The decision addresses the persistence of moral and social duties between ex-partners even after the end of de facto cohabitation.

The case involved a cassation appeal filed by a son, as heir of the deceased mother, against his half-brother (sharing the same father but different mothers). One of the claims specifically sought reimbursement of expenses incurred by the mother from 2006 onward for the father’s food needs and care, after the end of her de facto cohabitation with him.

The Milan District Court partially upheld the claims, ordering the defendant to pay 50% of the fees for the father’ elderly care home and rejecting the others.

On appeal, the court rejected claims for reimbursement of the mother’s expenses from before 2006 up to 2016, deeming her contribution to the ex-partner as fulfilment of a natural obligation under Art. 2034 of the Civil Code, thus not subject to reimbursement.

Against this ruling, the appellant filed a cassation appeal.

The Supreme Court thus had to rule on the existence of a natural obligation concerning maintenance and care services provided between ex de facto partners.

To this end, the Cassation recognizes that, per its consolidated case law, a natural obligation requires two elements: the existence of a moral or social duty aligned with current societal standards, and proof that such duty was fulfilled spontaneously through a performance proportionate and adequate to all case circumstances.

The Court further recalls that de facto cohabitations, as social formations under Art. 2 of the Italian Constitution, entail moral and social duties of each partner toward the other, which may include financial support during cohabitation, qualifying as fulfilment of a natural obligation.

However, the issue addressed by the Cassation for the first time in this order concerns whether such duties persist after the end of de facto cohabitation.

The Court notes no prior Cassation rulings on this point but deems the lower court’s solution correct, affirming that solidarity duties toward an ex de facto partner fall within social and moral duties, deserving protection even post-termination, based on case specifics.

The Cassation emphasizes that de facto cohabitations are a widespread social phenomenon, though relatively recent. Statistical data show a multiplication of free unions, now outnumbering marriage-based families, as noted by the Constitutional Court (e.g., Cost. Court 25 July 2024, no. 148).

The emergence of a pluralistic family concept, first in society and then in case law – boosted by the European Court of Human Rights (ECHR 21 July, 2015, Oliari et al. vs. Italy) – led to legislative recognition in Law No. 76 of 2016, providing distinct models: civil unions for same-sex couples and de facto cohabitation for all couples.

De facto cohabitation, protected at constitutional level by Art. 2 of the Constitution, requires safeguards alongside those for marriage-based families under Art. 29, paragraph 1, of the Constitution.

In this framework, the Cassation concludes that the moral and social duty of material assistance toward an ex de facto partner, even post-termination, aligns coherently with “current societal evaluation”, given the pluralistic family concept, and thus qualifies as a natural obligation under Art. 2034 of the Italian Civil Code, provided spontaneity, adequacy, and proportionality are met based on case specifics.

In the instant case, the lower court found a long-shared life path between the partners, with peaceful cohabitation until 2006 and the birth of a child. Despite separation, an affective bond persisted, evidenced by factual circumstances. Thus, the expenses for the ex-partner reflected awareness of fulfilling a moral duty toward someone with whom years of common life had been shared, as the mother never sought reimbursement.

The Cassation holds that the affective relationship described in the challenged judgment fully matches the pluralistic value context discussed, as it expresses a solidarity bond from the prior de facto union – a “social formation” under Art. 2 of the Italian Constitution – consistent with “current societal evaluation” among the expanding pluralistic family concept.

 

(Comment by Martina D'Onofrio)