Cass. civ., section VI – 1, ord., 23 September 2022, n. 27963
President Meloni – Speaker Caradonna
It was noted that:
1. With sentence of 25 March 2021, the Court of Appeal of Genoa rejected the appeal proposed by PC and the cross-appeal proposed by BM against the sentence of the Court of Savona no. 216/2020, issued on 26 March 2020, which had pronounced the termination of the civil effects of the marriage celebrated on (omitted) and had charged the B. the payment of the sum of Euro 600.00 per month, as a contribution for the maintenance of P.
2. The Court of Appeal, for what it notes here, stated that P. had not provided proof of the reconstitution of the family consortium through the recomposition of the conjugal community of life, or the resumption of reciprocal relationships, objectively relevant, such as to lead to the overcoming of the conditions that had made the continuation of cohabitation intolerable and which resulted in unequivocal behavior incompatible with the state of separation and that from the reconstruction of the relations between the spouses after the consensual separation that took place in June 2009, it appeared that this condition of reconciliation had not been reached at any time; furthermore, taking into account the different personal and income situations of the parties, a divorce allowance equal to Euro 600.00 per month seemed more than reasonable.
3. PC has lodged an appeal in cassation with deed entrusted to two reasons and memory.
4. BM made no defense.
5. The appeal was assigned to the non-participated meeting in chambers on May 10, 2022 pursuant to art. 380 bis cpc.
6. PC has filed memory.
Considering in law that:
1. The first submission denounces the violation of art. 157 cc, and of the articles. 115 and 116 cpc, in relation to art. 360 cpc, paragraph 1, n. 3, since the pronouncement is the result of an incorrect assessment of the acts and documents of the case and, in any case, of the violation of art. 157 of the Italian Civil Code, having attached, since the memorandum of constitution of 8 September 2018, that the cohabitation and the same restoration of the consortium vitae between the spouses was resumed immediately after the separation, on the initiative of the husband and for a continuous period and uninterrupted for about ten months, which ended in July 2010, and that the “new quarrels” and the “take and leave” to which the Court of Appeal had referred referred to a period subsequent to that of ten months in which the cohabitation and the material and spiritual communion of the spouses was resumed (July 2009-September 2010); Furthermore, P. also offered the registration at the Viareggio Employment Center presented by P. on May 30, 2010 as elements of evaluation and proof of the effective restoration of the material and moral communion of marriage. it emerged that she was domiciled in the same house as her husband and the desire to look for a job in the city where she had moved to resume her married life and work for P. at a pizza restaurant in Camaiore from which it was inferred the effective will of P. to resume her life together with her husband; the Court had decided not to value the specific allegations on material and spiritual reconciliation between the spouses during the period September 2009 – July 2010, referring to the fact that in 2014 the P. had returned to Savona, without considering that in the year 2014 the resumption of consortium vitae between the spouses had already taken place during the entire period from September 2009 to July 2010; P. had also deduced evidence for witnesses aimed at demonstrating that the spouses, at least in the period September 2009 – July 2020, had restored material and spiritual communion, but the Court of Appeal had not considered taking the evidence in violation of the ‘art. 115 cpc.
1.1 The reason is inadmissible, given that, although improperly represented under the profile of the violation of the law and of a defect in motivation, it actually translates into a complaint on the point of fact, aimed at a re-examination of the merits of the case, not allowed in the judgment of legitimacy (Cass., Section U., 27 December 2019, n. 34476; Cass., 4 March 2021, n. 5987).
1.2 The Court of Appeal has, in fact, recalled the elements adduced by P. (long period of coexistence in Versilia where the B. had moved to live, from September 2009 to July 2010 and the employment in a local for a few weeks during this period) and the statements made by the same at the presidential hearing (according to which she had lived with the B. in the same period of January – July 2020 in which she had claimed to have moved to (omitted)), together with the transcripts of sms and to the recordings of conversations between the parties up to the date of the initiation of the divorce proceedings, and highlighted that from the reconstruction of P. and from the tenor of the messages produced it was proved, nor had it been contested, that the spouses had continued dating with a take-and-leave that could not integrate any reconciliation; that the medical certificate in (omissis) of 2014 showed his stay in Savona where he had kept his residence and that from the messages passed between the parties it was evident the lack of will to reconstruct the marital relationship on the part of P., who expressly did references to her husband’s infidelity and the desire not to be contacted anymore, while the tenor of the conversation in the proceedings revealed the heated conflict between the parties even in the short periods of meeting.
The second instance judges therefore concluded that P. had not provided proof of the reconstitution of the family consortium through the recomposition of the marital communion of life, or the resumption of reciprocal relationships, objectively relevant, such as to lead to the overcoming of the conditions which had made the continuation of coexistence intolerable.
1.3 In doing so, by correctly applying the principles dictated by this Court according to which the party who has an interest in having the reconciliation of the spouses ascertained, after the separation, has the burden of providing full and incontrovertible proof, that the trial judge is called to verify, bearing in mind that, in the absence of an express declaration of reconciliation, the effects of the separation cease only with the fact of cohabitation, which cannot be considered restored for the sole existence of repeated opportunities for meeting and frequenting, where themselves do not testify for a real and concrete resumption of material and spiritual relationships and that the relative appreciation cannot be subject to a review of legitimacy, in the presence of an adequate and exhaustive reason (Cass., July 26, 2019, n.20323, also referred to by the Court of Appeal; Cass., 23 January 2018, n. 1630).
In the face of this rigorous jurisprudence, therefore, there is the burden on the party who has an interest in having the reconciliation verified to provide full and incontrovertible proof and obviously it is up to the trial judge to assess whether the evidence adduced is suitable for achieving that purpose.
1.4 In the case in question, the Territorial Court examined the relevance of the evidence in the light of the principles of this Court specified above, expressly referred to, and held, with an assessment that, in the presence of adequate and exhaustive reasons, it cannot be subject to union here, that the evidence adduced by P. did not prove in a certain and incontrovertible way the reconciliation took place, specifying, moreover, that the reconciliation did not consist in the mere restoration of the “quo ante” situation, but in the reconstitution of the family consortium through the recomposition of the conjugal communion of life, that is to say the resumption of reciprocal relations, objectively relevant, such as to lead to the overcoming of those conditions which had made the continuation of cohabitation intolerable and which resulted in unequivocal behavior incompatible with the state of separation (Cass., September 17, 2014, n. 19535, also referred to by the Court t erritorial; Cass., 24 December 2013, n. 28655; Cass., 6 October 2005, n. 19497).
2. The second submission denounces the violation of Law no. 898 of 1970, art. 5, paragraph 6, and of art. 115 and 116 cpc, in relation to art. 360 cpc, paragraph 1, n. 3, since the Court of Appeal, despite having recalled the criteria referred to in the judgment of the United Sections of the Court of Cassation no. 18287/2018, did not comply with the same, failing to apply the criterion that required to verify if the applicant had sacrificed his professional expectations to contribute to the care of the family, even if he had considered that the P. had left the job for devote yourself to the family; the second instance judges, moreover, did not take into account the conditions of Mrs. P., even if they had acknowledged that the B. had documented income for Euro 1,500.00, but had not documented the tobacconist’s receipts in the summer, period ” peak ”considering the tourist location in which the business operated and that the application of this criterion led to the recognition of a contribution equal to at least half of the husband’s income.
2.1. The reason is unfounded.
2.2 And indeed, the Court of Appeal, contrary to what the appellant claims, took into consideration the fact that she had left her job in 2006 to devote herself to her family, having expressly stated, on page 6 of the contested judgment, that from the transcripts of the conversations produced it appeared that leaving the job was also motivated by the couple’s attempt to have children through assisted fertilization.
2.3 The second instance judges then highlighted that the marriage had lasted 7 years, the age of the P. and the circumstance that she was suffering from a serious illness, as well as the economic situation of the B., noting a worsening of income due to the economic crisis resulting from the pandemic and considered that, due to the different personal and income situations of the parties, a divorce allowance of Euro 600.00 per month seemed reasonable.
The Court of Appeal therefore conducted a judgment functional to the welfare and equalization-compensatory nature of the divorce allowance, in the light of a comparative assessment of the economic and financial conditions of the parties and in consideration of the contribution provided by the applicant to the conduct of family life. and to the formation of the common assets, as well as the personal assets of each of the former spouses, taking into account the duration of the marriage and the age of the entitled person, with correct application of the principles established by the United Sections of the Court of Cassation, which, reconsideration of the whole matter, they affirmed that the divorce allowance in favor of the ex-spouse must be attributed, in addition to the welfare nature, also an equalizing-compensatory nature, which derives directly from the declination of the constitutional principle of solidarity, and leads to the recognition of a contribution aimed at allowing the requesting spouse not the co pursuit of economic self-sufficiency on the basis of an abstract parameter, but the achievement in concrete terms of an income level adequate to the contribution provided in the realization of family life, in particular taking into account the sacrificed professional expectations (Cass., Sec. U., 11 July 2018, n. 18287).
3. For the above, the appeal must be rejected.
No rulings must be made on the costs, since the notified party did not carry out defenses.
PQM
The Court rejects the appeal.
Pursuant to Presidential Decree no. 115 of 2002, art. 13, paragraph 1 quater, inserted by Law no. 228 of 2012, art. 1, paragraph 17, acknowledges the existence of the conditions for the payment, by the appellant, of the additional amount by way of unified contribution equal to that paid for the main appeal, pursuant to the same art. 13, paragraph 1 bis, where due.
It provides that pursuant to Legislative Decree no. 198 of 2003, art. 52, the general information and other identification data are omitted in the event of dissemination of this provision.