The case originates from a private agreement by which the spouses had regulated their mutual financial relations during their marriage. The wife assigned certain assets to her husband, who undertook, in the event of separation, to pay her a sum in recognition of her financial contribution to the family and to the renovation of the property owned exclusively by the husband.
After the separation, the husband applied for the agreement to be declared null and void on the grounds that it was contrary to public policy and mandatory legal provisions (Articles 143 and 160 of the Italian Civil Code), arguing that it constituted an inadmissible property agreement.
The Court of Mantua and subsequently the Court of Appeal of Brescia rejected the claim, considering the obligation, set out in the private agreement, to be valid as an expression of the economic balance desired by both parties. The matter was therefore brought before the Supreme Court.
Referring to established legal guidance (including Court of Cassation No. 23713/2012; No. 5065/2021; No. 11012/2021; No. 13366/2024; No. 18843/2024), the Court of Cassation reaffirmed that agreements governing existing property relationship between spouses whose effectiveness is subject to the condition precedent of possible separation or divorce are valid.
In the court's view, these are not prenuptial agreements in the technical sense, but rather atypical contracts based on a legitimate interest worthy of protection pursuant to Article 1322(2) of the Italian Civil Code.
The judicial review, which the judge is called upon to carry out, does not concern the content of the agreement, but rather its legitimacy: it is valid if it does not affect inalienable rights and does not violate mandatory provisions. The Court makes an important distinction by stating that the future marital crisis is not the reason for the contract, but only the event that set as a condition precedent for its effectiveness. The agreement, therefore, does not encurage separation, but regulates obligations that have already been determined with the aim of preventing conflicts.
The Court also reaffirms the limits of this autonomy: agreements that aim to predetermine the conditions of a future divorce, such as the existence or exclusion of maintenance payments, remain ineffective due to the illegality of the reason. Such agreements affect inalienable rights and restrict the spouses’ freedom of defense in court. Similarly, when the agreement involves minor children, its effectiveness is in any case subject to judicial review to protect the best interest of the child.
The ordinance provides legal certainty for legal practitioners, recognizing the validity of property settlement agreements entered into during marriage, provided that they relate to existing property relationships, are balanced, fair, and based on mutual concessions, do not violate mandatory rules or inalienable rights, and respect the protection of the economically weaker party and minor children.
Although the judge cannot modify validly concluded agreements, he still required to assess their relevance in the overall context of the parties' economic circumstances. This results is a more modern and pragmatic model for regulating property relations, aimed precisely at preventing conflicts between spouses and enhancing mutual responsibility.