The expulsion from the family home which, if implemented unilaterally by a spouse, and that is without the consent of the other spouse, and confirmed refusal to return, in itself constitute a breach of an obligation and consequently cause double debit of separation, since it leads to the impossibility of cohabitation, where it proves not to exploit this breach entitled to a "just cause", such because it is intended the presence of factual situations, but also of events or behaviors of others, in itself incompatible with the continued cohabitation of that, or that do not make the claim payable to live together.
This cause is apparent even in cases of frequent domestic quarrels with his wife's mother-in-law partner and the resulting progressive deterioration of relations between the spouses themselves. If the fracture is prior to expulsion from the matrimonial home, which therefore could not have been the case, the separation of the spouse addebitabilità moving away must be excluded without the need to further verify whether the conduct constitutes a violation of the other spouse of his marital
(Litis.it, March 1, 2011)
Civil Cassation, Section One, Order No. 02/24/2011
of 4540 (President, Firefly - Rapporteur, Cultrera)
In fact and in law
The Court of Appeal of Aquila, a ruling filed September 26, 2006 and notified on 29 November 2006 in partial reform of the previous decision of the Court of Pescara, saying the separation between [snip] and [omitted], the latter had denied the charge, blaming the wife, father onerous obligation to pay the benefit children the sum of 500.00 euros, more than half of the extraordinary expenses and confirmed the exclusion dell'addebito against him. Found in this connection that the test carried out showed that the [omitted], who had left the matrimonial home, had breached its duty without just cause.
[snip] by notice of appeal 27/01/2007, appealed the ruling to the Supreme Court alleging seven grounds.
The notice has resisted defense. The applicant complained: 1 .-
violation and misapplication of Article. 151 paragraph 3 cc basing its complaint on exegesis accredited by established case law cited above, it regrets the decision of a complaint against him for having given her abandonment of the marital home to the irretrievable fracture created by the husband and mother-in-law violations by the partner. The Territorial Court did not address the probative value - decisive - the now long marriage irretrievably compromised, as determined by daily bickering and blatant, devalued given the absence of violence or betrayal consumed by [snip].
In conclusion it accused the separation not having attributed to her husband.
The final question asks whether the right to legitimate just cause for expulsion from the matrimonial home before the separation is meant necessarily the unlawful conduct of the other spouse is also evidenced in violazione dei doveri coniugali, ovvero basti l’obiettiva intollerabilità della prosecuzione della convivenza.
Il Consigliere rei. ha depositato proposta di definizione rilevando:
“L’enunciato di questa Corte espresso nella sentenza n. 1202/2006, citata dalla ricorrente, afferma che l’allontanamento dalla residenza familiare che, ove attuato unilateralmente dal coniuge, e cioè senza il consenso dell’altro coniuge, e confermato dal rifiuto di tornarvi, di per sé costituisce violazione di un obbligo matrimoniale e conseguentemente causa di addebitamento della separazione poiché porta all’impossibilità della coabitazione, non concreta tale violazione allorché risulti legittimato by a "just cause", because it is intended that the presence of factual situations, but also of events or behaviors of others, in itself incompatible with the continued cohabitation of that, that that will not make the claim payable to live together (see Cass ., Sec. 1, 28 August 1996, No. 7920, Cass., Sec. 1, 29 October 1997, No. 10648, Sec. 1, 11 August 2000, 10,682).
This cause is apparent even in cases of frequent domestic quarrels with his wife's mother-in-law partner and the resulting progressive deterioration of relations between the spouses themselves. If (in other words, the fracture is expulsion from the previous marital home, which therefore could not have been the case, addebitabilità the separation of the spouse who moves away must be excluded without the need to further verify whether the behavior of the other spouse constitutes a violation of her marital duties. The decision of the Court of Appeals held that the award of separation [snip] for justification, she abandoned her home, her husband had not committed acts of violence or treachery or at least not so severe as to prevent said to wait the timing of judicial separation, the principle disapplies reported. It consumes far more contrast to take the tolerability of the litigation on the sole ground that the marriage had lasted 15 years and was marked by references alleged incidents. The plea must therefore be upheld. Remain absorbed any additional complaints. " The [snip] lodged a statement with which it reaffirmed the invalidity of the claims set out in the grounds of appeal, refuting the existence of good cause which would determine the applicant's expulsion from the family house, together with minor children without permission. The same, as demonstrated by oral examination, he had pre-ordered the unjustified abandonment, nor relied on the specific circumstances involved conclamanti the impossibility of cohabitation with her husband, who tried in every way to dissuade her from preordained, unjust, illegal and meaningless initiative, heralding of negative consequences for the offspring. Unreasonable and unfair is the complaint about the interference with the family menage "one's own mother. Lastly, the unproven accusation against him of mismanagement of economic resources, having, however, he wisely used his income from his work. The PG agreed to the conclusions of the related proposal.
The College believes that share the considerations set out therein.
For the purposes of a preliminary charge is not required to make the breach of duties under Article dependent spouse. 143 cc (but you must check "whether the violation has assumed causal efficacy in determining the marital crisis, or whether it occurred when he had already gained a position of intolerance of peaceful coexistence, so that in case of failure to meet evidence that the conduct contrary to the obligations arising from marriage held by either spouse, or both, was the cause of the failure of coexistence must be delivered free of charge separation (Cass. n. 12373/2005 reminiscent Cass. No. 12130/2001 and No. 13747/2003, 17056/2007, 1202/2006, 12373/2005). Does not annul the causal link between the voluntary departure and the persistence of a past condition of fatal conflict of the couple that would cause the abandonment of the absence of incidents of mistreatment or harassment by her husband abandoned. The contested decision was given decisive importance to that fact by failing to check against the causal efficacy of the violation consumed by [snip] in determining the marital crisis, which has qualified so wrongfully and unlawfully, as against the obligation of marital cohabitation Case of the charge. The allergic reaction of the co-existence in the abstract that causes such breach does not necessarily manifest itself in acts of violence, but rather the context of a mutual intolerance. It appears, therefore, denounced the apparent lack of reasoning, which requires a cassation appeal of the decision with reference to the Court of merit, according to the principle invoked, dovrà accertare se, sulla base degli elementi di prova addotti dalla [OMISSIS] , l’abbandono della casa familiare ad opera della stessa sia intervenuto quando “era già maturata, all’interno della coppia, una situazione di intollerabilità grave ed irreversibile della convivenza”, ovvero se esso abbia dato causa alla rottura del rapporto coniugale, prescindendo dall’assenza di episodi di maltrattamenti da parte del marito a danno della stessa, non incidente in senso risolutivo sul nesso causale che deve sussistere tra la violazione dei doveri nascenti dal matrimonio e la fine dello stesso. Sarà cura del giudice di rinvio provvederà anche al regime delle spese del presente giudizio di legittimità.
PQM
The Court upholds the claim in accordance with the reasons given, the decision under appeal and cash returns, even for the determination of the costs of these proceedings, the Court of Appeal of Aquila in a different formation.
Deposited in Court February 24, 2011
http://www.litis.it/2011/03/01/la-suocera-troppo-invadente-legittima-labbandono-della-casa-coniugale-senza-addebito-della -separation-Supreme-civil-order-n-45402011 /
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