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 this case, the wife challenged the judgment of the Court of Appeal of Bari, which had increased the father’s maintenance contribution for the two minor daughters while otherwise confirming the finding of separation fault against the wife and dismissing her request to attribute fault to the husband. The wife’s infidelity had been established through a combined assessment of several items of evidence. The Court of Cassation held that the investigative reports had properly been considered as non-standard evidence with circumstantial value, together with the other evidence duly obtained.

Legal Principles and Case Law

The Court reiterated that the spouse seeking a finding of fault must prove the breach of marital duties and its causal link to the intolerability of continued cohabitation. In particular:

• the spouse seeking a finding of fault for infidelity must prove the conduct and its causal effect;
• the spouse arguing that the marriage had already irretrievably broken down before the infidelity must prove the circumstances supporting that argument;
• the court must assess both spouses’ conduct as a whole: a pre-existing irretrievable breakdown may exclude the causal link.

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 this case, the Court of Cassation dismissed the wife’s appeal. The Court of Appeal had found a causal link between the infidelity and the irretrievable breakdown, concluding that the earlier difficulties had not already reduced the marriage to a merely formal relationship. The intention to separate expressed in 2016 formed part of this overall assessment; it was not, by itself, the criterion for deciding fault.

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.

Full text of the decision (Italian) (DeJure reproduction hosted by Studio Sesta).