In its judgment no. 4555/12, the Supreme Court has dealt with the issue of the assignment of the family home and the provision of child support to adult children.
As regards the first point, it transpired during the trial that the adult child in question, who lived with his mother in Lecce, had found a job in Turin, with the result that the father believed that the assignment of the family home was no longer justified since this presupposed the co-habitation of mother and child.
On the concept of cohabitation, there are two contrasting precedents: One is judgment no. 5857 handed down by the Italian Supreme Court on April 22, 2002, according to which the notion of cohabitation means, for the purpose of the case at hand, the child living permanently with one of the parents and does not entail the possibility of the latter occasionally returning home to visit such parent at weekends (in which case the relationship is one of hospitality, thereby excluding the right of the parent who hosts the child to be allocated the marital home in the absence of any right tenure and regardless of the lack of economic self-sufficiency of such child, which may, if anything, only affect the obligation to provide child support).The other is judgment no. 11320 handed down by the Italian Supreme Court on May 27, 2005, n. 11320, according to which in order for an adult child to be deemed to cohabit with a parent, it is sufficient – even in the absence of a daily cohabitation (which is prevented by the need for such child to be away from home for long periods – for example for study-related reasons) – that the latter maintain a stable connection with its parent’s home, returning home whenever its commitments allow it to do so (thus allowing such parent to provide, albeit sporadically, to the child’s needs ).
In the opinion of the Supreme Court Judges, the lower court did not correctly apply article 155 of the Italian Civil Code, insofar as the latter -whilst acknowledging that the adult child worked in the city of Turin and studied at the local Faculty of Engineering – had not ascertained whether and how often the child actually came back to the marital home assigned to the mother and had not ascertained the stability of the cohabitation with the mother – taking into account the reasons for child’s absence from the marital home, the distance between such marital home and the one to which the child had moved , as well as the actual periods of stay with the family of origin (these factors are, in fact, the grounds upon which to evaluate to whom the family home should be assigned).
The second ground of appeal concerned the fact that the alimony check was supposedly not owed to the adult child who, since he had found a job, was supposed to be economically independent.
On this issue, the Supreme Court held that the appealed judgment had wrongly held child allowance to be due since it had erroneously only looked at the question of whether the adult child was continuing with his studies.
The lower court should have instead ascertained whether the child could have – as regards the studies undertaken by it, the economic conditions of the family, the type of job and the professional aspirations pursued by such child, as well as the salary paid in the aforementioned job- achieved financial independence.
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