The new more uxorio cohabitation: effects on spousal maintenance and on divorce allowance

Abstract

Stable cohabitation more uxorio, or even the mere establishment of a shared life project by the economically weaker spouse with a new partner, extinguishes the other spouse’s duty to provide material support. As a consequence, the right to spousal maintenance lapses, and the welfare-based component of the divorce allowance is likewise forfeited, with the allowance remaining payable solely in its compensatory and equalizing function.

The new de facto cohabitation and the spousal maintenance allowance

The separation allowance imposed by the court on the economically stronger spouse in favour of the other has a purely welfare-based function, as it is grounded in the duty of material assistance between spouses, a duty that continues to operate even during the state of separation. Accordingly, in determining such allowance, the court assesses the standard of living enjoyed during the marital cohabitation, which the allowance is intended to preserve.

It follows that, where the spouse entitled to maintenance enters into a new stable and continuous relationship with a person who ensures a standard of living at least equivalent to that enjoyed during the marriage, the duty of assistance borne by the separated spouse ceases.

According to the Supreme Court (Order No. 14358 of 29 May 2025), this result may arise even in the absence of actual cohabitation with the new partner, provided that the relationship amounts to a shared life project, characterised by the pooling of economic resources.

In the case at hand, the Court deemed relevant for the reassessment of the maintenance allowance the fact that the wife had entered into a stable relationship — despite the absence of cohabitation — with a well-off physician who ensured for her a standard of living higher than that enjoyed during the marriage.

The new de facto cohabitation and the divorce allowance

The divorce allowance fulfils a function distinct from that of the separation allowance. Indeed, the divorce allowance presupposes the dissolution of the marital bond and the commencement of autonomous lives by the former spouses, each of whom is therefore required to secure the means necessary to live independently and with dignity. What remains — and justifies the award of the divorce allowance — is solely a bond of post-marital solidarity.

Case law identifies, in addition to its welfare-based component, a compensatory-equalising element within the divorce allowance, payable where the economic imbalance between the parties stems from one spouse’s sacrifice of professional and earning prospects for the benefit of the family.

In this regard, the Court of Cassation, in Order No. 11610 of 3 May 2025, clarified that the establishment by the former spouse of a stable de facto cohabitation, as judicially ascertained, affects only the welfare component of the divorce allowance, without automatically extinguishing its compensatory component (see also Supreme Court, Joint Divisions, No. 32198 of 5 November 2021).

In other words, what ceases is the duty of material assistance incumbent upon the former spouse, since such welfare function is undertaken by the new partner; however, the right to compensation for the sacrifices made for the family’s benefit remains unaffected.

Observations

The orders under examination highlight how the new more uxorio cohabitation affects the separation allowance and the divorce allowance differently, given the distinct nature of these payments.

The maintenance allowance owed upon separation to the economically weaker spouse is welfare-based in nature and is commensurate with the standard of living enjoyed during the marriage. It follows that, should the entitled spouse enter into a new relationship — with or without cohabitation — that ensures sufficient financial resources to maintain the same standard of living previously enjoyed during the marriage, he or she forfeits the right to maintenance.

The Court further observes that it is for the spouse obliged to pay maintenance to prove the existence of the new situation, specifying that, in the absence of cohabitation, proof of the shared life project will be assessed by the court with greater strictness.

By contrast, the divorce allowance, in addition to its welfare function, also fulfils a compensatory function, which endures notwithstanding the establishment of a stable relationship with a new partner. Case law likewise places upon the spouse obliged to pay the divorce allowance the burden of proving the new factual situation.