PRaticament and prudence against romanticism. Italy also slowly walks in the wake of the United States where it is (good?) Norm to present itself at the altar with a lawyer and a contract to protect their interests. With a historical sentence The Court of Cassation has opened to the possibility of writing premarital agreements in our country. The judges considered a agreement between husband and wife in the event of separation. The prohibition of making pacts on the check and contribution to the needs of the family remains, but it is still a decision that opens A new horizon. According to many marriage lawyers, admit to Italy the premarital pacts would avoid most of the disputes.
Premarital pacts in Italy, historical opening of the Court of Cassation
The protagonists of this turning point are Mantovani. Their separation took place in 2019, almost eight years after they signed one private writing in which they had foreseen that, if love was finished, he would give her a sort of “refund” of 146,400 euros. That is, 61,400 for the mortgage of the house that the woman had co-set up and 65 thousand for the purchase of furniture or for the small expenses that had taken place. On the other hand, in front of this sum, she renounced some assets including a boat. He then appealed before the Court of Appeal of Brescia, asking to declare the nullity of private writing “by opposition to public order”.
He did it by appealing to theArticle 160 of the Civil Code according to which “spouses cannot, through private agreements, modify the legal provisions who regulate their property and personal relationships deriving from marriage “.
But now Ordinance 20415 of the Cassation has judged their “ancient” pact lawful, like a real pre-nup. Of course, the real premarital agreement, that of American shows, is another thing. In Italy it does not exist. But recognizing the legitimacy of that agreement puts us on that road.
Private writings that are worth as legitimate premarital agreements
This is the last jurisprudential episode in terms of agreements stipulated during marriage in view of the eventuality of separation or divorce. The separation is not understood by the Cassation as a “cause” of the agreement, but as an event on which the effectiveness of the agreements entered into by the spouses depends. In the specific case, the obligation to return the money given by his wife to the husband.
The premarital pacts, but also those stipulated in the course of marital life, are therefore legitimate and impossible in case of separation or divorce.
Italy as the US. The most sensational VIP pre-nups
We are far from the contents of the contracts stipulated by the overseas VIP couples. See Jeff Bezos who, after the blow received by the first wife, wanted Lauren Sanchez to sign a contract to clarify that It won’t be up to her anything, in case of goodbye. Apart from a few tens of millions of dollars.
But he made news to each change the pre-nup by Melania Trump, Signed in 2005 but changed several times (in his favor). The last to insert financial protection clauses for her and for her son Barron, claiming that he was less protected than the other heirs.
In the United States we often agree even on “sex”. To be done 4 times a week in the case of J lo and Ben Affleck. At least one in the case of Mark Zuckerberg and his wife Priscilla Chan. Catherine Zeta-Jones Instead, it would receive one million dollars for each year of marriage, but cannot fatterate more than ten kilos.
The difficulty of accepting premarital agreements in Italy
In Italy few have tried us because so far it was complicated. This because In our country, marriage is intended as an institution of “public order” and for this reason preventive negotiations between husband and wife are not tolerated on the end of their union. But, for example Flavio Briatore and Elisabetta Gregoraci would have signed a post -marriage agreement to protect his image. She could not have been resumed with another for 3 years after breaking.
According to marriage lawyers, the opening of the court is positive. The pacts should not be seen as a “non -confidence”, but as a way to have less quarrels and long and expensive processes, as well as with the swelling of the courts.
The separation of assets and the bills on premarital agreements
Of course the rulings of the Cassation they do not law but give the line. When a couple separates, even from us today, it could resort to premarital agreements because they are to be considered legitimate.
Law proposals to establish the premarital pacts there are but they are firm in the Senate. To make them actual, much of the code must be changed. The only real premarital pact in our country is the “Separation of goods”, for which it is enough to put an ICS in front of the mayor or the priest.
The protection of minor children, the only exception
The judges of the Court of Cassation, in the reasons for their decision, have made a jurisprudential excursus to make it clear that in recent years “the private negotiating autonomy of the spouses has been gradually enhanced, even in the pathological phase of the crisis”.
They can be regulated not only the economic issues, but also the personal ones of family life, such as the assignment of children and the methods of visiting the parents. “Alone If the pact in view of the family breakdown concern personal and property relationships relating to minor children of ageits validity and effectiveness – reads the Cassation sentence – will always be subject to a control of legitimacy, aimed at verifying his compliance with the best interest of the minor».
While “There is no imperative rule – they specify – that prevents the spouses, before and during the marriage, to recognize the existence of one debt towards the other and to subordinate their return to the event, future and uncertain, of the separation».
For this reason, according to the Court of Cassation, the private writing of the former Mantuan couple “is perfectly lawful”, “regulating their asset structure in a free and balanced way.