Divorce, no check for those who received gifts

After the divorce, one of the spouses may be entitled to a periodic or one-off contribution, which is called a divorce allowance, to provide for their needs.
A condition for being entitled to divorce allowance is the impossibility of satisfying one's life needs independently, with an inability that must be completely blameless, i.e.
not determined by a lack of will.
The standard of living criterion has long been abandoned by the Court of Cassation, which however takes into account the economic and professional sacrifices made by spouses to contribute to the well-being and needs of the family.
For example, the housewife wife in mutual agreement with her husband who has had to sacrifice career and economic growth expectations is normally entitled to an adequate divorce allowance.
Among the numerous criteria to be taken into consideration, however, the Court of Cassation has recently also confirmed the evaluation of gifts received during marriage.
Depending on their value, in fact, the donations may have already adequately repaid the spouse for the sacrifices made, resulting in the inability to also receive the divorce allowance.
Who is not entitled to divorce allowance The general principle is that the ex-spouse who does not have sufficient economic means to live and cannot even obtain them is entitled to divorce allowance, obviously not by choice, provided that the other verses in better situations.
Undoubtedly, the ex-spouse who has earning capacity is not entitled to the allowance, for example because he or she can work (taking into account health, age, training and professional experience) or is in any case able to earn a living.
Consequently, even the ex-spouse who owns properties to sell or rent to obtain an income and so on is not entitled to the divorce allowance.
read also When is the ex-husband entitled to maintenance? What do donations between spouses have to do with the allowance? Gifts received during the period of marriage can determine an earning capacity in the ex-spouse who received them, but not only.
The Court of Cassation in United Sections with a 2018 ruling definitively clarified that the divorce allowance – unlike the maintenance allowance that follows the separation – also has a compensatory function.
In other words, if one of the spouses has sacrificed their expectations of professional growth to dedicate themselves to the family ménage, while allowing the realization of their partner's career ambitions, they are entitled to financial recognition for the sacrifices made.
He can thus receive a return for what he has contributed to achieving.
Donations are therefore extremely relevant, because they may have already fulfilled the compensatory function of the divorce allowance and lead to a reduction in the amount, if not the complete lack of the right to receive it when they determine earning capacity or the ex-spouse can still support himself.
read also Maintenance of ex-housewife wife, when it is due and what has changed No allowance for those who have received gifts From what has been said so far it should be easy to understand that the decisive gifts for the attribution of a divorce allowance are those of considerable value.
We can therefore undoubtedly exclude a large portion of the most common wedding gifts, including flowers, cups, perfumes and the like.
In most cases, even jewels do not cause large variations, also because they are usually intended for special occasions, they are not frequent and so on.
Depending on the particularities of the case, however, any object could fulfill the compensatory function, also taking into account the frequency of gifts and the economic capabilities of the donating partner.
In ordinance no.
5148 of 27 February 2024, the Court of Cassation denied divorce allowance to the ex-wife who had received more than one property as a gift during the marriage.
An example of this type leaves little room for doubt, but potentially there are many gifts that could have the same effect, even in proportion to the couple's wealth.
However, their value, the determination of the possible allowance and the maintenance capacity must be taken into account.
The spouse who has received frequent valuable gifts could be considered already rewarded, but nevertheless be deprived – without blame – of the means to live.
Not all donations concern income-generating assets such as real estate, so each case is different.
read also Do gifts given during marriage have to be returned after separation?