By Attorney Sara Spanò
The revolutionary sentence of the Civil Court of Catanzaro n.1620/2025.
The matter originated with the notification of an injunction decree, within which the husband requested from his ex-wife the sum of 21,000.00 euros as reimbursement of the previous joint mortgage installments, until then paid exclusively by the aforementioned.
First of all, it must be clarified that the parties in question agreed upon verbal consensual agreements in favor of the husband and unfavorable to the wife, pending the separation proceedings first and the divorce proceedings afterwards. in exchange for the man paying the mortgage installments in full.
In fact, this last agreement – although it was not reported in the divorce document – could be obtained from concluding facts deduced from the exclusive payment that the ex-husband decided to take on and which he pointed out several times in various chats with his children and ex-wife.
This choice, therefore, appeared to be the result of an autonomous negotiation between the spouses, who, free from external influences, decided to regulate their property relations by mutual agreement.
In particular, it is highlighted that traditionally negotiated agreements in family matters were considered completely extraneous to the contractual matter and logic, stating that an interest of the family was pursued that transcended that of the parties and the patrimonial element, even if present, was strictly connected and subordinated to the personal one.
Today, however, broad negotiating autonomy is increasingly admitted, which is asserted with greater conviction, where it does not conflict with the need to protect offspring or in any case the weakest subjects.
In fact, in light of this “atypical” contractual autonomy recognized to the spouses, it was reiterated that the approved agreements do not necessarily exhaust every relationship between them, but, also in consideration of what has been found in practice, it is possible to hypothesize agreements prior to, contemporary with or perhaps subsequent to the separation or divorce, in the form of “atypical contracts of his kind“.
In this case, in fact, the ex-spouses, in the common interest of the family, although they put an end to the marital relationship, continued to comply with the parental relationship, so much so that they agreed – verbally – that the father would shoulder the entire mortgage installments and the mother, for her part, renounced personal maintenance despite the chronic state of unemployment and poverty in which she found herself, as well as accepting the sum of €200.00 in favor of each child within the minimum “unions”.
On this point, in fact, the Supreme Court specified that the payment by the separated spouse of the mortgage on the marital home constitutes a fact – admissible and not questionable on the merits – which certainly affects the determination of the maintenance contribution. The reduction and/or non-recognition of the maintenance allowance due by the separated spouse is justified by the circumstance of the payment by the same of the mortgage on the marital home, purchased under the community property regime, which, despite the absence of children, was used as the wife’s home” (Cass. civ., sentence 25 June 2010, n. 15333).
It goes without saying that although there was no written record of the agreement in relation to the mortgage instalments, the same could be obtained from the payment of approximately 70 installments which were never disputed to the ex-wife, but which were repeatedly pointed out to the children following requests for financial disbursements.
The peaceful collaboration between the spouses was interrupted when the lady requested 50% of the INPS allowance from her ex-husband due to the increase in university and medical expenses she was facing for her children.
Depending on this and in response to the lady’s request, the ex-husband demanded 50% of the mortgage installments paid in full by him up to that point.
At that point, in the opinion of the plaintiff’s defense, the case to ask placed at the foundation of the man-driven question was specious, in relation to two incontrovertible elements:
- If it is true that the ex-husband did not decide to take on the entire mortgage, she would not have missed an opportunity to reiterate to her children – countless times through whatsapp
and to his wife via e-mail, that the mortgage installments were paid promptly and freely for 7 long years;
- And again, if the aforementioned had not decided – by mutual agreement – to disburse the mortgage instalments, he would have had to increase the maintenance of the children (also in relation to the work profession carried out), as well as pay the ex-wife a sum of money in order to ensure that she maintains the same standard of living she had during the marriage.
Situation never occurred.
Therefore, in today’s proceedings the Investigating Judge, following a careful investigation (test by witnesses) and a careful evaluation of the documentary compendium deposited by the parties, founded the logical reasoning which resulted in the issuing of sentence no. 1620/2025 of 19 June 2025.
It was, in fact, specified by the Honorable Judge that in the agreement between the parties, at the time of separation and divorce, there was a necessary content – relating to the custody of children, the parental visitation regime, the ways of contributing to child support, the assignment of the marital home, the measure and method of maintenance, or the determination of a divorce allowance for the economically weaker spouse – and a possible one: the regulation of any other financial or personal issue between the spouses themselves (see Cass., 19 August 2015, n. 16909).
In the case that concerns us, the so-called necessary content was agreed in writing, on the contrary the so-called possible content was established verbally. Hence, the need to prove the existence of an established verbal agreement through declarative evidence as well as documentary evidence ab origine between the parties.
With order dated 06.29.2024, testimonial evidence was admitted precisely in application of the art. 2726 cc According to which, “evidence by witnesses is admitted in any case: 1) when there is a principle of proof in writing: this is constituted by any writing, coming from the person against whom the request is directed or from his representative, which makes the alleged fact appear plausible; 2) when the contracting party was morally or materially unable to obtain written proof”.
In the present case, on the one hand there was a principle of written test and on the other there was the hypothesis of moral and legal impossibility. As for the first aspect, the out-of-court confession made by the father in the messages sent to his children regarding the commitment to pay the mortgage installments was highlighted, thus constituting a principle of proof pursuant to art. 2724 cc
The content of the messages, in fact, better clarified the fact that since the signing of the loan contract, it was always the father who took on the entire mortgage instalments, thus revealing the internal meaning of the assumption. Furthermore, the defendant often referred to the expenses he incurred, including those of the mortgage, without however ever revealing the existence, pro quota, of the opponent’s obligation.
Furthermore, the emotional climate described by both parties immediately appeared precarious without any margin for conciliation, not even the presence of the children contributed to calming things down.
And again, from the attached documentation it emerged that even before the separation, economic arguments were always a cause of friction between the couple, which is why in the opinion of the Judge – in the person of Dr. Song Damiani – “it was highly probable, if not possible that the mere fact of crystallizing the verbal agreement between the spouses first in the separation agreement, and then divorce, would have generated a climate of greater suspicion and mistrust, exacerbating the family crisis already underway”.
In conclusion, the matter in question dealt with a real so-called internal assumption which occurred with respect to a main obligatory relationship in which, on the one hand there is a creditor (the bank) and on the other several debtors (the spouses) who, with a specific agreement having its own cause, agreed to divide differently the parts due to each of them, derogating from the presumption referred to in the art. 1298, co 2 cc
The existence of said agreement, therefore, required the acceptance of the opposition presented by the lady’s defense and, as a result, the complete revocation of the opposing injunction decree, with consequent condemnation of the losing party’s costs in favor of the prosecutor who declared himself anti-state.
Sources:
- Extracts from the defense documents and briefs of the Perrone Law Firm, presented in defense of the lady. (actress part)
- Sentence of merit Civil Court of Catanzaro second section n. 1620/2025 issued on 19.06.2025 and published on 17.07.2025.
- (Cass. civ., sentence 25 June 2010, n. 15333).
- Cass., 19 August 2015, n. 16909).
