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The Maintenance Allowance for Non-Independent Adult Children

It sometimes happens that jurisprudential decisions, especially those that touch social or political current affairs, are misrepresented by the press or reported by the same with excessive emphasis.

It was therefore not entirely surprising to the undersigned to read a comment on an order of Cassation, no. 19077 of 15/7 - 14/9 2020, in which it is interpreted as meaning that it cannot be said that the adult child has achieved economic independence when the child's jobs are not of a stable nature, a circumstance that would typically occur with fixed-term contracts.

It sometimes happens that jurisprudential decisions, especially those that touch social or political current affairs, are misrepresented by the press or reported by the same with excessive emphasis.

It was therefore not entirely surprising to the undersigned to read a comment on an order of Cassation, no. 19077 of 15/7 - 14/9 2020, in which it is interpreted as meaning that it cannot be said that the adult child has achieved economic independence when the child's jobs are not of a stable nature, a circumstance that would typically occur with fixed-term contracts.

In reality, if you read the order, it turns out that the Supreme Court had said something else, indeed it had not said anything on the merits, since it is a procedural ruling of inadmissibility.

But let's go in order.

With one of the reasons for the appeal (the others are not of interest here) the appellant denounced, in relation to art. 360 c.p.c., paragraph 1, n. 3, the violation or false application of art. 147 c. c., noting that from the preliminary investigation carried out in the first instance and from the daughter's own statements it emerged that she had gone to work, albeit with temporary and part-time contracts, and had therefore achieved economic self-sufficiency. In the applicant's opinion, the Territorial Court had not applied the principles affirmed by the jurisprudence of legitimacy on the subject of the obligation to support adult children.

It was therefore the complaint of a defect of violation of the law, and in this regard the Court preliminarily recalls its previous and peaceful jurisprudence, according to which "the defect of violation of the law consists in the deduction of an erroneous recognition, by the provision contested, of the abstract case brought by a law and therefore necessarily implies a problem of interpretation of the same; vice versa, the allegation of an erroneous recognition of the specific case by means of the findings of the case is external to the exact interpretation of the law and pertains to the typical evaluation of the trial judge, whose censure is possible, in the legitimacy stage, under the aspect of the defect in motivation: the distinction between one hypothesis and the other - violation of the law in the strict sense of cause of the erroneous recognition of the abstract legal case, or erroneous application of the law due to the lack of or contradictory reconstitution rupture of the specific case - is marked by the fact that only the latter complaint, and not the first, is mediated by the disputed assessment of the findings of the case "(on this point see also Cass. n. 24054/2017).

It was therefore the complaint of a defect of violation of the law, and in this regard the Court preliminarily recalls its previous and peaceful jurisprudence, according to which "the defect of violation of the law consists in the deduction of an erroneous recognition, by the provision contested, of the abstract case brought by a law and therefore necessarily implies a problem of interpretation of the same; vice versa, the allegation of an erroneous recognition of the specific case by means of the findings of the case is external to the exact interpretation of the law and pertains to the typical evaluation of the trial judge, whose censure is possible, in the legitimacy stage, under the aspect of the defect in motivation: the distinction between one hypothesis and the other - violation of the law in the strict sense of cause of the erroneous recognition of the abstract legal case, or erroneous application of the law due to the lack of or contradictory reconstitution rupture of the specific case - is marked by the fact that only the latter complaint, and not the first, is mediated by the disputed assessment of the findings of the case "(on this point see also Cass. n. 24054/2017).

Coming to the examination of the appeal, the Court notes that the appellant, while formally complaining of the violation of the law, actually criticized the factual reconstruction made by the trial judge. And in fact the violation of the law reported (in particular of Article 147 of the Civil Code) had been proposed by the applicant on the basis of the essential assumption that the economic self-sufficiency of the adult daughter was proven in question and was therefore mediated by the evaluation of the procedural results, assuming a different reconstruction, in fact, of the specific case. "The Territorial Court, on the other hand - ruled the Supreme Court - with adequate motivation, examined the facts attached by the father in support of the request for revocation of the maintenance contribution in favor of the daughter and considered, based on the preliminary findings (paychecks, residence daughter's registry at the maternal home, nature and remuneration of the documented employment relationship and termination of the previous one carried out in Switzerland), that the girl had not fully achieved economic autonomy, noting her right to maintain a standard of living corresponding to economic resources of the family and, as far as possible, similar to that previously enjoyed. The conviction of the judges on the merits was therefore based on an unquestionable factual finding in the context of legitimacy."

These considerations by the Court inevitably resulted in a declaration of inadmissibility of the appeal, an extremely frequent outcome of appeals to the Supreme Court in recent years, the result of a very rigorous interpretation of the content requirements to which the appeal must comply.

But this also means that the Supreme Court has not entered into the merits and has not ruled that a child with a fixed-term contract is always entitled to the maintenance corresponding to the family's resources and the standard of living at the time of separation. , but limited itself to rejecting the request, without enunciating any principle of law, because it was misplaced and tended to revise the fact, which cannot be criticized in the Supreme Court. At the most it can be said that the Court has confirmed the procedural principle (which is moreover obvious) regarding the incensurability of the decision of the Court of Appeal on the point of self-sufficiency, because it was provided with suitable reasons, despite the fact that the daughter in question had a temporary job.

Having said that, forgetting the ordinance, let us in any case go to deal with the question of merit, as it transpires from the specific case underlying the sentence, because we believe that it is certainly of interest to the reader.

The starting point is Chapter II of the first book, Title IX of the Civil Code (in the 2013 text) which provides for the power of the Judge to arrange for a periodic allowance in favor of the children to be determined considering, among other factors, the needs of the child, allowance that is also due for adult children "not economically independent". This allowance, according to art. 337 septies of the Italian Civil Code, belongs directly to the entitled person (i.e. the adult child), unless otherwise determined by the Judge.

On this last point it is necessary to cite an order of the Supreme Court (n.17183 of 16/7 - 14/8 2020), slightly earlier than the one in question but which, unlike the latter, was rightly greeted as a cornerstone of jurisprudence on the subject, because it overturned what was stated by previous and consolidated jurisprudence that had granted the parent already "resident" the right to continue to demand payment in their own hands of the allowance for the maintenance of the child who has come of age unless requested directly by the latter.

We read for example in Cass. n. 18008/2018 that "the separated or divorced parent required to support the eldest child who is not economically self-sufficient and cohabiting with the other parent, cannot claim, in the absence of a specific request from the child, to perform his or her service in respect of this last instead of the instant parent ".

This aspect is of capital importance to understand what the various decisions that have taken place over time affirm. The "placer" parent was in fact in the privileged position of those who continued to enjoy this qualification, receiving jure own the maintenance allowance for the child, even when the latter came of age, despite the fact that with this event the custody in technical sense, given the child's freedom to establish where he believes his residence.

The unjust privilege, however, is swept away by the summer order of the Court, which completely overturns the previous dicta, stating that the "resident" parent will no longer have the right to take legal action against the obliged parent and that any payment of the contribution in his mani may be challenged by the adult child, holder of the right iure.

Having said that with regard to the ownership of the right, the prevailing jurisprudence (see for all still a recent order of Cassation, n.11186 of 14/2 - 11/6 2020, n. 11186, on the basis of sentence n. 2014) for the purpose of recognizing the obligation to support adult children who are not economically independent, it has ruled that the trial judge is required to evaluate, with prudent appreciation, case by case and with proportionately increasing criteria of rigor in relation to the age of the beneficiaries , the circumstances that justify the continuation of the aforementioned obligation, it being understood that this obligation cannot be extended beyond reasonable limits of time and measure, "since the child's right is justified within the limits of the pursuit of an educational project and a path of training, respecting his abilities, inclinations and (provided they are compatible with the economic conditions of his parents) aspirations ".

This very significant step calls the children to self-responsibility: they must strive and find a way to self-maintain themselves, overcoming the welfare principle of the past jurisprudence, and therefore completely in line with the now well-known jurisprudential tendency (a starting from Cass. 11504/2017), which has released forever the determination of the divorce allowance to the standard of living enjoyed during the marriage.
Explicit in this regard is the aforementioned ordinance no. 17183/2020: "it is necessary that the concrete economic situation <of the adult child> is not the result of unreasonable choices and essentially aimed at establishing a regime of counterproductive welfare, in disinterest in the search for due economic independence".

Consistently with the principle of self-responsibility it will therefore be the child (and no longer the burdened parent, as per past jurisprudence: Cass no. 5088/2018) to be subject to the burden of proof of economic non-independence: "... reached the age of majority , eligibility for income is presumed, which, in order to be won, requires proof of the circumstances that integrate the right to further maintenance ".

The overturning of the burden of proof increases the pressure on the children, on whom, it must now be believed, also weighs the burden of proving that the persistence of a condition of economic non self-sufficiency, even after the exhaustion of the path that normally leads the achievement of skills and qualifications functional to the exercise of a profession, does not depend on their "innocent inaction" (the term is taken from Cass. n. 5088/2018). That is, you will have to prove at least that you have tried to find work (highlighting from time to time, and depending on the circumstances, registration in job placement lists, participation in competitions, response to advertisements, etc.). And the adult child who, despite being in the condition of being independent, cannot claim the allowance due to indolence or when, worse, has voluntarily withdrawn from work.

Returning to the underlying theme in the order in question (but, as we have seen, not directly covered by it), even in the case of a fixed-term job the Judge (of merit, warns the Supreme Court!) Will have to analyze whether, despite the its apparent precariousness, it is however symptomatic of the achieved independence. And to this end he will have to examine the details of the contract, the quality of the employer, the age and professional maturity of the child and the social economic context, in the light of which a fixed-term contract does not necessarily correspond to an absolute precariousness, but it can instead be symptomatic of a significant state of progress - perhaps after more provisional experiences such as internships and scholarships - of an occupational path that is at least basically stable.

In this regard, for example, a judge of merit (Court of Appeal of Catania 3.11.2016) considered the child hired with a seasonal or fixed-term contract to be economically self-sufficient: "The obligation to maintain adult children ends when they enter the world of work, in accordance with the qualification and the economic level of the family, demonstrating adequate working capacity: therefore a child who works in hotels with seasonal and fixed-term contracts can be considered economically autonomous ".

Finally, note that once the judges have stated that the allowance is not due for having achieved economic independence for the child, there is no turning back. Lastly, Cass no. 12063/2017, invested in a case in which a son had returned to live with his mother (initially "nominee") following a dismissal. In fact, the Supreme Court writes that "the maintenance allowance ... is to be excluded when the latter, although not economically self-sufficient in the past, has in the past begun to carry out a work activity, thus demonstrating the achievement of an adequate capacity and causing the termination of the corresponding maintenance obligation (if foreseen) by the parent. Nor is the occurrence of further circumstances, such as dismissal in this case, which cannot give rise to a maintenance obligation whose conditions have already ceased "(on this point, see . also Cass. n. 21773/2008).

A perhaps excessive rigor, which the case law on the merits will certainly be called upon to temper by reviewing case by case, in extreme situations, the circumstances that may justify the continued maintenance obligation and not only the maintenance obligation pursuant to art. 433 of the Italian Civil Code which is only residual and based on various assumptions (the state of need and the impossibility of providing for one's own maintenance) and to which only the child is legitimized and certainly not the parent, even if still cohabiting.


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Gianfranco Di Garbo's picture

Gianfranco Di Garbo is a lawyer active in civil and commercial litigation, including domestic and international arbitration.

Born on 30.5.1951 and graduated with honors in jurisprudence in Genoa in 1972, he completed his studies attending to programs at  the London School of Economics (London) and the Academy of American Comparative Law (Dallas).
Gianfranco has been a member of the bar since 1977 and has been a member of the Special Register of Higher Courts since 1993.
From 1985 to 2019 he was international partner of the Milan office of the international law firm Baker & McKenzie, of which he was managing partner from 1995 to 1998 and from 2000 to 2003, coordinator of the Labor Law department from 1988 to 2010 and coordinator of the Litigation group (ordinary and arbitration) from 2012 to 2019.