'Tenor Of Life' Now More Tenuous?

Changing times for spousal maintenance on divorce and separation in Italy and England

Last month, employers in Britain with more than 250 staff were required by law to publish gender pay gap figures. Figures produced by statisita.com on the gender pay gap in Italy in 2017 reveal that women earned on average about Euro 15 per hour less than men.

Such figures are significant for a number of reasons, one being whether the opportunities exist for women to secure sufficient remuneration (ultimately leading to financial independence) following divorce. A recent shift in the approach to spousal maintenance on divorce in Italy has put this issue into sharper focus, whilst in England, the courts are still grappling with the veracity of the perhaps inaptly-named 'meal-ticket for life' maintenance award.

The sea change in Italy comes from the Supreme Court decision from the 'First Section' (sentenza No 11504/17) involving the divorce of Lisa Lowenstein and Vittorio Gritti which overturned the practice embraced over the previous three decades, whereby a married couple's standard of living was the guiding principle in determining the amount of maintenance payable to a spouse on divorce. Ms Lowenstein had been awarded E2m per month by the Italian Court of Appeal, but also wanting her debts paid, she appealed to the Italian Supreme Court. The Court of Cassation rejected her claim and held that divorcees who have sufficient independent resources or who are capable of working will not automatically receive maintenance payments. In the past, these had been assessed on the basis that ex-spouses had the right to retain their 'tenor of life' established during the marriage. Moreover, the Supreme Court stated that the obligation to pay an ex-spouse could be an obstacle to a divorcee starting another family, interpreting such scenario as being a right guaranteed by the ECHR. Alternative interpretations of Art 8 aside, this case probably hails the end of large divorce settlements in Italy - a prominent example being the E1.4m (£1.2m) per month payable by Sylvio Berlusconi to his second wife following their separation in 2009. The case sends also sends a clear signal that the Italian courts no longer put 'first families first'.

Compare the current state of play and the approach to spousal maintenance in the English Court where, incidentally, the 'first family first' principle is alive and well.

In England and Wales, whilst we can look to the case of SS v NS [2014]...

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