Assignation of the family home: careless agreements

The separation agreement, which transfers the house to the spouse and the emancipated son, is an agreement that gives rise to a right in rem to the house that is not subject to the principle of rebus sic stantibus, since the son is an adult and economically independent, and therefore such an agreement does not fall within the scope of the clauses of consensual separation.

This was confirmed by the Court of Cassation, in the judgment n. 6444 of 2024.

The case
The case concerns a consensual separation agreement in which it was stipulated that the house was to be occupied by the woman and her unmarried, economically independent son.

However, the Court of Trani annulled the agreement on the grounds that there were no children for whom guardianship could be exercised, and therefore considered that the matrimonial home had to be shared; this was upheld by the Court of Appeal of Bari. 

One of the parties filed an appeal against the judgment of the Court of Appeal of Bari in the divorce case, while the other party filed a counter-appeal.  

The decision
The Court of Cassation identified the infringements that had occurred, stating, firstly, that the Court of Appeal had failed to take into account the parties' conduct and real intentions, and had wrongly attributed to the agreement the nature of a separation agreement rather than an atypical contract.

Secondly, it confirms that the consensual separation agreement takes the form of a public deed pursuant to Article 2699 of the Civil Code, and therefore only the clauses of the consensual separation and not the autonomous covenants are modifiable.  

For these reasons, the appeal is upheld and a right in rem of habitation is established.