Separation Fault: A Recent Supreme Court Ruling

The recent ruling no. 4038 of the Court of Cassation, issued on February 14, 2024, offers important insights into the issue of fault in the separation of spouses. The central question was the determination of one spouse's responsibility for the marital crisis and the intolerability of continuing cohabitation. In this article, we will analyze the highlights of the ruling and its impact on case law regarding separation.

The Case Addressed by the Court of Cassation

In the case at hand, A.A. had appealed the judgment of the Court of Appeal of Bari, which had partially granted his appeal, increasing the maintenance allowance for the two minor daughters and rejecting his request for separation fault to be attributed to the spouse B.B. According to the Court, A.A.'s infidelity had been proven through atypical evidence, including investigative reports. This raised a debate on the validity of such evidence, particularly on its ability to demonstrate a causal link between marital conduct and the marital crisis.

Legal Principles and Case Law

The Court reiterated that a declaration of separation fault requires proof that the marital crisis is attributable solely to conduct contrary to marital duties. Specifically, it is necessary to demonstrate:

• the existence of an already irreversible crisis prior to the infidelity;
• the causal link between the infidelity and the intolerability of cohabitation;
• the overall assessment of both spouses' conduct.

In matters of separation fault, the pre-existence of the couple's crisis before the infidelity of one of the spouses excludes the causal link between the latter conduct and the intolerability of continuing cohabitation.

In the ruling under review, the Court confirmed the decision of the lower courts, emphasizing how the intention to separate had been expressed by the husband in 2016, before A.A. filed his request. This led to the conclusion that the existing problems were not sufficient to justify the applicant's request for fault attribution.

Conclusion

Ruling no. 4038 of the Court of Cassation represents an important confirmation of the case law orientation on separation and fault. It highlights how crucial it is to demonstrate the causal link between the spouses' conduct and the intolerability of cohabitation. This principle not only guides judges in their decisions but also offers clear guidance to spouses regarding the rights and duties arising from marriage.