CHILD SUPPORT UNDER ITALIAN LAW MOST RECENT ITALIAN JURISPRUDENCE
According to Italian Law, parents are obliged to support their children solely for the existence of the filiation relationship. This obligation, in fact, exists both in the case of children born of Italian marriage and from cohabitation and persists even in the event of Italian separation, divorce and termination of cohabitation.
The purpose of maintenance, under Italian law, is to ensure protection for the child and, for this reason, the child’s maintenance contribution is: unavailable, unattachable, not subject to compensation, and also non-refundable: this means that what has been paid cannot be claimed back.
But if this contribution is non -refundable under Italian law, how do you behave in the event that a father discovers, at a certain stage, that he does not have a paternity relationship with the child to whom, since birth, he has paid a maintenance allowance?
Disclaimer of paternity in Italy: the case
In Italy, a man “alleged father” of a minor has paid a considerable amount in favour of the latter as a maintenance allowance, since the day of his birth.
However, according to Italian Family Law, the contribution to the maintenance of children has as an essential prerequisite: the existence of a filiation relationship; therefore, when that relationship is found as lacking, the condition of the right to maintenance ceases to exist.
When the man became aware of the lack of the filiation relationship with the minor, he immediately acted in court to obtain a sentence of “disavowal of paternity”.
Once the disavowal was obtained and the sentence was awaited, the man went to court to obtain the restitution of all the allowances paid to the “alleged son”.
What has the Italian Supreme Court established?
The Italian Supreme Court specified that “the maintenance, as it is based on the non-existence of the biological relationship of filiation that represents the prerequisite of the right to maintenance in favour of the recognized, can only unfold its effects retroactively”.
On closer inspection, according to the Italian Supreme Court, the parent who has unduly paid an allowance as maintenance of the child is entitled to request its restitution.
It is, in fact, a hypothesis of “undue objective” pursuant to art. 2033 of the Italian Civil Code, ruling about family Law, according to whose dictate: “those who have made an undue payment have the right to repeat (claim back) what they have paid. He is also entitled to fruits and interest from the day of payment, if the person who received it was in bad faith, or, if he was in good faith, from the day of the application”.
In other words, after the judgment establishing the lack of paternity, in Italy, you can now take legal action to obtain what has been unduly paid and also the accrued interest, by way of maintenance in favour of the child. The sums to be repaid will be counted from birth until the sentence of the disavowal of paternity, ascertained by an Italian court.
For any further information or assistance about Disavowal or Disclaimer of paternity in Italy, contact info@vgslawyers.com