Cass. civ. n. 29883/2024: Reflections on Maintenance Alimony and Mortgage Registrations

The recent ordinance of the Court of Cassation, no. 29883/2024, offers significant food for thought regarding the issue of maintenance and financial guarantees in cases of separation. In particular, the ruling focuses on the matter of mortgage registrations to guarantee maintenance obligations, clarifying the necessary requirements for these to be legitimately ordered.

Context of the Ruling

The case at hand involves A.A., obligated to pay monthly maintenance alimony for his three children, and B.B., his ex-wife, who had requested the cancellation of two mortgage registrations against him. The Court of Appeal of Trieste had initially granted A.A.'s request, deeming that there was no concrete risk of non-compliance. However, the Court of Cassation overturned this decision, emphasizing the need for a careful assessment of the risk of non-compliance, also in relation to the debtor's conduct, which must be analyzed as a whole.

The Principle of Risk of Non-Compliance

The judge must always review the creditor's assessment regarding the existence of the risk of non-compliance.

The Court highlighted how, according to Article 156, paragraph 5 of the Italian Civil Code, mortgage registration must be justified by the presence of a concrete risk of non-compliance. In this case, the reduction of A.A.'s share in the profits of the professional association was considered a sufficient indicator of such a risk. The ruling clarifies that the mere fact of having failed to comply with an obligation is not sufficient to justify mortgage registration; a comprehensive and systematic evaluation is necessary.

• The risk of non-compliance must be real and documented.
• The debtor's past conduct must be considered in the current context.
• Maintenance obligations, being periodic, require particular attention from the judge.

Conclusions

Ruling no. 29883/2024 of the Court of Cassation represents an important clarification on the methods of mortgage registration to guarantee maintenance obligations. It reaffirms the importance of a rigorous assessment of the risk of non-compliance, based on concrete elements and not on mere assumptions. In a context where the well-being of minors must always come first, the protection of the financial rights of separated spouses requires a delicate balance, which this decision has helped to define.