- Posted by Francesca Dimunno
Do I have the right to a portion of my ex-husband’s end-of-service payment?
With ordinance n. 7239/2018, the Italian Supreme Court reiterated the principle according to which no portion of the end-of-service payment, “trattamento di fine rapporto” of the ex-spouse is due if his/her right to receive the indemnity dates back to before the application for the divorce cheque.
Therefore, the Italian Supreme Court rules that the crucial moment that decrees whether the divorcee has the right to a portion of the end-of-service payment together with the divorce cheque is the time when the right to the indemnity began, not the moment when the sum is actually in the hands of the ex-spouse.
The proportional amount, instead, if due, will be determined on the basis of the real duration of the wedlock.
Assignment of a proportion of the end-of-service payment clearly has an assistential aim even if this sum is the fruit of separate activities carried out by the ex-spouse, because if the wedlock had continued the divorcee would certainly have enjoyed a part of it. The Italian Constitutional Court “Corte Costituzionale” has established that the spouse who has in some way contributed to the accumulation of the end-of-service payment has the right to enjoy a part of it “in as much as the contribution of the partner during wedlock cannot but have a determinant role” also in the accumulation of the assets of each one and of the couple as a whole (Corte Costituzionale n. 23/1991).
In the light of the above, it is essential to determine the exact moment when the end-of-service payment became due. To make a concrete example, if the ex-spouse’s right dates back to before the application for divorce then the divorcee has no right to claim a portion of the sum, because the amount of the end-of-service payment will already have entered the ex-spouse’s list of assets and will therefore also have been taken into account when calculating the overall assets on which the divorce cheque is based.
Therefore, in such cases the assistential and compensation function will already have been fully and sufficiently satisfied in the calculated divorce cheque sum.
Instead, if the end-of-service payment comes to maturity at a time when the application for divorce is being made or has already been concluded, then the divorcee can apply, also in a separate suit, for a portion of the ex-spouse’s end-of-service payment.
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