Dependant’s pension

The former spouse who received the divorce allowance in a lump sum has no entitlement to the dependant’s pension

For the purposes of granting the dependant’s pension in favour of the spouse in relation to whom the dissolution or termination of the civil effects of the marriage has been declared, the ownership of the allowance indicated in Art. 5 of Italian Law no. 898 of 1970 must be seen as “actual ownership concretely usable of the periodic divorce allowance at the time of death of the former spouse and not as abstract ownership of the right to the divorce allowance already definitively satisfied with the payment of a lump sum”.

In this latter case, in fact, the functional requirement of the dependency allowance is lacking, which is given by the same solidarity assumption of the periodic divorce allowance, aimed at continuing the economic support in favour of the former spouse, while if the allowance has been paid “as a lump sum” there is no interruption of economic contribution.

This is what was confirmed by the Combined Sections on a very controversial matter. For the legitimacy judges, therefore, the former spouse who has received the divorce allowance in a lump sum is not entitled to the dependant’s pension: this emolument performs a solidarity function in relation to the surviving spouse and the former spouse and the right to obtain it has one of its necessary genetic elements in the actual ownership of the divorce allowance.

In other words, the payment of a lump sum involves the right to the allowance having been definitively satisfied and upon the death of the former spouse there is no “interruption of periodic and actual economic contribution” (Civil Cassation, Combined Sections, 24 September 2018, no. 22434).