Murder of Un-Divorced Spouse: Cassation Confirms Life Imprisonment Even When Bond Has Ceased (Judgment no. 20870/2025)

Italian criminal law, with its rules and jurisprudential interpretations, is a constantly evolving field, but also a fundamental pillar for the protection of life and individuals. A recent ruling by the Court of Cassation, judgment no. 20870 of March 4, 2025 (filed on June 4, 2025), examined a matter of crucial importance and significant social impact: the constitutional legitimacy of the life imprisonment penalty for the murder of an un-divorced spouse, even when the emotional bond had ceased. This decision, presided over by Dr. G. S. and authored by Dr. V. G., reaffirms established principles but also raises important reflections on the disparity of treatment compared to other forms of relationships.

Regulatory Context and the Question of Constitutional Legitimacy

Our legal system, in Article 577, first paragraph, no. 1) of the Criminal Code, provides for the aggravating circumstance of life imprisonment for anyone who commits murder against a spouse who is not legally separated. This provision was challenged before the Court of Cassation by the defendant A. D., who raised a question of constitutional legitimacy in relation to Article 3 of the Constitution, which enshrines the principle of equality.

The defense argued that it was unreasonable and discriminatory to apply the penalty of life imprisonment in a case of spousal murder, even if not divorced, when the substantial cessation of the marital bond had already been established. The point of contention arose from a comparison with other situations: murder committed against the other party in a civil union, a cohabitant, or a person linked to the perpetrator by a stable emotional relationship. For the latter cases, in fact, if the relationship had already ceased at the time of the offense, the law provides for a temporary sentence, not life imprisonment. The question was therefore: why should the formality of "un-divorced marriage" entail such a severe penalty, even in the absence of a real emotional bond, unlike other equally significant relationships that are not formalized by marriage?

The Ruling's Maxim and its Meaning

The Court of Cassation, ruling on the matter, rejected the appeal, declaring the question of constitutional legitimacy manifestly unfounded. Here is the full maxim of judgment no. 20870/2025:

The question of constitutional legitimacy of art. 577, first paragraph, no. 1), cod. pen., in relation to art. 3 Cost., in the part where it provides for the predetermined penalty of life imprisonment for the murder of an un-divorced spouse, even when proof of the substantial cessation of the marital bond is acquired, is manifestly unfounded, as the disparity of treatment compared to murder, punished with a temporary sentence, committed against the other party of a civil union or against a person linked to the perpetrator by stable cohabitation or an emotional relationship, where these have ceased, is neither unreasonable nor arbitrary, but falls within a legitimate discretionary choice of criminal policy by the legislator.

This maxim is of fundamental importance. In essence, the Court affirmed that the legislator's choice to maintain life imprisonment for the murder of an un-divorced spouse, even in cases of substantial cessation of the relationship, is neither unreasonable nor arbitrary. It is a "legitimate discretionary choice of criminal policy." This means that the legislator has the power to grade the severity of penalties based on criminal policy considerations, attributing specific value and protection to the formal marital bond, regardless of its actual vitality at the time of the offense. Marriage, in fact, even when undergoing profound crises, retains its peculiar legal relevance until divorce, unlike other relationships which, while equally significant on an emotional level, are not afforded the same formalization and consequent legal protections and responsibilities.

Reasons for the Disparity of Treatment

To fully understand the Cassation's decision, it is useful to consider the reasons underlying this "legitimate discretionary choice." The Court highlighted that:

• Marriage is a legal institution that creates a formal and stable bond, with reciprocal rights and duties that persist until legal dissolution (divorce).
• The substantial cessation of the emotional bond does not equate to its legal cessation. The law distinguishes between de facto separation, legal separation, and divorce, and only the latter definitively extinguishes the marital bond.
• Civil unions and de facto cohabitations, despite having acquired legal recognition, present a different regulatory framework and formalization compared to marriage, with different implications in terms of responsibilities and protections.
• The severity of the penalty for spousal murder reflects greater social reprobation and the violation of a pact of solidarity and trust which, although weakened, retains its legal validity.

The disparity of treatment, therefore, is not seen as a violation of the principle of equality, but as the result of legislative choices aimed at protecting different types of bonds differently, attributing to the un-dissolved marital bond a particular legal status that distinguishes it from other relationships.

Conclusions: The Strength of the Marital Bond in Criminal Law

Judgment no. 20870 of 2025 by the Criminal Court of Cassation represents a firm point in the interpretation of Article 577 of the Criminal Code concerning spousal murder. It clearly reiterates that the formality of the marital bond, until its legal dissolution through divorce, continues to hold significant weight in criminal law, justifying the severity of the life imprisonment penalty. The decision emphasizes how the principle of equality (Art. 3 of the Constitution) does not impose an absolute equalization between different situations, allowing the legislator to make reasonable and non-arbitrary distinctions in the exercise of its discretion in matters of criminal policy. This means that, even in the presence of a profound crisis or de facto cessation of the relationship, the marital bond continues to produce important legal effects, particularly when dealing with serious crimes such as murder.