In Order No. 21997 of 5 August 2024, the First Civil Division of Italy’s Court of Cassation examined how a survivor’s pension should be divided between a divorced spouse and the surviving spouse.
The case and the decision
The Rome Court of Appeal had awarded 15% to the former spouse and 85% to the surviving spouse, changing the shares set at first instance. The Court of Cassation dismissed the former spouse’s appeal, finding that the appellate court had adequately assessed the relevant circumstances.
How the shares are assessed
The duration of each marriage is the main criterion, but the division is not a purely mathematical calculation. The pension’s support function also requires consideration of the parties’ financial circumstances, the amount of divorce maintenance and any stable, genuine premarital cohabitation.
Premarital cohabitation may be relevant even if it began while a spouse was separated from a previous spouse. It must be assessed separately, rather than added to the legal duration of the marriage. Divorce maintenance does not set a ceiling on the pension share.
The percentages awarded in this case reflect its particular circumstances. The order does not establish fixed shares for every family.
