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Italy: The Divorce Allowance in Italian Law: The Role of Jurisprudence in the Formation of the Legal Rule in the Family Sphere

Published online by Cambridge University Press:  09 November 2019

Federica Giardini
Affiliation:
Professor of Private Comparative Law and of Private Law of the European Union, School of Law, University of Padua, Italy
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Summary

INTRODUCTION

The debate on allowing maintenance following divorce in Italian law involves the general theory of the sources of legal rules and at the same time can highlight precisely some trends in the evolution of society and of Italian law in family matters. The great social impact that the crisis in the institution of marriage presents in Italy and the recent changes in Italian society are indirectly involved in the following legal investigation. On the one hand, in fact, society seems to be evolving towards an increasingly central role for women in the world of work. On the other hand, especially in some areas of the country, the role of women remains strongly anchored to the family understood as the essential nucleus of society itself, not only as a supportive structure in which children are raised, but also one in which much of the welfare that the state is not able to provide to citizens is carried out. It is easy to understand, therefore, how the fact of being able to enjoy a contribution to maintenance even after divorce can, in many cases, really make the difference between those who can continue to live a dignified life and those who instead, due to the crisis of their own family, can actually encounter the problem of having to maintain themselves independently.

THE INTRODUCTION OF DIVORCE IN THE ITALIAN LEGAL SYSTEM: SHORT SIGNS

In perfect congruence with the Italian legal tradition in family matters, civil marriage was indissoluble in Italy until the last decades of the last century. The only cause of dissolution of a marriage known from the Civil Code was the death of one of the spouses. It was possible, it is true, to obtain a separation between spouses from 1942, but it was considered a sort of pathology of the marriage relationship, which instead maintained a precise indissolubility for the law. Using this logic, the French legal tradition that had influenced so much of the approach of the Italian Civil Code of 1865 first also, albeit in a more muted way, influenced the approach of the subsequent Italian Civil Code of 1942 (the current one).

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Publisher: Intersentia
Print publication year: 2019

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