BOLOGNA SEPARATION? MAINTENANCE?GRANT? Maintenance allowance and divorce check separating bologna map 
BOLOGNA SEPARATION? MAINTENANCE? GRANT?Maintenance allowance and divorce allowance
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Article 156 of the Civil Code (Effects of separation on property relations between the spouses), paragraph 1, establishes that “the judge, pronouncing the separation, establishes for the benefit of the spouse the separation is not the right to receive from the what other spouse is necessary for his maintenance, if he does not have adequate incomes of his own ”.
Yes the separation has strong consequences on the patrimonial regime of the family as it determines the cessation of the conjugal bond .
Maintenance allowance and divorce allowance: comparison
The maintenance allowance performs its function in the separation of the spouses: the judge, in pronouncing the separation, imposes on the spousewho has a better economic condition to contribute to the maintenance of the other, if deprived of adequateincomes of his own BOLOGNA EXECUTION?MAINTENANCE? GRANT? Maintenance allowance and divorce allowance
Therefore, the maintenance grant following separation is governed by art. 156 of the Civil Code, which states that “the judge pronouncing the separation establishes the right of the spouse to receive from the other spouse what is necessary for his maintenance, if he does not have his own income”.
the divorce allowance , whose foundation is recognized, in fact, in the definitive rupture of the marital relationship and, therefore, in the loss of all the effects proper to the marriage bond . Also the divorce allowance has a welfare / solidarity purpose, ie it serves to prevent the deterioration of the economic conditions of the economically weaker spouse .
Marriage – Separation – Maintenance allowance – Effective date – From the date of the application – Eligibility – Modulation of the amount of the check over time – Possibility. (Cc, articles 155 and 156)
On the subject of personal separation of spouses, the fact that the entitlement of the grants referred to in articles 155 and 156 of the Italian Civil Code starts from the request does not exclude the power of the merit judge to graduate and differentiate over time the amount of the grant to support maintenance of the spouse and children, modulating it according to the set of concretely ascertained data. It follows, therefore, that the natural retroactivity of the rulings taken in this regard in the judgment of separation does not also mean necessary uniformity of the amounts fixed in relation to the various temporal phases.
Cass. Section I, sentence 17 December 2004 n. 23570 ()
Divorce – Next to separation – Divorce allowance – Behavior of one of the spouses – Before separation – Irrelevance. (Law 1 December 1970 No. 898, Articles 3 and 5)
The behavior of the spouses, prior to the separation, remains exceeded and absorbed by the assessment made in this regard by the separation judge . It follows, therefore, that if this was pronounced without charge (and with the recognition of the right to receive a maintenance allowance in favor of one of the spouses) in ascertaining the reasons for the decision, for the purpose of determining the divorce check only the behavior of the beneficiary part of the post-separation assignment can be taken into account, when it is found to preclude the reconstitution of the spiritual and material communion of the spouses.
Cass. Section I, sentence 1 February 2005 n. 1989 (in Judas at the Right, Edition No. 12 of March 26, 2005, page 52)
rule of the art. 156 cod. civ., the right to maintenance following a personal separation arises, in favor of the spouse to whom the latter is not chargeable, where he does not benefit from income that allows him to maintain a standard of living similar to that which he had during the marriage. In assessing this assumption, however, the judge will have to take into account any type of disposable income on the part of the applicant, including those deriving from donations from family members who were in progress during the marriage and which continue in separation with character. of regularity and continuity such as to have a stable and certain influence on the standard of living of the person concerned.
Civil Cassation Section VI, 10 June 2014, no. 13026
Article. 5 of the law n. 898/70 provides that the Court, with the sentence that pronounces the dissolution or the cessation of the civil effects of the marriage, recognizes the divorce allowance to the spouse who requests it when the latter does not have adequate means or in any case cannot obtain them for reasons objective, taking into account the income conditions of both spouses, the reasons for the decision, the personal and economic contribution made by each to the family and property management, and evaluating these elements in relation to the duration of the marriage.
In the absence of this requirement, the co-owned house cannot be assigned by the Judge as a replacement or as a member of the maintenance allowance (of separation or divorce) and remains subject to the rules on communion, in order to use and any division ( see ax multis Cass. 9079/2011; Cassation 6979/2007; Cassation 16398/2007; Cassation 3934/2008; Cassation 387/2012; Cassation 18440/2013; Cassation 12346/2014).
- art. 708 Code of Civil Procedure, which the President “also ex officio, after hearing the spouses and their respective defenders, gives temporary orders by order and
urgent that it deems appropriate in the interests of the children and the spouses “
- – in the art. 155- sexies cc that: “before the issuance, even provisionally, of the measures referred to in Article 155 , the judge can take, at the request of the party or ex officio, means of proof. The judge also provides for the hearing of a minor child who has reached the age of twelve and also of an inferior age where capable of discernment. If he deems it appropriate, the judge, having heard the parties and obtained their consent, may postpone the adoption of the measures referred to in Article 155 to allow the spouses, using experts, to attempt mediation to reach an agreement, with particular reference to
protection of the moral and material interests of children
| Art. 156 cc | Article 8 L. divorce |
| Effects of separation on property relationships between spouses. 1. The judge, pronouncing the separation, establishes for the benefit of the spouse to whom the separation is not attributable the right to receive from the other spouse what is necessary for its maintenance, if he does not have adequate own income. 2. The extent of this administration is determined in relation to the circumstances and income of the obliged party. 3. The obligation to supply the foods referred to in articles 433 and following remains unaffected. 4. The judge who pronounces the separation may require the spouse to provide a suitable real or personal guarantee if there is a danger that he may escape the fulfillment of the obligations provided for by the previous paragraphs and by the article 155. 5. The sentence constitutes a title for the registration of the judicial mortgage pursuant to article 2818. 6. In the event of default, the judge may order the seizure of part of the assets of the obligated spouse and order the third parties, who are also required to pay periodically, upon request of the entitled party. sums of money to the obligor, than a part of it | 1. The court that pronounces the dissolution or the cessation of the civil effects of the marriage can impose to the obligation to provide suitable real or personal guarantee if there exists the danger that he can escape the fulfillment of the obligations of which to articles 5 and 6. 2 The sentence constitutes a title for the registration of the judicial mortgage pursuant to art.2818 of the civil code. 3. The spouse who is responsible for the periodic payment of the check, after the formal notice by registered letter with acknowledgment of receipt of the obliged and defaulting spouse for a period of at least thirty days, can notify the provision in which the measure of the check to third parties required to periodically pay sums of money to the obliged spouse with an invitation to pay the sums due directly, giving notice to the defaulting spouse. 4. If the third party who has been notified of the provision fails to comply, the creditor spouse has direct executive action against him for payment of the sums due to him as maintenance allowance pursuant to articles 5 and 6. 5. If the credit of the spouse is obliged with respect to the aforementioned third parties, the proceeding judge and the creditors who took part in the execution shall provide the judge of the execution with assignment and allocation of the sums among the spouse to whom the periodic payment of the check is due. . 6. The State and the other bodies indicated in the art. 1 of the consolidated text of the laws concerning the seizure, attachment and assignment of salaries, wages and pensions of public administration employees, approved by decree of the President of the Republic January 5, 1950, n. 180, as well as other employers’ organizations to which the provision in which the measure of the allowance is established and the invitation to pay directly to the spouse who is due the periodic payment, cannot pay to |
| be paid directly to the beneficiaries.7. If justified reasons arise, the judge, at the request of a party, may order the revocation or modification of the provisions referred to in the preceding paragraphs. | the latter over half of the sums due to the obliged spouse, including checks and ancillary emoluments. 7. To ensure that the creditor’s reasons for fulfilling the obligations pursuant to Articles 5 and 6 are met or maintained, the judge may order the seizure of the property of the spouse who is obliged to administer the request upon request of the claimant. check. The sums due to the spouse who is obliged to pay the allowance referred to in the previous paragraph are subject to seizure and attachment up to half of the amount for the satisfaction of the periodic check as per articles 5 and 6. |
| Sum seizable: no limit | Sum seizable: up to half |
| Order – order for payment | Direct enforceable action against the third party, following extrajudicial formal notice. |
Article 155. The judge who pronounces the separation declares to which of the spouses the children are entrusted and adopts any other provision relating to the offspring, with exclusive reference to its moral and material interest.
In particular, the judge establishes the extent and the way in which the other spouse must contribute to the maintenance, education and upbringing of children, as well as the modalities of exercising his rights in relations with them.
The spouse to whom the children are entrusted, unless otherwise instructed by the judge, has exclusive exercise of power over them; he must comply with the conditions determined by the judge. Unless otherwise stated, decisions of greater interest to children are taken by both spouses. The spouse to whom the children are not entrusted has the right and duty to supervise their education and education and can appeal to the judge when he considers that decisions have been taken which are prejudicial to their interest.
The home in the family house is preferably, and where possible, the spouse to whom the children are entrusted.
The judge also gives instructions about the administration of the assets of the children and, in the hypothesis that the exercise of the power is entrusted to both parents, the concurrence of the same to the enjoyment of the legal usufruct.
In any case, the judge may for serious reasons order that the offspring be placed with a third person or, in impossibility, in an educational institution (Cod. Proc. Civ. 710).
In issuing the provisions relating to the custody of children and the contribution to their maintenance, the judge must take into account the agreement between the parties: the measures may be different with respect to the parties’ requests or their agreement, and issued after the assumption of evidence by the parties or officially ordered by the judge.
The spouses have the right to request at any time the revision of the provisions concerning the custody of the children, the attribution of the exercise of authority over them and the provisions relating to the measure and the modalities of the contribution.
Personal separation of spouses – Determination of maintenance allowance – Disputes – Appeal by the judge to the tax police – Eligibility. (Law 898/1970, article 5)
Article 5, paragraph 9, of Law 898/1970, in the new text of Article 10 of Law 74/1987, which, in the matter of recognition and determination of the divorce allowance, establishes that “in the event of disputes, the court arranges investigations on the incomes and assets of the spouses and on their actual standard of living, making use, if appropriate, also of the tax police ”, must be considered applicable by analogy, given the identity of the ratio, also in the matter of separation of spouses , with regard to maintenance allowance. The exercise of this power, which constitutes an exception to the general rules on the burden of proof, falls within the discretion of the trial court, and cannot also be considered as a duty imposed on the basis of the simple dispute of the parties regarding their respective economic conditions. There is, however, a limit to this discretion, to be found in the circumstance that the judge, being able to avail himself of this power, cannot reject the requests of the parties relating to the recognition and determination of the check in terms of the failure to demonstrate the assumptions on which they are founded, in this case under the same the obligation to make office assessments.
Cass. Section I, sentence 17 May 2005 n. 10344 (in Judas at the Right, Edition No. 25 of June 25, page 42)
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