameters provided for by art. 5 of the Divorce Act 1970. Consequently, for the grant, reduction or even revocation of the divorce allowance, it is necessary to assess whether the former beneficiary spouse is, or not, economically self- sufficient, since it is not necessary for the former beneficiary spouse to be aseptically guaranteed the same standard of living as he or she was during marriage. In application of the rule of Art. 9 of the Divorce Act 1970 and of the "rebus sic stantibus clause" immanent to questions concerning maintenance of the former spouse, any changed factual circumstances and the new interpretative method lead to believe that there are all the elements for the re-evaluation, case by case, of the divorce situation in the light of the application of the parameters suggested by the new interpretative trend of Court of Cassation. In this way the “law in action” in Italy seems to be now perfectly in line with the rules followed in the European legal system and in the Common Law area too.