If the ex-spouse has a new relationship, does he or she lose support?

According to jurisprudence, even when there is no cohabitation, the stability of the relationship with the new partner and the life project that is undertaken together counts.

When a marriage separates and divorces, nothing happens that the now ex-husband and wife each take their own path and, if they want, undertake new sentimental, emotional and sexual ties, more or less punctual, with the others. This is legitimate, because marital ties have already ceased, including the duties of cohabitation and fidelity. But it is rather unpleasant, for those who are forced to pay the check, to know that the other has a new partner, a “stable affection” with whom he has established a deep relationship and perhaps even a de facto cohabitation.

This observation must be made even if formally the two members of the new couple do not live together, but perhaps they also have a good time thanks to that financial contribution that arrives monthly. And then the question arises: if the ex-spouse has a new relationship do you lose support?

Alimony and divorce benefits: differences

It should be noted that the conditions for the recognition of the maintenance are different in the case of a bonus established as a result of the separation marital or in case of intervention divorces.
Divorce allowance [1] it is based on the inadequacy of the financial means available to the former spouse and his inability to obtain them for objective reasons (as in the case of illness or old age that prevents the possibility of finding work): for this he must be granted a contribution that – explains the Supreme Court [2] – has a “welfare, compensatory and equalizing” character. [3].

The maintenance allowance, on the other hand, is based on the disproportion between the economic conditions of the two spouses and on the criterion of maintaining the standard of living enjoyed during the married life. [4].

New cohabitation: when the divorce allowance is still to be paid

This difference between child support and divorce benefits has repercussions new coexistence assumed by the former spouse receiving the support: according to current and more recent case law, with the separation the attribution is not yet lost, even if there is a new partner or life partner, while with the divorce the right to receive divorce benefit continues “permanently excluded” [5].

However, a recent ruling by the Court of Cassation in United Sections [6] has left a window for the perception ofdivorce benefits even in cases of new coexistence of the former beneficiary spouse with new partner. This occurs when it is necessary to take into account the contribution made by the person holding the subscription to the management of family life – and, therefore, to the growth of the common patrimony – during the years of marriage. In these cases, despite the new cohabitation and the creation of a different de facto partner, the divorce payment is still due; it may be reduced, in consideration of any capital contribution contributed by the current partner of the former spouse, but not eliminated altogether.

When the new relationship makes you lose maintenance

Once it has been clarified that the new coexistence does not always lead to the loss of maintenance, it is necessary to see what happens in case of new relationship assumed by the ex-spouse, which, however, did not translate into a stable cohabitation: as in the case where the two new partners do not live under the same roof and live in separate residences, but still maintain an intense and mutual bond. constant attendance. If the former spouse obliged to pay the periodic benefit discovers these circumstances, he may ask the judge to revoke maintenance?

The answer to this very demanding question came with a new order of the Cassation [5], which decided the case of two ex-spouses in which the beneficiary of the check had established a romantic relationship with a new partner but without cohabitation. According to the Supreme Court, the new relationship is not enough to eliminate maintenance, but it remains to be seen whether or not it has translated into a “life project in common “between the grant recipient and the current partner.

How is it determined if you are still entitled to maintenance with the new relationship?

The Board notes that it is necessary to make, first of all, “an assessment of the stability of the new relationship“Company (the occasional and temporary ones are obviously not relevant for the purpose of excluding maintenance), and also” on the consistency and continuity offinancial contribution provided by the partner to the spouse with the right to help “: so, for example, if the ex-wife is linked to a rich man, the ex-husband will no longer have to support her.

If the marriage is only separated, but not yet divorced, in order to assess the new relationship, then the “delicate and temporary phase of life that could still lead to the reconciliation of the spouses” must be taken into account (in fact, marital separation is a temporary and reversible phase). Here’s why, in the case of maintenance allowance recognized to the former spouse after the separationthe new relationship it is not conclusive: Piazza Cavour judges state that “the decision to establish a new relationship cannot always be considered the expression of a complete existential choice that involves real-life planning, such as living with another person, which gives rise to mutual obligations of moral and material assistance “.

Therefore – the Ermellini explain – the maintenance ceases “Only if it can be proven that the applicant spouse has been living together more uxorio with another person as a person of stability, continuity and effectiveness life planning, being able in this case to presume that the economic resources of each cohabitant are shared ”. In the case examined this had not happened, or at least had not been found, so much so that the Supreme Court referred the matter to the investigating judges for a further examination of this profile. Meanwhile, finally, the Court of Cassation ruled out “any automatism between the establishment of a new relationship sentimental and the loss of entitlement to the benefit“.


Note

[1] Art 5, co. 6, L. n. 898/1970.

[2] Cass. SU sent. n. 18287/2018.

[3] Cass. sent. n. 5605/2020 and n. 16809/2019.

[4] Cass. ord. n. 14151/2022, n. 2466/2016 i n. 6855/2015; Court of Rome, judgment no. 15973/21.

[5] Cass. ord. n. 2466/2016 i n. 6855/2015.

[6] Cass. SU sent. n. 32198/2021.

[7] Cass. ord. n. 18862 of 10.06.2022.

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