Diritto di famiglianewsAssegno divorzile prima e dopo la sentenza n. 18287/2018

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L’assegno di divorzio di cui all’art. 5 della L. 898/1970 ha la funzione di consentire il ripristino delle condizioni economiche tra i coniugi al fine di raggiungere un equilibrio tra i medesimi. Il presupposto della sua attribuzione è la mancanza di adeguati mezzi economici da parte del coniuge richiedente o la difficoltà di procurarseli per ragioni oggettive.

In un primo momento il giudice deve verificare l’esistenza del diritto in astratto, deve cioè procedere alla verifica dell’inadeguatezza dei mezzi o dell’impossibilità di procurarseli per ragioni oggettive, ponendoli in confronto con il tenore di vita goduto in costanza di matrimonio, per poi determinare il quantum delle somme necessarie a superare detta inadeguatezza.

In un secondo momento, poi, il giudice, deve procedere alla determinazione in concreto dell’assegno in base alla valutazione equilibrata dei criteri di cui al citato articolo 5 che possono contenere e diminuire la somma considerata in astratto.

La ratio dell’assegno di divorzio è pertanto il dovere di solidarietà economica post coniugale.
Con la sentenza n. 11504 del 10/05/2017 la Suprema Corte (Prima Sezione) ha affermato il principio secondo il quale, in tema di assegno di divorzio, è necessario passare dal criterio del tenore di vita goduto in costanza di matrimonio a quello fondato sull’indipendenza economica del coniuge. Il principio applicato è quindi quello di “autoresponsabilità” economica di ciascuno dei coniugi e si riferisce soltanto all’indipendenza o autosufficienza economica.

Come desumere l’autosufficienza? Da indici quali il possesso di redditi di qualsiasi specie, il possesso di cespiti patrimoniali mobiliari ed immobiliari, la capacità e possibilità effettiva di lavoro nonché la disponibilità di una casa di abitazione.
Indubbiamente tale orientamento è stato assai innovativo e proprio per questo ha aperto la strada ad una serie di ricorsi volti ad eliminare o quantomeno ridurre l’assegno, portando conseguentemente ad un contrasto giurisprudenziale tra i giudici di merito.

Per questa ragione la questione è stata sottoposta alla decisione delle Sezioni Unite le quali si sono pronunciate con la sentenza n. 18287/2018 che ha risolto definitivamente il contrasto che si era creato sul tema.

Secondo tale pronuncia, la sussistenza del diritto all’assegno di divorzio va valutata in base ad un criterio composito che tenga anche conto del tenore di vita goduto durante il matrimonio.
Il principio che è stato affermato è quello secondo il quale l’assegno di divorzio ha natura assistenziale, compensativa e perequativa e quindi si deve adottare un criterio composito che, alla luce della valutazione comparativa delle rispettive condizioni economico-patrimoniali, dia particolare rilievo al contributo fornito alla conduzione della vita familiare ed ai sacrifici del coniuge debole in considerazione degli anni di durata del matrimonio.

L’entità dell’assegno va quantificata sulla base dei seguenti parametri: durata del matrimonio, potenzialità reddituali future ed età dell’avente diritto.
Pertanto, dopo tale sentenza, il diritto all’assegno di divorzio non dipende più soltanto dalla mancanza di autosufficienza economica in chi lo richiede o dall’esigenza di consentire al coniuge privo di mezzi adeguati il ripristino del tenore di vita goduto in costanza di matrimonio. Tale diritto sorge anche quando occorre riequilibrare le situazioni economico-patrimoniali delle parti. L’assegno ha dunque una funzione compensativa e serve a proteggere il coniuge più debole economicamente che ha comunque contribuito alla conduzione della vita familiare, senza tuttavia fargli perdere la sua naturale funzione assistenziale.

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