The Italian Supreme Court has recently ruled in ordinanza No. 35385 of 2023 that the fact of pre-marital cohabitation of the spouses constitutes one of the parameters calculating the divorce allowance.
The Court pointed out that pre-marital cohabitation represents “a custom increasingly rooted in the behavior of our society which is accompanied by an increased recognition of de facto ties, understood as family and social formations tending to be of an equal standing of those of marriage.”
According to the Supreme Court, therefore, for the purpose of awarding and quantifying the divorce allowance – in cases where the marriage is a natural continuation of cohabitation “having the connotations of stability and continuity” – the period of premarital cohabitation should also be counted. It was deemed that shared choices would likely be made in that period which entailed sacrifices in relation to the working/professional life of the economically weaker spouse, who would then as a consequence be unable to ensure adequate maintenance for himself or herself after divorce.
This is an important development in family law in Italy as up to now one of the parameters in assessing a divorce payment would be the length of the marriage without counting prior cohabitation. Following this case, if the cohabitation took place over many years before marriage, the economically weaker spouse will now to be able to claim a more substantal allowance.