Is Renunciation of Severance Pay During Separation Legally Binding?

When a couple decides to pursue a consensual separation, the desire to quickly resolve all financial matters often leads to agreements that include mutual waivers, including the waiver of a portion of the Severance Pay (TFR). However, understanding the legal implications of such waivers is essential to avoid future surprises. As a divorce lawyer in Milan, Avv. Marco Bianucci frequently analyzes prior agreements to determine whether a waiver made during the separation phase effectively precludes the possibility of claiming a share of the Severance Pay at the time of divorce.

The central issue revolves around the nature of the right itself: according to prevailing case law, rights arising from divorce, such as the ex-spouse's share of Severance Pay, are not fully available during the separation phase. This is because the right to a share of the severance indemnity technically only matures with the final and binding divorce decree. Consequently, a waiver made before the right has actually arisen could be considered null and void due to a lack of subject matter. It is crucial to analyze whether the separation agreement had a clear global settlement function or if it was a mere statement of intent, which is why expert assistance is crucial.

The Regulatory and Jurisprudential Framework

Article 12-bis of the Divorce Law (Law 898/1970) establishes that the spouse entitled to alimony, who has not remarried, has the right to a percentage of the severance pay received by the other spouse, even if it matures after the decree. The percentage is equal to 40% of the total indemnity attributable to the years in which the employment relationship coincided with the marriage. The complexity arises when, during separation, the parties include clauses such as 'neither party shall have any further claims against the other'.

The Court of Cassation has repeatedly reaffirmed the principle of the unavailability of future rights in marital matters. Pre-divorce agreements are often considered null and void due to the illegality of their cause, as they tend to limit the parties' freedom of defense and their status in the future marriage dissolution proceedings. However, recent trends require a specific investigation into the parties' intentions: if the separation agreement was intended as a definitive settlement of all financial relationships (a global settlement) in exchange for other concessions, the assessment could be different. This is where the intervention of a professional becomes decisive in interpreting the validity of the clause.

The Approach of Studio Legale Bianucci

At Studio Legale Bianucci, located in Milan at via Alberto da Giussano 26, each case is handled with meticulous documentary analysis. The approach of Avv. Marco Bianucci, an expert in family law, goes beyond a superficial reading of the documents; it delves into the genesis of the separation agreement. The defense strategy is based on verifying the conditions existing at the time of signing: if the waiver of Severance Pay was made without any reciprocal consideration or if it was signed without awareness that the right had not yet matured, there are concrete grounds for action.

The firm's objective is to protect the client's economic stability by verifying whether the conditions exist to revoke the waiver or, conversely, to defend the validity of the settlement agreement if representing the spouse who paid the Severance Pay. Thanks to extensive experience in family financial dynamics, the firm offers targeted advice to clarify whether a waiver made years ago is an insurmountable obstacle or an act that can be challenged in divorce proceedings.

Frequently Asked Questions

I waived my Severance Pay during separation, can I claim it during divorce?

In many cases, yes. Case law tends to consider a waiver of a right (the share of Severance Pay due in case of divorce) that has not yet arisen at the time of separation as null and void. However, it is necessary to examine the specific text of the separation agreement to assess whether there were settlement elements that could render the agreement valid.

What are the requirements to obtain the ex-spouse's share of Severance Pay?

To be entitled to a share of Severance Pay, three fundamental conditions must be met at the time the indemnity is paid: the divorce decree must have been issued, the claimant must be entitled to periodic alimony, and they must not have remarried. If even one of these requirements is missing, the right does not arise.

How is the ex-spouse's share of Severance Pay calculated?

The law provides for 40% of the total indemnity attributable to the years in which the employment relationship coincided with the marriage. The calculation is not based on the total duration of employment but only on the period when work and marriage overlapped, including the period of legal separation until the divorce decree.

If my ex-spouse remarries, are they entitled to my Severance Pay?

No, remarriage automatically forfeits the right to a share of Severance Pay, just as it forfeits the right to alimony. This applies even if no explicit waiver was made previously, as the subjective requirement is no longer met.

Request an Evaluation of Your Case

Financial matters related to the end of a marriage require expertise and attention to detail. If you have doubts about the validity of a waiver signed in the past or wish to protect your rights to Severance Pay in anticipation of a divorce, leave nothing to chance. Contact Avv. Marco Bianucci for an in-depth consultation at the Milan office. We will analyze your situation together to identify the most effective strategy for your future.