IL REVIREMENT DELLA CASSAZIONE IN TEMA DI ASSEGNO DIVORZILE: IN ATTESA DELLE SEZIONI UNITE.

The Author criticizes a recent revirement of the Court of cassation, according to which the divorce allowance should be granted only to the person deprived of sufficient means to live in dignity, that is, to meet the basic needs of life. However, the centrality of marriage-relationship imposes a reading of the rules governing the property consequences of the crisis, in the light of the constitutional principles of equal dignity and moral and legal equality of the spouses (arts. 2, 3 and 29 of Italian Constitution) and of the principle of solidarity, because it is valued the figure of the weaker spouse equitably balancing the economic positions of the spouses at the time of termination of marriage, although the protection of the weaker party is to accentuate for its greatest vulnerability. In our system the right to separate and divorce are fundamental rights of the person, because they guarantee his freedo and their exercise can not find an obstacle in the opposition of the other spouse. But this does not disregard the responsibilities and expectations related to marriage, on which the notion of post-marital solidarity is based, transposed by a decision of the United Sections of 1990, responding to the social need to protect the weaker spouse, respecting its personal dignity. The conflicting jurisprudence that emerged with the revirement raises a need for legal certainty. So the question was referred to the United Sections of the Court of Cassation; but it would be advisable, in the opinion of the Author, an intervention by the legislator, who can identify a solution of family equity. Otherwise, if the orientation of the Supreme Court will consolidate, according to the Author, the protection of the weaker spouse could be obtained only in a preventive way, enhancing the private autonomy of the spouses, with a good law on premarital agreements that overcomes the debate of the doctrine and jurisprudence about their admissibility. [ABSTRACT FROM AUTHOR]