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On 10 May 2017 the Supreme Court in Italy handed down a decision which Italian legal commentators are saying revolutionises the basis of spousal support upon divorce in Italy. The decision, with Judgment No. 11504/17 (found here in Italian), overturns 27 years of judicial practice whereby the standard of living during the marriage guided financial division upon divorce.

The decision stated that the “tenor of matrimonial life” is no longer the guiding principle for financial provision upon divorce.

In overturning a decision made by the Court of Appeal in Milan, the Supreme Court stated that the Courts in Italy should be guided by whether the spouses can achieve economic independence following a divorce. Effectively, if the spouses have sufficient economic independence, including sufficient income and housing, the Court should not interfere to address and provide for any further financial support.

The decision is part of a noticeable worldwide trend to shorten, reduce or extinguish spousal support to the economically weaker spouse upon divorce. It mirrors a similar principle applicable in, for example, Portugal where the court assesses only the basic needs of the spouses. There is ongoing discussion in other countries, including the Netherlands, about moving to this model.

And in England and Wales there has been a judicial trend in recent years, often well-publicised, to reduce the term of maintenance orders on the basis that the economically weaker spouse should strive more quickly toward self-sufficiency (“autosufficienza economica” - “economic independence”). In summarising the guiding threads for spousal maintenance in SS v NS [2014] EWHC 4183 Mostyn J, like the Italian Supreme Court, put an emphasis on only “alleviating significant hardship.”

There is a wider debate with regard to how this trend fits in to developing legal, sociological and demographic trends. Should the economically weaker spouse be supported to the same standard of living as was enjoyed during the marriage? Should the commitments and sacrifices made during a marriage be reflected in the financial outcome on divorce beyond merely providing for basic needs? Or should the end of the marriage spell the complete end of any economic union save where the welfare of the spouses dictates otherwise? The decision of the Italian Supreme Court is indicative of the increasingly common latter school of thought.

The position of the economically weaker spouse in a settlement is an important element of our work with spouses in international families who are seeking to divorce. Outcomes vary across the world and urgent legal advice should be taken.

If you are affected by the matters raised in this article and would like to discuss issues relating to spousal maintenance or other provisions upon divorce, please do not hesitate to contact us on enquiries@iflg.uk.com or directly to the author on stuart.clark@iflg.uk.com.

Stuart Clark is an Associate Solicitor at iFLG, and has a wide breath of experience in all issues arising from the breakdown of a relationship but particularly specialises in financial and forum matters. His work involves complicated trust and partnership issues when often quick advice needs to be obtained from a specialist lawyer in another jurisdiction to run concurrently to his cases in hand.

 

Stuart Clark

The International Family Law Group LLP

www.iflg.com.uk

 

©11 May 2017