Consensual Separation: Analysis of Judgment No. 20034 of 2024

Judgment No. 20034 of 2024, issued by the Court of Cassation, offers an important reflection on the methods of consensual separation between spouses and the legal implications of the resulting agreements. In particular, the Court focused on the distinction between the necessary and optional content of agreements, a crucial aspect for understanding the validity and modifiability of the stipulated arrangements.

Essential and Optional Content of Agreements

According to the judgment, agreements between spouses in case of consensual separation have essential content, aimed at ensuring the respect of marital solidarity duties in the period immediately following the separation. To this content, optional arrangements can be added, intended to regulate financial situations that the parties no longer wish to maintain.

Consensual separation - Necessary and optional content - Distinction - Relevance - Consequences. In the context of consensual separation, spouses' agreements have essential content, aimed at fulfilling marital solidarity duties for the period immediately following the separation, to which optional content can be added, aimed at regulating financial situations that the parties no longer have an interest in maintaining; only essential stipulations can be revoked and modified pursuant to art. 710 c.p.c. (later replaced by art. 473-bis.29 c.p.c.) and are destined to be superseded by the divorce decree, while optional stipulations follow the specific discipline of legal transactions and are not revocable or modifiable.

Consequences of Stipulations

The distinction between essential and optional content has relevant legal consequences. Essential stipulations, in fact, can be subject to modification or revocation based on Article 710 of the Code of Civil Procedure and are destined to be superseded by an eventual divorce decree. Conversely, optional stipulations are subject to different regulations and cannot be modified or revoked with the same ease.

Final Considerations

This judgment represents an important guide for spouses contemplating a consensual separation. Understanding the differences between the various types of agreements is fundamental to avoiding future conflicts and ensuring that mutual rights and duties are respected. Therefore, it is always advisable to consult a legal expert for adequate advice and for the drafting of clear and well-structured agreements.