Prenuptial agreements have long been a widely discussed topic in Italy and have traditionally not been considered enforceable in the courts.
Likewise, spousal agreements that determine financial arrangements or regulate issues such as custody and/or maintenance of children in the event of separation or divorce, have historically been considered invalid in Italy, being regraded as contrary to public order and established principles of family law.
However, the Italian Supreme Court (Corte di Cassazione) recently addressed this issue, with Order n. 20415 of 21st July 2025, which recognized the validity of a spousal agreement entered into by a couple from Mantova.
During the marriage, the wife contributed a significant amount of money from her own salary and inheritance to “the well-being of the family, the maintenance of the current home and to the mortgage payments” including the renovation of a house owned solely by the husband. In 2011, the spouses signed a private written agreement in which the husband acknowledged the wife’s financial contribution, and promised that if they separated he would pay her the sum of Euro 146.000. This sum represented reimbursement for “renovation costs, mortgage and new heating system installation” as well as the compensation for her “contribution to the wellbeing of the family and for the purchase of furniture and fixtures”. In exchange, the wife renounced any rights to certain assets such as some moveable property (boats, furnishings, and sums of money).
When the couple separated in 2019, the husband argued that their agreement was invalid, because it concerned marital relations and the possibility of a future separation, allegedly violating mandatory rules of family law.
The Supreme Court, however, rejected the husband’s arguments.
The Court held that this type of spousal agreement was a “legitimate atypical contract between spouses formed under the principle of private contractual autonomy” (Art. 1322 civil code).
The Court considered that the event of separation did not constutite an unlawful cause of the contract, but rather a condition precedent: a future event which would trigger the obligations set out in the agreement.
The husband’s obligation to reimburse the wife became enforceable once the separation had occurred, as it served to rebalance the economic resources that the spouses had mutually agreed in advance. The agreement was not related to the right/duty of moral and material assistance during the marriage.
The legitimacy of the agreement lay also in the fact that it concerned disposable rights (the spouses’ respective credit and debit positions) which were distinct from inalienable rights (spousal support/child support).
The Court held that “the agreement is valid […] because its purpose was to settle certain financial disputes between the spouses, without any explicit or implicit reference to the future framework of the financial relationship between the spouses that might follow a potential divorce”, adding that «with regard to contributions for the needs of the family during the marriage, each spouse is required, according to articles 143 and 316-bis, first paragraph civil code, to contribute in proportion to their own respective assets and, following the separation, no automatic right of reimbursement exists between the spouses in respect to expenses incurred indistinctly; this principle may be derogated from through a contractual agreement between the parties, which may better reflect the economic capacity of each spouse, or regulate spontaneous forms of generosity between them, and is in any case aimed at satisfying the primary needs of the family and the children, in line with the duties of solidarity that arise from the marital relationship».
From this follows that any prenuptial agreement that freely, reasonably and proportionately regulates the spouses’ financial arrangement in the event of the breakdown of the marriage, may be considered valid in Italian law.
Prenuptial agreements drawn up in compliance with the limitations identified by case law of the Italian Supreme Court, may therefore serve as a useful tool to reduce litigation between spouses, protect individual assets and promote increased stability in the financial relationship between the parties.
Avvocato Sara Cerrocchi Email: s.cerrocchi@oliverpartners.it