The Italian Supreme Court has handed down judgment No.5652 dated April 10, 2012, according to which the parents’ obligation to maintain their children (articles 147 and 148 of the Italian Civil Code) arises on the sole grounds that they have given birth to them.
This means that – in the event that only one of the parents recognizes the child – the other parent is obliged to provide for the child’s maintenance for the period prior to the judicial declaration of paternity or maternity, since the child acquires from the moment of birth the right to be maintained and educated by both parents.
The case at hand concerned the action brought by the plaintiff against the defendant requesting that the latter pay alimony checks and damages on account of the former being the son of the defendant, who had interrupted all relations with the plaintiff’s mother after his birth and refused to recognize his son and maintain him (with easily imaginable consequences for his mother, who was not particularly well-off).
As is well known, parents’ obligation to maintain their children arises directly from article 147 of the Italian Civil Code, which provides that the parents’ marriage obliges then to maintain and educate their children, taking into account their children’s capacities, natural inclinations and aspirations.
Such obligation must be performed by both parents, in proportion to their financial possibilities and their capacity of work (whether such work be carried professionally or in the household).
This obligation extends not only to alimony obligations but also to any and every need expressed by their child. According to Italian Supreme Court, judgment no.4203 of 2006, parents’ obligation to maintain and educate their children pursuant to article 147 of the Italian Civil Code obliges parents to provide for their child’s various needs in terms of housing, schooling and healthcare, as well as an appropriate domestic environment until such time as the child’s age so requires.
To this effect, the case law has almost unanimously held that the obligation to maintain a child does not cease when the child becomes an adult but continues until the latter becomes self-sufficient or it is ascertained that the lack of self-sufficiency is the latter’s fault. The unjustified refusal to work will lead to the child no longer being entitled to being maintained by its parents (cfr., among many judgments, Italian Supreme Court judgment no.951 dated 2005). The Supreme Court judges have held, however, that proof thereof is not provided by obtaining academic qualifications such as a degree or the child getting married (which does not necessarily give rise to a new financially independent family).
In other words, parents are obliged to maintain their child until an event happens which signifies the child’s willful failure to become self-independent.
Italian Supreme Court, judgment no.24018 of 2008 has also held that the parents’ obligation to maintain their child is revived in the event that an adult son or daughter leaves a job (which is considered inadequate when compared with the latter’s aspirations) and starts studying once again, provided that the child’s aspirations may be satisfied in a reasonable timeframe and the refusal to work is compatible with the family’s economic possibilities (cfr., in this sense, Italian Supreme Court judgment no.4102 of 2007, which held that parents should continue maintaining their son, who was thirty years old and had qualified as an accountant and surveyor but had only found a job as a trainee bricklayer and Italian Supreme Court judgment no. 407 of 2007, which held that the refusal of a traineeship was also justified on the basis that it was paid less than an ordinary job).
Italian Supreme Court judgment no.23596 of 2006 held, instead, that parents are no longer obliged to maintain a child who qualifies abroad as a lawyer since the latter is put into a position of being financially independent.
Another problem is that of establishing the manner in which such obligation to maintain the child should be performed where the parents are separated or divorced.
The Italian Supreme Court has held, with judgment no.21437 of 2007, that the separated or divorced spouse, who already has custody of the minor is entitled after the latter – who is cohabiting with such spouse – has become an adult and is not economically self-sufficient, to obtain from the other spouse a contribution to the child’s maintenance until such time as the child decides to request by itself to be maintained by the other parent.
This position, however, is criticized by some commentators who, in fact, believe that legal representation, and, therefore, the legitimacy of the parent should be justified only for as long as the child is without a capacity to act (which is no longer the case when the child becomes an adult).
Another issue is that concerning the possibility of the parent offering to directly maintaining the child instead of paying alimony.
In this regard, an authoritative legal scholar is of the opinion that a parent cannot force a child to be maintained directly (by providing a roof, food and clothing) instead of paying an alimony check (cfr. Italian Supreme Court judgment no. 38 of 1976 and Court of Prato judgment no.1463 of 2010, according to which such solution would be an infringement of the child’s personal liberty).
