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FAMILY LAW LAWYER BOLOGNA, BUDRIO, SASSO MARCONI CASALE, SAN LAZZARO DI SAVENA HOW, THEN, TO THE GRIEVANCE PROFILE PERTAINING TO THE BIRTH OF A CHILD FROM THE UNION OF F. WITH THE NEW PARTNER, AND THE CONSEQUENT GREATER BURDEN THE SAME, IT MUST BE NOTED THAT ACCORDING TO THE JURISPRUDENCE OF THIS COURT, WHERE, IN SUPPORT OF THE REQUEST FOR REDUCTION IN ALLOWANCE FOR DIVORCE, ATTACHMENTS ARE OCCURRING FAMILY EXPENSES OBLIGOR, THE COURT MUST DETERMINE IF IT LEADS TO GENUINE IMPOVERISHMENT OF HIS SUBSTANCES IN VIEW OF A RENEWED COMPARATIVE ASSESSMENT OF THE SITUATION OF THE PARTIES, UNLESS THE OBLIGOR’S OVERALL FINANCIAL POSITION IS OF SUCH CONSISTENCY AS TO RENDER IRRELEVANT THE NEW CHARGES (CASS. CIV. SENTT. NO. 4551 OF 2012, N. 25010 OF 2007) .

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FAMILY LAW LAWYER BOLOGNA, BUDRIO, SASSO MARCONI CASALE, SAN LAZZARO DI SAVENA
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How, then, to the profile of the complaint relating to the birth of a child from the union of F. with the new partner, and the consequent greater burden of the same, it must be noted that according to the jurisprudence of this Court, where, in support of demand decreased allowance for divorce, attachments are occurring family expenses obligor, the court must determine if it leads to genuine impoverishment of his substances in view of a renewed comparative assessment of the situation of the parties, unless the overall financial position of ‘obligation is of such consistency as to render irrelevant the new charges (Cass. civ. sentt. no. 4551 of 2012, n. 25010 of 2007).

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Civil Cassation Sez. I, Judgment No. 6289 of 19/03/2014

AFOTOGRAFICA1Conduct of case

– The Court of Viterbo, pronounced the dissolution of the civil marriage contracted between FG and the BA (OMISSION), entrusted the only child of the couple, born on (OMISSION), both parents confirming its position, placed in court of separation, at the father’s house, and, what is still relevant to the present venue, recognized the right of B. to receive the divorce check, dismissing the extent of EUR 200 monthly.
He appealed against that judgment proposed F. reiterating the demand for allowance for divorce revocation, already raised at first instance, although in the original application he had asked for confirmation of the monthly contribution of 100 euros, justifying the change in demand with reference to the new marriage contract on which it was born a son, with consequent increase of family burdens.

– The Court of Appeal of Rome, with a judgment dated June 10, 2009, in partial reform of its judgment, has set Euro 100,00 monthly the amount of the divorzile due from B to F. .. The court of second grade, premise the economic disparity between the parties, he pointed out – although still relevant in this venue – the new marriage of F. and his recent fatherhood led to a worsening of his family expenses, while B. is the owner of ‘apartment where he lives and, though the state lacks a stable work, has secure profitability prospects, being still young, discrete cultural level, able to speak at least two languages, and specializing as a hairdresser.
Evaluated these elements also in relation to the duration of the marriage, which has been eight years and seven months, with discontinuation of cohabitation after even four years after the celebration of the marriage, the Court reached the reduction as mentioned above, the amount of the check divorce.

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– For the cassation of the judgment uses the B. basis of a single structured plea. Resists with its defense, the F .. The opposing party has filed a brief.
Reasons for Decision

– The Board has approved the adoption of a simplified form in the preparation of this judgment.
– With the unique, complex ground of appeal it alleges infringement and misapplication of Article. 5, sixth paragraph, of the law n. 898 of 1970, as amended by art. 10 of Law no. 74, 1987. The trial court would have proceeded, for the purpose of determining the extent of the check divorzile, an assessment of the economic conditions of the weaker partners through a judgment expressed in terms of hypothetical and abstract nature, rather than on that of the effectiveness and concreteness , performing an appreciation probabilistic and not based on real-world data with reference to the particular case. And also the birth of a child from the new union of F. could not compress the right of the former spouse allowance divorzile.
The illustration of censorship resulted in the formulation, in accordance with art. 366-bis cod.proc. civ., applicable in this case temporal, of the following legal questions: “Tell MISUSE Ecc.ma Court if: 1) the purpose of granting a divorce and the determination of its extent, in accordance with art. 5 of Law 1 December 1970, n. 898 (as amended by art. 10 of Law 6 March 1981, n. 74), the finding of the trial judge as to the economic conditions of the spouses and to the income of both is to be made ​​not in the abstract but in concrete avoiding to base the decision on mere probability appreciation, not based on real-world data with reference to specific cases; 2) the birth of a son in second dell’onerato wedding event is likely to result in the revocation of the check place against him in accordance with art. 5 of Law 1 December 1970, n. 898 (as amended by art. 10 of Law 6 March 1987, n. 74) “.

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– Censorship in its dual articulation, is unfounded.
3.1. – First of all, it is not correct that the trial court based its decision on the extent of the check in question divorzile on mere probability appreciations. In fact, the appeal court has first verified, on the basis of the disparity of the income situation of the spouses, the inadequacy of the means of B. compared to a similar standard of living to that enjoyed during the marriage.

So for the purpose of determining the extent of the check, the trial court used the moderators parameters of art. 5, sixth paragraph, of the law n. 898 of 1970, according to the consolidated guidance of this Court (see., For all, Cass., Sent.

20582 of 2010).
The quantification of the check in favor of B. is so occurred holding present, on the one hand, of entitlement upon the woman of the apartment owned by her village, and, on the other, its ability to work, not evaluated already hypothetical and abstract way, but rather the same way as concrete and multiple perspectives related to his still young age, as well as its expertise and knowledge of two languages.

3.2. – How, then, to the profile of the complaint relating to the birth of a child from the union of F. with the new partner, and the consequent greater burden of the same, it must be noted that according to the jurisprudence of this Court, where, in support the request for reduction in allowance for divorce, attachments are occurring family expenses obligor, the court must determine if it leads to genuine impoverishment of his substances in view of a renewed comparative assessment of the situation of the parties, unless the overall balance sheet obligor is of such consistency as to render irrelevant the new charges (Cass. civ. sentt. no. 4551 of 2012, n. 25010 of 2007).

If, therefore, the establishment of a new family is not an automatic assumption that requires the restatement of maintenance, it is equally wrong to assume that the legal system is based on a consideration of non-necessity of the choice of the debtor spouse. On the contrary, the right to the constitution of the family is a fundamental right even in the constitutional and supranational context of the European Convention for the Protection of Human Rights of 1950 (art. 12), and as such is recognized by the Charter of Fundamental Rights ‘European Union (art. 9), it is not possible to consider divorce as a limit beyond which the right is intended to degrade to the level of mere individual choice unnecessary.

In the present case, the fact of a new marriage and the birth of a child has been properly assessed as supporting the entity’s modification of alimony, also in correlation with the other being the fact the public service obligation F. exclusively the maintenance of the child born from his first marriage, and an income situation.

– Ultimately, the appeal must be dismissed. In applying the criterion of an unfavorable outcome, the costs of these proceedings, dismissed as from the device, must be charged to the applicant.
PQM

The Court rejects the appeal. It ordered the applicant to pay the costs, that liquid in a total of € 2,200.00, of which € 200.00 for disbursements, as well as accessories of the law.

It provides that in the event of dissemination of this provision are omitted the identity and other identification data pursuant to Legislative Decree. N. 196 of 2003, Art. 52.

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