Maintenance and support obligation in Italy

When it concerns maintenance obligations, the Codice civile establishes an order of priority among the subjects called to provide. The spouse is always the first obligated, since the matrimonial bond imposes a duty of direct and priority assistance. In their absence or incapacity, one passes to the support obligation of children, including adopted ones, who have the obligation to support parents in economic difficulty.

In the context of support of adult children, Italian law provides that such obligation persists until the child has reached adequate economic autonomy. This aspect is particularly relevant when the beneficiary or the obligated is a person residing abroad, since international and Italian regulations must be harmonised to ensure respect for the rights of all the parties involved.

If even the children cannot take charge of the situation, the next descendants take over, such as grandchildren, followed by parents and the closest ascendants. Even acquired relatives, such as sons-in-law and daughters-in-law, can be called to contribute, provided that their economic resources allow it. In case of necessity, the obligation can fall on parents-in-law and, only as a last resort, on the brothers and sisters of the beneficiary.

In extraordinary or emergency circumstances, the judge can decide to attribute temporarily the entire burden to only one of the obligated parties, leaving them the right to take action against the others once the situation is resolved.

The maintenance obligation is not permanent and can cease in various specific situations. For example, if the beneficiary manages to reach economic stability, such as obtaining an occupation that ensures them sufficient income, the obligation can end.

In the case of support of adult children, the cessation of the obligation occurs at the moment in which the child obtains stable employment adequate to their competences, although this assessment can vary based on the economic context and on the opportunities offered by the labour market.

Other factors that lead to cessation include significant changes in the personal life of the beneficiary, such as marriage or a new cohabitation, which offer the beneficiary alternative economic support. Naturally, the obligation also extinguishes with the death of the beneficiary or of the obligated. Each request for modification or cessation of the obligation must be submitted to the approval of the judge, who will carefully assess the circumstances and economic conditions of the parties involved.

The maintenance obligation is regulated by a series of principles that define its peculiarities. The sums paid cannot be requested back, making the maintenance credit not refundable.

Furthermore, the right to maintenance cannot be ceded, renounced or compromised, although the beneficiary can decide not to exercise it. Even executive actions such as garnishment are limited, and maintenance is excluded from the bankruptcy mass to protect the beneficiary.

For the right to maintenance to arise, specific prerequisites must be respected.

• State of need of the beneficiary

To obtain the right to maintenance, the beneficiary must be in a condition of economic need that prevents them from satisfying primary necessities. This situation occurs when a person is not able to provide autonomously for essential needs such as food, housing, clothing or medical care. Case law, as clarified by the Corte di Cassazione with judgment no. 25248 of 2013, specifies that the state of need must be assessed case by case, taking into account the real economic conditions of the person concerned. In the assessment, all the means available to the beneficiary are included, such as any income deriving from properties or other assets in usufruct, to understand whether they are sufficient to ensure the satisfaction of the fundamental necessities.

An important point of distinction between maintenance allowance and support allowance lies precisely in the scope of the respective benefits. While maintenance serves to cover exclusively essential needs, the support allowance has a wider scope, aimed at preserving the standard of living that the beneficiary had during the marriage.

• Impossibility to maintain oneself through a work activity

Another condition necessary to obtain maintenance is the inability of the beneficiary to support themselves with their own work. This requirement requires a specific assessment of the working capacities of the interested party, taking into account factors such as age, any physical limitations or illnesses, and professional competences. According to the Corte di Cassazione (judgment no. 770 of 2020), the right to maintenance exists only if the maintenance applicant demonstrates both the state of need and the impossibility, total or partial, of carrying out work adequate to their conditions.

In the case in which the interested party fails to prove working invalidity or the lack of employment opportunities compatible with their aptitudes and social conditions, the request for maintenance can be rejected. The Cassazione has also underlined that, although an illness can compromise some specific working capacities, this does not exclude the possibility of carrying out other generic activities. Therefore, the applicant has the burden of demonstrating not only the state of need, but also the impossibility of finding employment.

• Economic availability of the obligated party

In addition to the condition of the beneficiary, it is essential that the obligated party have the economic means to face the disbursement of maintenance. The possibility of bearing the payment depends on the financial situation of the obligated party, who must be able to fulfil it without compromising their own sustenance. The absence of sufficient resources from the obligated party can constitute a valid reason not to recognise the right to maintenance.

• Existence of a personal link between obligated party and beneficiary

Finally, the right to maintenance can arise only if there is a legal or personal relationship between the beneficiary and the obligated party. This bond, regulated by the Codice civile, is based on ties of kinship, affinity or other specific relationships, such as usufruct or donation. The law clearly identifies which subjects can be obligated to provide maintenance, based on a hierarchical order that privileges the closest family members.

With these prerequisites, the right to maintenance is configured as an essential legal instrument to ensure economic support to those who find themselves in a state of necessity. However, its concession depends on a careful assessment of the criteria indicated above, which must be demonstrated by the applicant with concrete and detailed proofs.

There must be a family or legal relationship between obligated party and beneficiary, such as a kinship tie or a donation received. Furthermore, the beneficiary must be in a condition of objective need, such as to prevent them from maintaining themselves autonomously. Finally, the obligated party must have sufficient economic resources to face the request without compromising their own sustenance.

The judge, in case of disputes, establishes the modalities and the extent of the maintenance benefit, which can consist of a periodic allowance or in benefits in nature, such as hospitality in the home of the obligated party.