THE PERSONAL EFFECTS OF DIVORCE
With the dissolution of the marriage bond, all marital duties cease.
The wife loses the right to use her husband's surname, but the court can always authorize its
preservation if there is a deserving interest of children. The right ceases with the woman's
transition to remarriage. The right to use the husband's surname may also be based on
principles governing pseudonym, firm, trademark.
In case of wrongful use, the husband may resort to the general remedies for name
protection, requesting the cessation of the tortious act and possibly compensation for
damages.
Parent-child relations: the same principles operate in practice as in separation matters:
parents are obliged to instruct, educate and maintain their offspring; the offspring is entrusted
to the parent who is found to be best suited to look after their interests; joint or alternate
custody is permissible, or if the parents are found to be unfit to care for the children, the court
may order family custody.
The noncustodial parent must contribute to the maintenance of the children by paying the
other parent a periodic allowance: the same safeguards are provided to ensure payment as
for the allowance placed by marriage.
The exercise of parental authority and legal usufruct over the child's property rests with the
custodial parent, while the other parent must supervise the actions, addressing
if necessary to the court it is believed that a particular decision may be detrimental to the
child..
In the case of alternate or joint custody, the exercise of parental authority rests with both
parents: in this case, the rules for cohabiting spouses will apply (see 11.3). If the custodial
spouse does not comply with the conditions set by the court, there may be a review of
custody if his or her behavior is detrimental to the offspring.
8.6. PROPERTY EFFECTS.POST-MARITAL ALLOWANCE.
Divorce involves major changes in the property relations between former spouses.
The divorced spouse has the following rights:
(a) Post-marital allowance.
(b) Social security protection
(c) Inheritance allowance from the estate of the deceased former spouse
(d) Housing in the family home.
1) Post-marital allowance: it has undergone great changes since the 87 reform. Before the
reform, in fact, the judge granted the allowance taking into account the economic conditions
of the spouses, the reasons for the decision, and the personal and economic contribution
that each spouse made to the household and to the formation of the assets of both.
Thus, depending on the case, the allowance had a welfare (a), compensatory (b), and
compensatory (c) function.
After the reform, however, this allowance can only be liquidated if the spouse does not have
adequate means. In addition, the court must also take into account the reasons for the
decision, the personal and economic contribution made by each spouse to the household is
the duration of the marriage. Thus, the allowance has now assumed a welfare nature,
intended to help the former spouse who, after the divorce, found himself or herself in an
economically difficult situation.
The other criteria, on the other hand, can only affect the size of the settlement amount, but
cannot justify the granting of the allowance.
The postnuptial allowance is different from that previously granted to the separated spouse,
although the latter must be kept in mind as a useful parameter for better assessing the
economic situation of the spouses.
In order to determine in which cases one can speak of "lack of adequate means" on the part
of the spouse requesting the allowance, many argue that the postmarital allowance should
not allow the spouse to continue to enjoy the same standard of living maintained during
marital cohabitation, but should only ensure decent maintenance. In particular, a former
spouse who lacks substance or income and cannot actually obtain it through his or her own
work is lacking in means.
In order to judge the other spouse's ability to pay the allowance, reference must be made to
the income and substance he or she has, thus including unproductive assets of income, in
addition to the fact that the expenses and obligations on his or her assets must also be
considered.
In order to ascertain the economic condition, the parties must present in court the income
report and any other relevant documents. If disputes arise, the court may order investigations
through the tax police. It is up to the spouse suing for the check, however, to prove his or her
state of need and the other's ability to pay it.
If the allowance is also to be compensatory in nature, the reasons that caused the dissolution
of the marriage, i.e., both the reasons from which the intolerability of cohabitation and the
consequent pronouncement of legal separation arose, and the subsequent conduct that
caused the irreversibility of the crisis, assume relevance. Therefore, the judge may decrease
the amount of the allowance arranged in favor of the spouse responsible for the divorce or
increase the allowance to be paid by him or her to the other spouse.
The compensatory criterion, on the other hand, entails the possibility of an increase in the
amount settled in favor of the spouse who, by his or her own personal efforts or through his
or her own property, has favored the enrichment of the other spouse.
The end the court will have to take into account the duration of marital cohabitation, as an
element involving greater or lesser habituation of the spouse to the enjoyment of the marital
standard of living.
Regarding the commencement of the allowance, under the rules introduced in '87, it was
determined in the first instance judgment determining the amount of the allowance is
provisionally enforceable with respect to measures of an economic nature, but the court may
also determine that
the allowance shall run from the time of the court application.
The allowance is usually settled by a periodic sum. In this case, the court must establish a
criterion for automatic adjustment of the sum, with reference to monetary devaluation indices.
The parties, however, can also agree to pay the check in a lump sum, but the court must
verify the fairness of the agreed amount. This mode of payment has the advantage of limiting
the risk of default and does not allow the recipient to later make economic claims against the
fulfilling spouse.
To ensure the payment of the allowance, the court may require the obligor to provide a
security in rem or personal guarantee if there is a danger of default; he or she may also order
the seizure of the obligor's property. The judgment liquidating the check constitutes title to
register a judicial mortgage. The creditor has a general lien on the debtor's movable property.
The allowance may change, either because of the changing purchasing power of currency or
because of changes in the creditor's situation of need or the debtor's economic condition (the
liquidation of the allowance is subject to the rebus sic stantibus clause common to all
benefits aimed at meeting a person's living needs).
The right to the allowance is extinguished by the death of one of the parties, by the economic
impossibility of the obligor, by the cessation of the state of need, and by the creditor's
transition to remarriage.
8.5. SOCIAL SECURITY PROTECTION, INHERITANCE RIGHTS, RIGHTS TO THE
FAMILY HOME.
Social security protection: the divorced spouse is entitled to enjoy reversionary benefits, i.e.,
he or she is entitled to receive the disability or old-age pension due to the deceased former
spouse and other allowances having a social security nature (e.g., severance pay). However,
three basic prerequisites must be met:
1. The employment relationship must have arisen before the judgment of dissolution of
marriage;
2. The spouse claiming it must not have remarried;
3. The spouse must be the holder of the postmarital allowance (Article 9, Divorce Law).
In particular, this link between postmarital allowance and pension treatment is justified,
because it is necessary that the claimant spouse is in a situation of economic hardship.
Thus, the right to receive the pension is independent of the right to receive the postmarital
allowance and does not represent continuation.
The former spouse becomes a creditor of the payer, and the allowance remains subject to
the pension rules (example: it takes effect from the month following the death of the spouse
who was entitled to it, and its amount is subject to automatic equalization; the rules of
cumulation operate...).
If only the former spouse survives among those entitled to the reversionary benefit he or she
will be entitled to receive the entire pension, while if the deceased's spouse or a plurality of
former spouses, who are eligible
to receive the pension, it should be divided among all of them in proportion to the duration of
the marriage.
In fact, some have argued that the duration of the marriage is not the only criterion, as the
distribution between spouse and former spouse had to be made on the basis of a strict
mathematical calculation, while others felt they should also refer to the economic situation of
those eligible. The Supreme Court had intervened to settle the conflict and opted for the
solution that gave prominence only to the criterion that of the duration of the marriage. The
Constitutional Court, however, rightly stated that the court must also take into consideration
the economic condition of the claimants in a balancing function. The latter solution is more in
line with Art. 9
No. 3 Divorce Law, where it emerges that the judge, in distributing the pension, must take
into account the duration of the relationship but not decide solely on the basis of this
element.
If there are other persons entitled to the reversionary pension, the distribution in which the
former spouse also participates is made according to the criterion of need set by Art. 2122,
Paragraph 2 of the Civil Code.
The right to the pension is extinguished with the transition to remarriage of the former
spouse.
Severance pay: the divorced spouse, who is entitled to the postnuptial allowance, is also
entitled to 40% of the severance pay received by the other spouse after the divorce decree
and relating to the period during which employment relationship coincided with marriage.
Succession rights: the dissolution of marriage causes the loss of all rights that the law gives
on the succession from the former spouse, except for an allowance of
alimony character from the estate of the deceased spouse (legate ex lege). There must,
however, be two basic elements:
(a) The surviving former spouse must be in need at the time of the opening of the
succession.
(b) The former spouse must have been entitled to the postnuptial allowance, and this
allowance must not have been settled in a lump sum.
In determining the postnuptial allowance, account must be taken of the substance of the
estate, the number and quality of the heirs, and their economic conditions. It is at the same
time welfare and inheritance in nature and remains entirely independent of the postnuptial
allowance (inheritance allowance is to be paid on the basis of inherited substances,
postnuptial allowance on the basis of the obligor's income).
The allowance may be paid periodically or, by agreement of the parties, also in a lump sum,
resulting in the extinguishment of any future claims. Similar to the postmarital allowance, the
periodic allowance is subject to change.
The right is extinguished by the obligor's transition to remarriage or by the cessation of the
holder's state of need, but will arise again if this state reoccurs (Article 9a, Divorce Law).
Rights to the family home: the divorced spouse may be granted the right to inhabit the family
home. This is a novelty introduced by the '87 reform (Article 6, No. 6, Div Law).
This right belongs preferably to the spouse who has custody of the children or with whom the
children live together beyond the age of majority.
However, the needs of the weaker spouse must also be taken into account, so the right may
also be granted to the noncustodial spouse if his or her need is prevalent.
This right may change as a result of the change in the situation of the parties, while it is
extinguished by the transition to remarriage of the spouse or by a court ruling that ascertains
the lapse of the reasons on which the allocation in enjoyment was based, as well as the
lapse of the title on which the enjoyment of the nonallottee spouse was based (e.g.,
expiration of the term of the lease).
9.ALIMONY. NOTION, BASIS AND CHARACTER OF THE RIGHT TO ALIMONY
Alimony is defined as the provision of the means of support necessary for a person to lead a
dignified life.
The right to receive them originates either from the law (so-called legal alimony) or from a
transaction, such as alimony bequest or alimony annuity.
The legal obligation of alimony is placed on relatives by virtue of the solidarity that arises
from belonging to the same household. Family solidarity can also be traced back to the right
to maintenance, which sometimes arises in favor of members of the nuclear family: it differs
from the right to alimony in that it gives the holder the opportunity to demand from the obligor
the payment of means of support that enable him or her to enjoy even a comfortable
standard of living.
For the most part, the legal alimony relationship exists between relatives bound by a family
bond of lesser intensity than that characterizing maintenance.
The legal obligation, however, can also arise between strangers (at the expense of the
donee and in favor of the donor who comes into need).
The right to alimony can be framed among the fundamental rights of the person and in
particular among the relative rights of personality. It is therefore not patrimonial in nature.
The subject of the obligation is the payment of the means needed to meet basic needs so
that a person can lead a dignified life. The benefit therefore has patrimonial content.
9.2. PREREQUISITES AND EMERGENCE OF THE RIGHT
The right to alimony arises when the following prerequisites are met:
▪ one subject must be in need.
▪ the other person. included in the legal list of obligors, articles 433-437 Civil Code, must be
in an economic condition to be able to provide for the needy person.
The state of need exists when the person does not have sufficient income to meet his or her
basic needs of life, nor is he or she in a condition to procure it, either by engaging in
employment or by claiming payment of the debts of his or her debtors, and does not have
property to dispose of in order to use the proceeds for that purpose.
Since the alimony obligation is gratuitous, the needy person is obliged to make the maximum
effort to remove himself from the situation of economic distress with his own energies, even
by performing work that is not appropriate to his social position or professional training.
The needs that must be met are those that ensure a decent standard of living (food, shelter,
clothing, medical care, transportation...).
However, the law provides for two different measures of alimony that the creditor demands:
- strict necessary, which corresponds to the minimum standard of living with dignity and is
due when the alimony obligation arises between siblings;
- necessary, which is higher than the strict necessary and is owed by all other obligors: it
may vary according to the social position of the person being fed (leisure needs are also
included in this measure).
The person toward whom the claim is made must be in a position to pay alimony, that is, he
or she must have an ordinary and current income that can meet the needs of the needy
person, after meeting his or her own and the family's living needs.
The right to alimony arises when these conditions are met, but according to case law, a
judicial or extrajudicial application by the needy person is also required (see 445 cod civ).
In reality, the request provided for in Article 445 serves only to inform the obligor in the
situation of need of the person making the claim and of his willingness to receive alimony.
From the moment of this request,
therefore, the obligor is liable for the delay in the provision of alimony.
As for the alimony judgment, the jurisdiction to decide is vested in the court of the place
where the alleged feeder or feeder has a domicile or residence. The feeder must provide
evidence of the existence of the constituent elements of the claim: family relationship, state
of need, economic capacity of the person toward whom the claim is made. While the alimony
judgment is pending, the court may place an interim allowance on the obligor, pending the
determination of the final one.
9.3. OBLIGATED SUBJECTS
The law indicates in a peremptory manner and in progressive order the persons obligated to
pay alimony (433- 437 cod civ). The obligor of earlier rank relieves the obligor of higher rank.
The ranking consists of:
1. Donee
2. Spouse
3. Legitimate, natural, adopted children
4. Next of kin, including natural descendants
5. Adoptee
6. Parents, including natural parents
7. Next of kin also natural ancestors
8. Sons-in-law and daughters-in-law
9. Mother-in-law and father-in-law
10. Germane brothers and sisters
11. Unilateral brothers and sisters
12. Former spouse to whom the marriage annulment has been imputed.
Among several obligors in of the same degree, the benefit is divided in proportion to the
economic condition of each (441, first paragraph).A spouse is obligated to pay alimony if the
other has been charged with separation. Parents owe only alimony c'is the indigent adult
child has now completed his or her educational and vocational training.
The obligation also arises with respect to children who are not recognizable, while the latter
is not obligated to assist the parents in need.
The obligation of kin is terminated when the feeder has passed into a new marriage or when
the spouse to whom the kinship derives has died without leaving children or are also
deceased.
It may happen that the same person is obligated to provide alimony to more than one needy
person. If he is unable to fulfill with respect to all of them, the judicial authority must identify
the one who is most entitled, drawing on the following criteria:
1) There must be a possibility that someone entitled may obtain the benefit from another
obligor, even of a later degree
2) Intensity of the state of need of each creditor 3)Proximity of the degree of relationship
between the debtorand
each creditor.
9.4. FULFILLMENT AND VARIATIONS OF THE MAINTENANCE BENEFIT. EXTINCTION
OF THE RIGHT
The performance of the maintenance benefit shall be effected, at the debtor's option, by
payment of an
advance periodic allowance or by taking in and keeping the creditor in his own home (art 443
cod civ), although a mixed basis may be adopted. The court may review the debtor's choice if
it considers it contrary to the creditor's interest or the law.
Alimony enjoys a favorable discipline, compared to the common pecuniary obligation, in
order to guarantee the effective destination of the benefit to the satisfaction of the creditor's
needs.
In fact, alimony is unavailable (i.e., exempt from assignment, waiver, or settlement),
unseizable, distrainable, excluded from the bankruptcy estate, and noncompensable.
The right to enforce the maintenance claim is imprescriptible.
A general lien is provided in favor of the feeder on the movable and immovable property of
the feeder, securing the payment of the allowance due for the last three months.
If a person other than the obligor has voluntarily provided for the performance, without a spirit
of liberality, he or she may bring an action of recourse against
the obligor.; in addition, the creditor, depending on the circumstances may bring subrogation
action, management of others' affairs, unjust enrichment.
In particular, subrogation action may be exercised when the maintenance benefit has been
liquidated and the creditor does not care to demand its fulfillment.
The activity of the third party alimony provider may have the characteristics of business
management only when the obligor was unable to perform. In this case, the third party may
obtain, under Article 2031, reimbursement of the expenses incurred in fulfilling the alimony
provision.
The third party may have recourse to the action of unjustified enrichment, if the conditions for
the exercise of the previous actions are not met; however, unjustified enrichment can only
arise in the case where the needy person has already made the maintenance claim.
A key feature of the alimony benefit is its variability, to prevent the obligation from being too
burdensome for the debtor or, conversely, from not fully meeting the needs of the fed.
The provision causes can be increased, if the needs of the fed have increased or his
economic conditions have worsened, but it can also be decreased, if economic conditions
have improved so are reduced needs of the creditor, if the economic position of the debtor
has deteriorated.
In addition, in the case of fulfillment by periodic allowance, monetary devaluation legitimizes
the claim for adjustment of the allowance itself to, although monetary revaluation clauses
may be fixed in advance.
The right to alimony is extinguished in the following cases: 1)Cessation of the state of need
2)Death of the feeder of the feeder
3)Termination of the family relationship
4)Conviction suffered by the feeder for certain crimes
5)Economic inability of the debtor. In this case and in the case of the debtor's death, the
needy person can assert the bankruptcy claim against another obligor.
9.5. EXTRA-LEGAL ALIMONY
The alimony obligation can also result from an act of private autonomy: unilateral or bilateral
store.
Cause of the transaction is the debtor's commitment to provide for the creditor's living needs.
The most important figures are those of the alimony bequest and the alimony annuity.
Alimony legatee: is typical mortis causa store (660 cod civ), which has an undetermined but
determinable content.
Maintenance annuity: is an atypical inter vivos contract for consideration, by which one
person transfers to another person one or more goods or a capital sum in exchange for food,
lodging, clothing and any other form of assistance, for life.
In both transactions, the alimony payment is variable, depending on the creditor's changing
living needs.
Finally, the alimony obligation may arise as a form of compensation for the extra-contractual
damage produced to the alimony recipient by the person who was killed.
Also with regard to the allowance paid to fulfill an extra-legal alimony obligation, the discipline
of special protection of the claim (unavailability, non-distractibility...) applies when the state of
need of the fed is present, in order to guarantee him the effective satisfaction of life needs.
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