PRE-MARRIAGE AGREEMENTS?

The Italian Supreme Court's ruling no. 20415 of 21 July 2025 can be described as a historic decision, which opens the door to the validity of financial agreements entered into between spouses in view of a possible future separation.

Historically, our legal system has always opposed the validity of pre-marital or pre-divorce agreements, considering them contrary to public policy due to the risk of compromising inalienable rights such as child support and custody, or alimony.

The relevant legal framework is based on Article 1322 of the Civil Code, which recognises the freedom of the parties to enter into agreements, even atypical ones.

This is possible only provided that they do not contravene mandatory rules or public policy. In the past, however, case law had often denied the validity of agreements that regulated in advance the financial consequences of separation, considering them potentially detrimental to fundamental rights.

With Decision 20415/2025, the Supreme Court has decisively changed its approach, recognising the lawfulness of agreements entered into between spouses during marriage.

These agreements are intended to regulate, in a balanced and preventive manner, financial aspects that will only come into effect upon separation or divorce. They are genuine “atypical contracts with lawful suspensive conditions”, whose effectiveness is therefore subject to the future and uncertain event of marital crisis.

A concrete example concerns the case of a sum paid by the wife for the renovation of her husband's property, which, in the event of separation, the husband undertook to repay.

Despite the novelty, the Court of Cassation points out that agreements that affect mandatory rights, such as those of children, or that limit alimony, which are strictly protected by law, are excluded from validity.

In short, the Court of Cassation seems to be saying to spouses: “You can agree beforehand, but without ruthlessness in divorce. So, a lot of autonomy, but with common sense... and no “Romeo and Juliet” style agreements when it comes to assets!”. After all, even in love, a little negotiation doesn't hurt, as long as it doesn't turn into a war of legal documents.

last update novembre 2025