The rights and duties of civil or religious marriage. A focus on fidelity

The art. 151 of the Civil Code states that: “ Separation can be requested when, even independently of the will of one or both spouses, facts such as to make the continuation of cohabitation intolerable or to seriously prejudice the education of the offspring occur.
The Judge, pronouncing the separation, declares, where the circumstances exist and where required, which of the spouses is responsible for the separation, in consideration of his behavior contrary to the duties deriving from marriage “ .

In the regulations in force, the statement of charge can be pronounced by the judge ” if requested ” and if ” the circumstances of the charge are met “.
The prerequisite for the declaration of debit is conscious and voluntary behavior contrary to the duties deriving from marriage (pursuant to article 143 of the civil code, reciprocal obligation of fidelity, moral and material assistance, collaboration in the interest of the family and cohabitation).
According to the consistent jurisprudence of the Supreme Court, the declaration of charge of the separation requires proof that the irreversibility of the marital crisis can be connected to the behavior contrary to the duties arising from the marriage of one or both spouses, since there is a causal link between it and the determination of the intolerability of cohabitation (among others Civil Cassation June 27, 2006 n. 14840; Civil Cassation June 11, 2005 n. 12383).

According to the Judges, the judgment of the charge cannot be based solely on the violation of the duties arising from the marriage, but it is instead necessary to ascertain whether this violation did not occur when it had already occurred and as a result of a situation of intolerability of cohabitation (among other Courts Civil 28 April 2006 n. 9877).

The Judges of the Supreme Court recently pronounced themselves on the issue of the violation of the obligation of fidelity and affirmed that ” it represents a particularly serious violation, which must generally be considered a sufficient circumstance to determine the charge of the separation against the responsible spouse ” but “ it being understood that there must be a causal link between infidelity and the marital crisis, which fails where there is a pre-existing crisis already irremediably in progress ” (Civil Cassation 23 May 2008, n.13431).

Still on the matter, the Judges ruled that ” the obligation of fidelity is to be understood not only as abstention from extramarital affairs, but as a commitment, falling on each spouse, not to betray mutual trust or not to betray the relationship of physical and spiritual relationship between spouses, which lasts as long as the marriage lasts.

The notion of fidelity should be compared to that of loyalty which requires sacrificing the interests and individual choices of each spouse that prove to be in conflict with the commitments and prospects of common life. In this framework, emotional infidelity becomes a component of a broader fidelity which translates into the ability to sacrifice one’s personal choices to those imposed by the bond of the couple and by the partnership that is based on it ” . They reiterate the thought of the jurisprudence of the Court and affirm “the Judge cannot base the ruling on the mere non-compliance with the duties pursuant to art. 143 of the Civil Code having, on the other hand, to verify the effective incidence of the related violations in determining the situation of intolerability of coexistence.”

The infidelity of a spouse does not escape this rule which, although representing a particularly serious violation, especially if implemented through a stable extramarital relationship, can be relevant for the purposes of the chargeability of the separation only when it was the cause or contributing cause of the fracture of the marital relationship and not also, therefore, if it turns out not to have explained the concrete negative impact on the family unit and on the continuation of the cohabitation itself: as happens when the judge ascertains the pre-existence of a rupture that is already irremediably in place because it is autonomous and independent of the subsequent violation of the duty of loyalty ” (Civil Cassation 11 June 2008 n.15557).

Therefore, from the rulings of the Supreme Court it is clear that in order for the violation of one of the obligations arising from marriage to lead the judge to charge the separation to the offending spouse, it is necessary that the crisis of the union is attributable to the violation .
In the event that it is not possible to demonstrate that the violation of the obligations arising from the marriage was the (sole or prevailing) cause of the separation, as a different cause of intolerability of cohabitation pre-existed, the judge will have to pronounce the separation without charge .