The burden of proof in matters of divorce allowance is a topic often misunderstood, especially in cases where no financial contribution was ever recognised during the separation. Clarifying it is decisive in correctly framing the defence strategy of the weaker spouse.
I personally handled an emblematic case, assisting F., a spouse who had been separated for over twenty years and who, throughout that entire period, had never received any maintenance allowance. When her former husband, G., a businessman with a substantial estate, initiated divorce proceedings, my client found herself in a completely different situation: a modest pension of around 1,000 euros per month and no ability to take on any form of work.
Maintenance allowance and divorce allowance have a different nature
The first issue to clarify was precisely this: the fact of not having received any allowance during the separation does not preclude the right to claim the divorce allowance. The Italian Supreme Court (Cassation) has indeed repeatedly affirmed that the maintenance allowance and the divorce allowance have different nature and purpose. The former is tied to the continuing existence of the marital bond, while the latter arises precisely from the dissolution of the marriage and must be assessed independently.
The defence strategy: the burden of proof
We therefore built the defence focusing on the burden of proof, a central element in such cases. It was necessary to demonstrate:
- the standard of living enjoyed during the marriage;
- the marked economic disparity between the spouses;
- my client's objective inability to independently sustain a dignified standard of living.
Through a precise reconstruction of past and present economic conditions, we were able to highlight how significant the gap between the parties was and how F.'s position was deserving of protection.
The role of the duration of the marriage
A particularly relevant element was also the duration of the marriage, which in our case had been long and had deeply influenced my client's life choices, limiting her opportunities to build economic autonomy.
The judge accepted our line of reasoning, recognising the right to the divorce allowance and determining its amount on the basis of an overall assessment of the parties' conditions.
Conclusions
This case demonstrates a fundamental principle: the divorce allowance is neither automatic, nor is it excluded merely because nothing was recognised in the past. What matters is the ability to demonstrate, through a solid defence strategy, the real economic situation and the marital standard of living. Where a marked disparity exists, the legal system offers concrete tools to rebalance the conditions and protect the weaker spouse, even many years after the separation.