The decision of the Italian Supreme Court of Cassation No. 20415/2025 has (finally) recognised the validity of agreements entered into by spouses concerning the regulation of their property relations in anticipation of a possible dissolution of the marriage.
Before analyzing the case and the decision, it is worthwhile to briefly recall the Italian legislative framework regarding the contractual autonomy granted to spouses.
Indeed, Article 162 of the Italian Civil Code provides that marriage agreements may be entered into at any time, even prior to marriage, and must be executed by public deed, in order to define the property regime established by the spouses, as well as other aspects of marital life.
This means that the agreement must be drawn up by an Italian notary, who acts as a public official, so to ensure that the agreement is authentic, that the parties have the legal capacity and that they fully understand the content and implications of the agreement, which is entered into freely and voluntarily, without any form of coercion or undue influence.
Such agreements must also be recorded in the registers of the civil status maintained by the local civil status officer where the marriage is (or will be) registered and may be amended over time, provided that the same form is observed, ensuring ongoing legal certainty.
Conversely, Article 160 of the Civil Code does not permit spouses to derogate from the inalienable rights and duties established by law as a consequence of marriage.
That being said, there are numerous countries in which prenuptial agreements are valid and, indeed, their execution is common practice within the socio-cultural context.
In Italy, the situation has always been different, but the recent development in the case law of the Supreme Court appears to have marked a significant turning point. First of all, the case involved two spouses, who during the course of their marriage (in 2011), entered into a private written agreement whereby it was agreed that, in the event of separation, the husband would be obliged to reimburse the wife for sums advanced by her for the renovation of a property owned by him, as well as for furnishings, described as “expenses for renovation, mortgage, and the installation of a new heating system” and as a “contribution to the welfare of the family, purchase of furniture and vehicles”.
At the same time, the wife waived possession of certain movable assets (boats, furniture, and sums of money).
After the couple separated in 2019, a dispute arose regarding the validity and enforceability of the 2011 agreement.
The husband sought to have the agreement declared null and void, arguing that it was contrary to public policy and mandatory legal provisions (specifically, Articles 143 and 160 of the Italian Civil Code, which set out the inalienable rights and duties of spouses).
The wife, on the other hand, sought to have the agreement recognized as valid and enforceable.
The Supreme Court dismissed the husband’s appeal and confirmed the lower courts’ decisions which stated the validity of such a private agreement entered into force between the spouses.
The Court reaffirmed that spouses have the autonomy to regulate their patrimonial relations through private agreements, even in anticipation of a possible marital crisis.
In fact, the obligation of reimbursement found its justification, upon the occurrence of separation, in the rebalancing of the economic resources that the spouses had mutually intended to ensure for each other, and was unrelated to the right/duty of moral and material support during the marriage.
Such an agreement is, in fact, to be classified as an atypical contract with a lawful suspensive condition, an expression of the spouses’ contractual autonomy aimed at achieving interests worthy of protection pursuant to Article 1322, paragraph two, of the Italian Civil Code, since the breakdown of the marriage is not the cause of the agreement, but merely a conditional event that would trigger its effects.
The agreement under discussion is, therefore, lawful because it did not violate the inalienable rights and duties of the spouses but it provides for an acknowledgement of debt in favour of the wife, in consideration of her financial contribution and it also recognises certain assets in favour of the husband, thereby freely, reasonably, and equitably regulating the spouses’ property arrangements in the event of dissolution of the community of property.
In fact, the Court of Cassation emphasized that there is no mandatory rule that prevents spouses, before or during marriage, from acknowledging the existence of a debt towards the other and making its repayment conditional upon the future and uncertain event of marital separation.
What remains clear is that such an agreement can in no case replace the maintenance allowance provided for by law, which remains subject to exclusive judicial determination, nor can it concern inalienable rights, such as those relating to children or the fundamental obligations of support.
On the other hand, spouses may validly agree on specific patrimonial matters, such as debts and property transfers, which may subsequently be taken into account by the court in separation or divorce proceedings.
Also, Italian law contemplates the possibility of spouses entering into agreements after the marriage has taken place—so-called postnuptial agreements.
These agreements, which are often overlooked in public discourse, can play a crucial role in regulating the economic and property relations between spouses during the course of their marriage and in anticipation of its possible dissolution.
Postnuptial agreements may be used to modify the property regime initially chosen by the spouses, such as switching from a regime of community of property to separation of property, or vice versa but they can also be employed to address specific financial arrangements, such as the allocation of certain assets, the management of jointly owned property, or the reimbursement of expenses incurred by one spouse for the benefit of the family or the other spouse.
Considering that also the recent Supreme Court decision has clarified that such agreements, provided they are executed in compliance with the formal requirements set out by law are valid and enforceable, as long as they do not infringe upon the inalienable rights and duties established by law, the principle that the autonomy of the spouses in managing their property relations extends throughout the duration of the marital relationship.
It is important to note that postnuptial agreements, like prenuptial agreements, cannot be used to predetermine or waive rights relating to maintenance or child support, nor can they be used to circumvent the legal protections afforded to the weaker party in the marriage.
However, they can serve as a useful tool for clarifying the financial expectations and responsibilities of each spouse, thereby reducing the potential for conflict in the event of separation or divorce.
In light of the above, it can be said that the Italian Supreme Court of Cassation’s decision No. 20415/2025 is emblematic of a significant shift in Italian family law, aligning it more closely with a broader European trend that increasingly recognizes and protects the contractual autonomy of spouses in regulating their property and financial relations.
The aim for the future should be to better reflect a modern understanding of the family culture, where marriage is seen as a relationship where both parties should be able to sign binding agreements for their mutual benefit, in respect of law provisions.
On this regard, it is worth precising that Italy has taken some relevant steps in family law, recognizing the diversity of family structures and providing legal tools to protect individuals in non-traditional relationships.
For example, the Italian Law No. 76/2016 regulates the “de facto” cohabitation relationships, referring to the couples who live together in a stable, continuous relationship, but who are not married or in a civil union between people of the same sex.
Indeed, the couple can enter into a cohabitation agreement which may regulate certain aspects of their life together, such as their property regime, how the couple will share household expenses (rent, utilities etc.), some inheritance rights (e.g. the right to remain in the shared home for a certain period after the partner’s death), the right to visit the partner in hospital in case of hospitalization, the right to make medical decisions for an incapacitated partner, if so designated, and other financial matters.
So, briefly, this recognition extends certain rights and duties to cohabiting partners, which were previously reserved only for married couples or those in civil unions.
For sake of completeness, the cohabitation agreement must be in writing and executed as a public deed or authenticated private agreement before an Italian notary or lawyer and must be registered with the local registry office to be effective against third parties.So, the aim of the Italian legislator was to make the couple able to define some legal aspects of their relationship, in light of the principle of contractual autonomy, to promote greater equality and non-discrimination, so to marks a move towards a more inclusive understanding of family, based on the reality of people’s lives rather than traditional legal definitions.
Family law is evolving together with the society and the new form of cohabitation and love relationships, so it is more than ever crucial to keep updated with any change, both in national and international framework.
