Prenuptial Agreements? Is Supreme Court order No. 20415/2025 truly revolutionary? Much ado about nothing!

by Laura Catania, Chiara Scribani

Preliminary remarks

In Italy, the regulation of matrimonial property relations between married couples is governed by the Civil Code, which allows couples to choose between two different matrimonial regimes: community property or separate property. In addition to these options, it is also possible to enter into marriage agreements (Article 162 of the Civil Code).

However, this latter right faces a clear limitation: article 160 of the Civil Code states that the rights and duties arising from marriage are unwaivable. This means that spouses cannot pre-emptively modify fundamental obligations such as equality, cohabitation, contribution to family needs, or child maintenance through agreements. Based on this principle - and unlike other legal systems - prenuptial agreements are prohibited under Italian law.

The case

Supreme Court order no. 20415 of July 21/2025, examined the validity of a private agreement entered into in 2011 by two spouses, M and B, in which they intended to settle their financial relations in advance in the event of a future separation. 

In the specific case, the agreement stipulated that, in the event of separation, M would pay B the sum of €146,400 in exchange for her waiver of a number of movable assets and sums of money. Following the separation, M brought the matter before  the court to have the agreement declared void, arguing that it was contrary to public policy and certain mandatory rules (Articles 143 and 160 of the Italian Civil Code).

Both the Court of Mantova and the Court of Appeal of Brescia confirmed the validity of the agreement as a legitimate expression of the parties’ contractual autonomy. According to these courts of first instance, the agreement was an atypical contract with a lawful condition precedent, determined by the occurrence of a future and uncertain event (separation), intended to rebalance the spouses’ financial situation without interfering with their ongoing marital obligations.

M then filed an appeal with the Supreme Court, arguing that the lower courts had misinterpreted the content of the agreement.

However, the Supreme Court rejected the appeal, confirming the validity of the agreement and reiterating that:

  • financial agreements between spouses are not inherently prohibited, as long as they do not affect non-disposable rights;
  • marital crisis may constitute a valid suspensive condition for a contract;
  • contractual autonomy, as per Article 1322 of the Civil Code, allows for non-typical contracts provided they pursue legitimate and worthy interests.

Legal solutions

It should be clarified that the decision under review did not establish the recognition of prenuptial agreements, which in our legal system continue to be considered null and void, as they violate Article 160 of the Civil Code.

Prenuptial agreements are understood as agreements between future spouses, entered into before marriage, aimed at regulating in advance matters such as the division of assets, maintenance obligations, inheritance issues, or other financial and personal matters in anticipation of a potential marital crisis, separation, or divorce.

Different is the case of contractual agreements between already married spouses, dealing with financial allocations related to existing relationships between them or with third parties - even if anticipating a possible separation or divorce.

According to a traditional, now outdated, approach, such agreements were deemed null and void due to the unlawfulness of their cause, as they were regarded as instruments capable of favoring or encouraging the dissolution of the marital bond. It was argued, in fact, that they amounted to an improper attempt to subject rights and a legal status – that of marriage – to contractual regulation, despite these being regarded by the legal system as inalienable and therefore beyond the scope of private autonomy.

In order to overcome these objections, case law began to classify such agreements as atypical contracts subject to a lawful suspensive condition, an expression of contractual freedom recognized under Article 1322, paragraph 2, of the Civil Code. In the present case, the parties’ intention to regulate their property relations in a fair and balanced manner, in order to avoid future disputes, undoubtedly constitutes an interest worthy of legal protection.

From this perspective, spouses do not sign the agreement because they intend to separate, but rather for another legitimate reason: to rebalance their financial positions in the event of a marital crisis. The goal of facilitating the resolution of such a crisis is also reflected in the tax exemptions under Article 19 of Law No. 74/1987. Thus, separation or divorce is not the cause of the contract, but rather the suspensive condition that triggers its effects: the agreement is validly concluded regardless of the future event, which merely activates its consequences.

Comparative observations: prenuptial agreements in the State of California (USA)

Prenuptial agreements are a well-established legal instrument in many foreign legal systems.

Briefly, in the United States, all fifty states recognize the validity of prenuptial agreements, although with different rules and procedures. A uniform law, the Uniform Premarital Agreement Act (UPAA), has been adopted by around 26 states, each possibly introducing its own variations.

In particular, the State of California follows the UPAA, which sets out several formal and substantive requirements for a valid agreement:

  1. Voluntariness: Both parties must consent freely, knowingly, and without coercion;
  2. Financial disclosure: Each future spouse must provide full and honest disclosure of:
    • Assets (real estate, bank accounts, investments);
    • Debts (mortgages, credit cards, loans);
    • Income (salaries, bonuses, rents);
    • Any inheritance or business holdings.
  3.  Legal assistance: Each party must be represented by an independent attorney, unless expressly and clearly waived.

Additional requirements include:

  • a written form and signature by both parties;
  • fairness at the time of execution.

Regarding content, such agreements may regulate various matters, including property management (separate or joint), spousal support, debt division, inheritance rights, and protection of children from prior relationships - all from a legal framework very different from that of Italian family and inheritance law.

Conclusions

In light of the foregoing, the Supreme Court ruling No. 20415/2025, as well as the recent Judgment No. 1620 of July 17, 2025, by the Court of Catanzaro, do not validate prenuptial agreements. In fact, the individuals involved were already married and in the process of separation or divorce when the agreements were made.

What these rulings have clarified is that spouses can autonomously and consciously regulate their financial relations, even in anticipation of a potential marital crisis, provided that such agreements do not affect non-disposable rights.

Although both decisions refer to agreements that can be made before or during marriage, it is crucial to emphasize that the subject matter of these agreements typically concerns existing debts or the reimbursement of a loan (as in the recent rulings), and do not constitute prenuptial agreements, which remain incompatible with the Italian legal system.