Giambrone & Partners family team successfully obtained a ruling from the Court for a child to be placed in the sole custody of his father in Germany and the revocation of the maintenance allowance in favour of his spouse.
The Court of Varese, in a decision dated 14 September 2023, granted the application of a father - assisted by Senior Partner Alessandro Gravante and Senior Associate Alessia Federica Arbustini of the Family Team of Giambrone & Partners in the divorce proceedings - who had requested that the Court order the placement of his 11-year-old son with him in Germany and the revocation of the maintenance allowance in favour of his wife that had been agreed upon by mutual consent at the time of the separation.
In relation to the placement of the couple's two minor children, the parties had mutually agreed at the time of the separation that the children would remain living with their mother in Italy, that the father would contribute to their maintenance in the sum of €1,000 per month.
In the divorce proceedings, the mother argued that the child's move to Germany, which had taken place a few months before the filing of the application, was not in the child's best interests, as this solution had negatively altered family relations, limiting, in particular, the relationship between brother and sister, who were unable to see each other frequently because of the distance between their separate domiciles.
The father, for his part, pointed out that the child's move abroad had been made in accordance with the child's preferences and that, although the child had recently moved abroad, he was already well integrated into the school and social environment.
With regard to the spousal maintenance allowance, the wife requested its confirmation, claiming that the economic conditions of the parties had not changed since the separation and that there was a clear income gap between the two parties.
The husband, on the other hand, asked for the spouse's allowance to be withdrawn on the grounds of both the reduction in his income compared to that received at the time of the separation agreement and the fact that he had started a stable relationship with another woman with whom the father had another child, with the result that he had to additional financial responsibilities in that he had to contribute to of his new household as well.
The Court of Varese ordered the hearing of the two minor children.
In its judgment of 14 September 2023, the Court noted that the son declared that he was happy to live in Germany, where - in addition to being able to rely on the presence of his father, with whom he has an excellent relationship - could also count on a stable and consolidated network of friends, attends school and takes part in the sports and recreational activities he himself has selected.
The Court therefore concluded that, despite initial difficulties at the time of the move, the child had acclimatised well to the new context, so that it saw no reason to change his current placement, thus confirming that he should be placed in his father's home in Germany.
With regard to the request to withdraw the maintenance allowance in favour of the wife, the Court referred to the well-known ruling of the United Sections of the Supreme Court of Cassation (judgment no. 18287/2018), which considered it appropriate to abandon the rigid distinction between the attributive and determinative criteria of divorce allowance, outlining a new function of divorce allowance, welfare and equally compensatory and equitable, in which the attributive and determinative criteria are combined in the so-called compensatory welfare criterion.
The Supreme Court has therefore identified an initial phase in which the Court must ascertain the existence and extent of the parties' economic-income imbalance; once the imbalance has been ascertained, the Judge must investigate the causes of said imbalance and the investigation must be carried out by making use of what had been indicated as the so-called determinative criteria.
In this case, on one hand, the Court established the existence of an imbalance between the parties' respective incomes, noting that this imbalance had to be addressed by taking into account the husband's additional expenses for taking care of the children from the first marriage and his own new family.
On the other hand, the Court stated that the income imbalance between the parties was not due to decisions or life choices made by the spouses during their marriage, as the wife had not demonstrated that her work prospects or professional expectations had been in any way limited as a result of the choices made by the married couple.
For these reasons, the Court granted the husband's application for revocation of the divorce allowance.