The Court of Cassation opens to the premarital pacts: green light to the agreements between spouses in the event of separation

An important signal of opening compared to the validity of the premarital and marital agreements in Italy. With ordinance no. 20415, filed in recent weeks, the first civil section of the Court of Cassation recognized the validity of a private writing signed by a couple years before the separationwith which assets regulated in view of a possible marriage crisis.

The Court clarified that “there is no imperative rule that prevents the spouses, before or during the marriage, of recognize the existence of one debt towards the other and to subordinate their return to the future and uncertain event of the separation conjugal ».

This is a significant step, since in the Italian legal system, unlike many European and Anglo -Saxon countries, the premarital pacts have traditionally did not have an official recognition and have been considered null. This position is based on the principle that the rights and duties deriving from marriage, such as the obligation to maintain, cannot be regulated privately before the marriage bond begins, since The family is protected as an institution of public interest And not simply as a contract.

The order of the Court of Cassation considered legitimate an agreement with which, in the event of separation, The husband undertook to return to his wife the expenses you incur for the renovation of a house owned. The Court qualified this agreement as an atypical contract, governed by article 1322 of the civil code, whose effectiveness is conditioned by the future and uncertain event of separation.

In practice, separation is not considered the cause of the agreement, but the event on which the effectiveness of the pact depends. This means that The parties can establish asset clauses that are activated only if the end of the wedding occursthus opening the leads to a new regulation of the economic aspects between spouses.

However, it should be noted that this ruling does not cancel the previous decisions of the Cassation, which had reiterated the nullity of the premarital and marital agreements in view of the crisis, especially when these concern maintenance and other mandatory duties provided for by law. However, The sentence represents a clear sign of jurisprudential evolution, which could anticipate a wider opening towards the legitimacy of premarital pacts, now widely recognized in other systems with comparable legal civilization levels.

This trend is part of a larger context of legal and cultural renewal, also favored by the generational change of the judges and by an increasingly intense confrontation with foreign systems.

In essence, While keeping some fundamental limits stop, the Cassation seems to open the way for greater private autonomy of the spouses in the regulation of their property relationships, offering more effective tools for the preventive management of the economic aspects of marital life.

An evolution that reflects the changed social needs and that could reduce disputesfavoring transparent and shared agreements from the beginning of the wedding.