ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
such c onvenzione must be concluded as a notarised deed in the presence of two witnesses. If the agreement is not concluded as a public deed (meaning that it does not fulfil the require - ments as to form contained in Article 162 of the Italian Civil Code), it is null and void. Trusts The Hague Convention on the law applicable to trusts and their recognition concluded on 1 July 1985 entered into force in Italy on 1 Janu - ary 1992. However, trusts are not regulated by Italian law, and the courts’ approach to them is quite uncertain. 2.4 Spousal Maintenance Sum Paid Monthly As mentioned in 2.2 Service and Process , the only decision an Italian judge can make on finan - cial issues is the provision of a monthly main - tenance payment, in both legal separation and divorce. The weaker spouse (usually, the wife) is entitled to receive spousal maintenance from the stronger spouse if there is financial disproportion between them. Spousal support awarded by the Italian judge during legal separation/divorce proceedings does not have the scope to share or distribute the spouses’ wealth and assets. • Spousal maintenance granted within legal separation proceedings is called assegno di mantenimento (Article 156 of the Italian Civil Code) and has an assistance function. It serves to provide financial support to the weaker spouse – who has no means or who is incapable of obtaining them – so that they can maintain the standard of living enjoyed during the marriage. Spousal maintenance during legal separation is not awarded if the
claimant is considered “guilty” for the separa - tion. • Maintenance granted within divorce proceed - ings is called assegno divorzile (Article 5 of the Italian Divorce Law). In Italy, a milestone decision of the Italian Supreme Court (Deci - sion No 18287/2018) modified the grounds of spousal maintenance in the case of divorce, with the Supreme Court stating that spousal maintenance during divorce has to be grant - ed in favour of the weaker spouse in order to allow them to be self-sufficient. If there is a disproportion between the finances of the spouses and the weaker spouse has no adequate means and cannot obtain them for objective reasons, the judge grants spousal support, taking into consideration crite - ria such as the parties’ contribution to the increase of the family’s assets and welfare, the sacrifices that the weaker spouse has made for the benefit of the family (eg, giving up work in order to take care of the children), their work capacity and age, and the dura - tion of the marriage. This means that divorce maintenance in Italy now has a compensative nature as well as an assistance function. During both legal separation proceedings and divorce proceedings, the judge rules on the financial interim order after the first hearing. This order is effective during the whole proceedings until the final decision (when it can be confirmed or modified on the basis of the result of the even - tual investigation into the spouses’ finances made during the proceedings). In the absence of a standard calculator/table/ percentage, the quantum of the spousal support depends on the judge’s discretion. There is no maximum limit on the maintenance that can be ordered.
191 CHAMBERS.COM
Powered by FlippingBook