Prenuptial agreements: It is legitimate to place as a condition for the assignment of an asset the failure of a marriage

In its judgment no. 23713 of 2012, the Supreme Court has taken a small step towards recognizing the validity of agreements executed by the spouses before they get married that are intended to regulate their relationship in the event that their marriage fails.

Although this path is still long and full of pitfalls, Italy has timidly started to align itself with the case law of many other countries – especially the United States of America – where Prenuptial agreements have been recognized for decades.

The judgment in question relates to divorce proceedings in which the husband, who had been summoned in judgment, requested by way of counterclaim that the judge order that a property owned by his wife be assigned to him, citing in support of his request the existence of an agreement between the spouses to this effect.

The day before the wedding, the couple had, in fact, signed an agreement whereby, by way of reimbursement of the expenses incurred by him in restructuring the building which was to become the family home and which was owned by the wife, the latter had undertaken, in case of failure of their marriage, to transfer to her husband another property owned by her.

According to the traditional approach adopted by Italian case law, such agreements would be considered void on the grounds that they infringed the provision set forth in article 160 of the Italian Civil Code and were contrary to public policy.

The predominant body of Italian case law denies the validity of such agreements on the basis of the concept that, in these prenuptial agreements, the spouse’s matrimonial status is being traded insofar as a “price” is paid by one spouse to another so that the matrimonial bond may be more easily dissolved. These agreements would, therefore, condition  the procedural behavior of the often economically weaker spouse, causing the latter not to defend himself or herself in view of an imminent economic benefit (Italian Supreme Court, judgments nos.1810 handed down on February 18, 2000 and 2076 February 12, 2003).

In the present case, however, the Supreme Court held – thereby circumventing the objections raised by traditional case law – that it was not dealing with a real prenuptial agreement but rather with a case of datio in solutum, whereby the parties agreed that an asset should be given in order to dissolve their legal relationship.

The Supreme Court held that we are of the opinion that, during the marriage (and before the family crisis), the spouses have a duty to mutually support each other, thus mutually satisfying each other’s material and spiritual needs.

It can certainly be envisaged that between spouses economic relations will be suspended, upon their express agreement, for so long as the marriage lasts, and will provisionally be reactivated once they separate and then definitively once they divorce.

Although the innovative scope of such decision cannot certainly be doubted, the inherently contradictory nature thereof cannot be hidden.

The Supreme Court, which is aware of how restricted is the freedom of contract in family relations and of the ever-growing need to derogate therefrom with prenuptial agreements, continues to remain on positions which are in line with the traditional approach.

Proof of this is the fact that the agreement in question was never qualified as a prenuptial agreement, but rather as a contract.

Such an approach is likely to give rise to confusion among legal practitioners, who will instead call for a clear indication of a new path which is in line with the laws of other European and non-European countries.

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