In the field of Private Investigations aimed at gathering information requested by private citizens, the investigative institute AIRO offers its professionalism, resources, and expertise for the collection of evidence to be used in the review of conditions established by the separation or divorce decree.


New relationship and the impact of cohabitation with the new partner

In excluding any automatism between the establishment of a new romantic relationship and the loss of the right to maintenance allowance, it is important to highlight the need not only for the new bond to have characteristics of stability and continuity, which can be abstractly configured even in the absence of cohabitation with the partner, but also for it to be accompanied by the development of a different life plan, characterized by the sharing of new needs, interests, habits, activities, and social relationships, such as to lead to the surpassing of the family model that characterized the previous marital experience, and with it the previously enjoyed standard of living. Only in this way, in fact, can that material and spiritual communion of life be created which, giving rise to the assumption of reciprocal duties of moral and material assistance by the members of the couple, allows for the recognition of the existence of a de facto family, which cannot be configured instead where, due to the fragility of the bond and the absence of shared goals and common relationships, the completion of a considered existential choice aimed at establishing a lasting consortium must be excluded.

In the context of the relevant assessment, the establishment of a cohabitation relationship between the members of the couple, although not representing the only indicator of the formation of the new family unit, is undoubtedly the most significant one, which can only be dispensed with in the presence of other elements that ordinarily characterize the family community, including the pooling of income and assets that each member can dispose of.

Civil Court of Cassation Section I, 06/10/2022, no. 18862

Loss of alimony

In matters of personal separation of spouses, stable and continuous cohabitation with another person may lead to the termination or interruption of the obligation to pay maintenance imposed on the other, as it is presumed that the financial resources of each cohabiting partner "more uxorio" are pooled in the interest of the new family unit; however, the spouse requesting the allowance retains the right to prove that the de facto cohabitation does not improve their economic conditions and that their income remains inadequate.

Court of Verbania, 11/06/2020, no. 492

The formation of a new family

The formation of a new de facto family unit by the spouse entitled to alimony results in the definitive loss (that is, even if the de facto family subsequently dissolves) of the right to receive alimony and/or divorce allowance.

Court of Savona, 08/01/2019, no. 757

Separation and new de facto family

The principle that the establishment of a new de facto family excludes the maintenance allowance has been expressly established in the context of divorce allowance, but it is perfectly applicable to the matter of personal separation for the same reason; In fact, the sixth paragraph of art. 5 of law no. 898 of 1970 does not define the concept of adequacy of means, in the absence of which and in the presence of the further requirement of the impossibility of obtaining them for objective reasons, the conditions for the entitlement to the divorce allowance arise, but rather deliberately leaves the concrete parameters for evaluating such "adequacy" open to differentiation, due to the varied possible evolution of the existential choices of the ex-spouses in the phase following the separation.
Among the factors capable of affecting this notion of "adequacy" is the potential significance of any cohabitation "more uxorio", which, when characterized by the features of stability, continuity, and regularity to the extent that it assumes the characteristics of the so-called "de facto family" (characterized, as such, by the free and stable sharing of values and life models, including the economic one) ensures that the evaluation of such "adequacy" cannot fail to register such an existential evolution, severing – as long as such cohabitation lasts (and in this case, the continuing relevance of only the possible state of need in itself remains if "not compensated" within the cohabitation) – any plausible connection with the standard and model of life characterizing the previous phase of marital cohabitation, and excluding – thereby – any basis for the recognition, in practice, of the divorce allowance based on the preservation of the same.

Bari Court, Section I, 02/07/2019, no. 606

When does the right to alimony cease?

The establishment of a new family, even de facto, by the separated spouse eliminates any basis for the recognition of maintenance payments from the other spouse, regardless of any connection with the lifestyle characterizing the previous phase of marital cohabitation.

Civil Court of Cassation Section I, 27/06/2018, no.16982

Reduction and revocation of the maintenance allowance

In matters of personal separation, the reduction and revocation of the maintenance allowance in favor of the spouse and children normally takes effect from the moment of the judicial ruling that modifies the measure or ascertains the absence of its prerequisites. Therefore, the sums received under previous non-final rulings are not refundable if, due to their high amount, such sums have nonetheless been allocated to ensure the maintenance of the spouse until the possible exclusion of the right itself or its reduction to an obligation of a merely alimentary nature and, it must be presumed, precisely due to the modesty of their amount, that they have been consumed for personal sustenance purposes.

Civil Court of Cassation Section I, 24/05/2018, no. 12957

Modification of economic capabilities

In order for the birth of a new child to lead to a revocation or reduction of the maintenance allowance to the ex-spouse, it is necessary to demonstrate (with the burden of proof obviously on the person requesting the modification) that this event has caused a concrete and actual worsening of the economic and contributive capacities of the parent; if, as in the case at hand, the plaintiff has neither alleged nor proven anything in this regard, the validity of the request for revocation or reduction of the maintenance allowance for the spouse must be excluded, moreover, the improvement of whose economic conditions has not been demonstrated.

Velletri Court, Section I, 05/17/2018

The nullity of marriage and the maintenance allowance

In the face of the overturning of the assumption (the permanence of the marital bond) of the maintenance allowance due to the subsequent ecclesiastical declaration of nullity of that bond, the economic provisions related to the relationship between the spouses contained in the judgment of their separation cannot stand, even though it has become res judicata, as it appears unreasonable—thus excluding any violation of the principle of the inviolability of res judicata—that accessory rulings could survive the disappearance of the main ruling on which they depend. Evidence of this is that, if a declaration of nullity of that bond were to occur under civil law, there would be no place for provisions corresponding to those provided in the case of personal separation, as, in such a case, the legislator considers that the regulation of economic relations finds its appropriate place in the so-called putative marriage.

Civil Court of Cassation Section I, 05/11/2018, no. 11553

Exclusion of post-marital solidarity of the other spouse

The formation of a de facto family by the separated spouse constitutes an expression of an existential and conscious life choice, with the assumption of the risk of the relationship's termination, a choice that severs any connection with the lifestyle and model linked to marriage and therefore excludes post-marital solidarity from the other spouse in terms of maintenance contribution.

Fermo Court, 05/02/2018

Cohabitation with another partner

The cohabitation with another partner by the ex-spouse nullifies the right to the allowance by the ex, even if there is no proof of a de facto partnership and it is only a "close friendship". This was stated by the Supreme Court, which also clarified that the burden of proving the degree of intimacy between the ex and their new partner cannot be placed on the ex-spouse obligated to pay the allowance.
The Court thus made the conditions for losing the allowance less stringent in the case of a new cohabitation, accepting the appeal of a man who contested the obligation to pay his ex-wife a monthly allowance of 800 euros because she was living with another partner. According to the judges of legitimacy, it is true that the right to the allowance does not lapse due to mere cohabitation, but the burden of proving the degree of intimacy between the couple cannot be placed on the husband.

Civil Court of Cassation Section VI, 03/08/2017, no. 6009

The repeatability of the maintenance allowance

In matters of personal separation, the decision that denies the spouse's right to maintenance or reduces its amount does not entail the recoverability of the higher sums paid by virtue of previous non-final rulings, if, due to their low amount, such sums were nevertheless intended to ensure the spouse's maintenance until the possible exclusion of the right itself or its reduction to an obligation of a merely alimentary nature, and it must be presumed, precisely because of the modesty of their amount, that they were consumed for personal sustenance purposes. (In the case in question, the recoverability of the maintenance allowance was excluded by the Court, overturning the second-degree judgment, with respect to an amount of 350 euros).

Civil Court of Cassation Section I, 20/03/2009, no. 6864

Failure of the marital union

The right to alimony is lost for the wife whose conduct has caused the failure of the marital union (in this case, the Court upheld the appeal judgment that had attributed the separation to the woman, revoking the right to alimony, identifying her behaviors, including the repeated refusal to move to the city where the husband had to stay for most of the week due to his work and the decision to sleep in the child's room instead of with the husband, as the basis for the separation).

Civil Court of Cassation, Section I, 09/19/2008, No. 23885

The activity of a private investigator is often the only valid tool to prove that the ex-spouse has started a new stable relationship and/or cohabitation, situations that can lead to the loss of alimony.

Contact us