Divorce Alimony: The Court of Cassation (Ord. no. 15986/2025) and the Prevalence of the Welfare Function

In the complex landscape of Italian family law, divorce alimony is one of the most debated institutions, subject to continuous jurisprudential evolution. Its purpose, in fact, is not merely welfare-oriented but often also takes on an equitable-compensatory character, aiming to rebalance economic disparities that may arise from the end of a marriage. In this dynamic context, the Ordinance of the Court of Cassation no. 15986 of June 15, 2025 (rapporteur D. M. A.), while confirming the established trend, offers important clarifications on the rigorous assessment of the prerequisites for its granting, especially when the compensatory component cannot be verified or does not apply.

The Dual Nature of Divorce Alimony: Equity and Welfare

Divorce alimony, provided for by art. 5 of Law no. 898/1970 (so-called Divorce Law), has undergone significant interpretations by case law over the years. From an initially almost exclusively welfare-oriented view, there has been a shift, particularly with the rulings of the United Sections of the Court of Cassation (such as the well-known no. 18287/2018), to recognize a dual function: equitable-compensatory and welfare. The former aims to compensate the ex-spouse for the contribution made to family life and the accumulation of common assets or those of the other spouse, even through personal sacrifices (e.g., giving up career opportunities). The latter, on the other hand, is intended to guarantee the economically weaker ex-spouse an adequate standard of living, if they are unable to provide for their own maintenance independently.

The distinction between these two functions is crucial, as it affects the prerequisites for granting and the quantification of the alimony. The recent Ordinance no. 15986/2025, in the case involving F. S. v. C., fits precisely into this framework, clarifying how to proceed when the equitable-compensatory component is not at play.

Ordinance 15986/2025: When the Welfare Function Prevails

The Court of Cassation, with the Ordinance in question, has reiterated a fundamental principle: when it is not possible to ascertain, or when it simply does not apply, the equitable-compensatory component related to the impoverishment of the requesting ex-spouse, the judge's attention must focus, with particular rigor, on the welfare purpose of the alimony. This means that the court must carefully verify whether the ex-spouse is in a situation of actual and concrete economic self-insufficiency, such as to prevent them from providing for their own maintenance.

In matters of divorce alimony, where the equitable-compensatory component of the subsequent impoverishment of the requesting ex-spouse cannot be ascertained, or does not apply, a rigorous assessment of the foundational prerequisites is required, with the welfare purpose taking precedence. This applies in the presence of actual and concrete economic self-insufficiency of the requesting ex-spouse, who is no longer able to provide for their own maintenance, taking into account all the circumstances of the specific case, to be assessed with significant indicators, so as to also exclude that any link with the previous marital and family history has been irreversibly severed; in these cases, the quantification of divorce alimony shall tend to be carried out based on the criteria referred to in art. 438 of the Civil Code, subject to appropriate adjustments, depending on the greater or lesser importance of the contributions received or enjoyed by the burdened ex-spouse.

This maxim is of great practical relevance. The Court emphasizes the need for a "rigorous assessment" of "economic self-insufficiency." A mere income disparity is not enough; real inability to provide for oneself must be demonstrated. This assessment must take into account "all the circumstances of the specific case" and "significant indicators."

Among these indicators, we can include:

• The age of the requesting ex-spouse and their prospects for re-entering the workforce.
• Their health status and any presence of disabilities.
• Their professional training and acquired educational qualifications.
• The concrete possibilities of finding employment, also in relation to the local labor market.
• Any renunciations of career or professional opportunities made for the sake of the family during the marriage.

A crucial aspect highlighted by the Court of Cassation is the need to "exclude that any link with the previous marital and family history has been irreversibly severed." This means that, even if compensation is not discussed, the marital history does not become irrelevant. It serves to understand whether the current state of self-insufficiency is, in some way, related to the life choices made during the marriage, influencing, for example, current earning capacity.

Regarding quantification, the Ordinance establishes that, in these cases, the alimony shall be determined "based on the criteria referred to in art. 438 of the Civil Code." This article governs the obligation of maintenance, which aims to meet basic living needs (food, housing, clothing, medical care). However, the Court of Cassation specifies that these criteria must be applied "subject to appropriate adjustments, depending on the greater or lesser importance of the contributions received or enjoyed by the burdened ex-spouse." This introduces an element of flexibility, allowing the judge to modulate the amount by considering the specific context of the marital life, while maintaining the primary purpose of ensuring the minimum indispensable.

Practical Implications and Legal Advice

This ruling has significant implications for those facing divorce proceedings. For the spouse requesting alimony, it becomes essential to produce exhaustive documentation attesting not only to their income and asset situation but, above all, to their actual and concrete economic self-insufficiency, explaining how this manifests and why they cannot independently provide for their sustenance. For the spouse who must pay alimony, it will be crucial to contest the existence of such self-insufficiency, providing evidence demonstrating the other party's ability to provide for themselves or that their situation is not linked to the previous marital history.

Conclusions

Ordinance no. 15986/2025 of the Court of Cassation confirms the trend that views divorce alimony as a protective instrument for the economically weaker spouse, but clearly defines its boundaries when the prevailing purpose is welfare-oriented. The ruling emphasizes the need for rigorous and in-depth analysis by judges, based on concrete elements and the evaluation of marital history. To navigate this complex scenario, it is essential to rely on family law professionals capable of building a solid legal strategy and best representing the interests of their clients, ensuring respect for the rights and needs of all parties involved.