Something new about post-marriage agreements in Italy; or maybe not

In a recent ordinance (n. 20415/2025 issued on July 21, 2025), the Supreme Court confirmed the validity of agreements between spouses conditioned on a future separation or divorce.

The decision, though saluted as revolutionary, rather falls within a well-established jurisprudential pattern. The case involved a husband (H) and a wife (W) who, during their marriage, made an agreement regarding mutual debts and credits. The wife had loaned the husband money, and the husband had transferred ownership of some assets to the wife. They agreed that, in case of separation, H would repay the loan, and W would transfer ownership of the assets back to H.

After separating, W sought to enforce the agreement against H. The lower courts granted her request. The Supreme Court found the agreement to be "reasonable and reasoned" and reiterated that such pacts are not illicit in principle, if they do not dispose of unavailable rights (such as personal status) and do not interfere with rights subject to judicial evaluation (parental responsibility; spousal/children’s support).

The rationale behind the decision rests on the distinction between "agreements between spouses" and "pure post-nuptial agreements" in our legal and procedural framework.

Italian family law procedures are fragmented. Separation, divorce, and parental responsibility (including spousal and/or child support) are distinct from all other issues that arise from the end of a relationship. In complex cases, Parties may either negotiate a comprehensive agreement or face at least three different proceedings.

This fragmentation may seem absurd, but it aims to ensure specialized judges and fast decisions in personal matters. This absurdity is often invoked to justify comprehensive marital agreements, which try to anticipate all dissolution consequences to avoid judiciary, but a distinction is mandatory.

"Pure post-nuptial agreements" regulate future spousal/child support, and parental responsibility in the event of the marriage's dissolution. These are generally considered null and void for three main reasons: (1) the freedom to end a marriage is incompressible, and its consequences cannot be determined by a prior agreement (this is a reason of ordre public); (2) the rights arising from separation or divorce are eventual in both their existence and amount, established based on the situation at the time of the decision: (3) there is a need to protect the more vulnerable party, who may not be in an equal negotiating position.

In contrast, the "agreement between spouses" faced by the Supreme Court was different. It did not regulate future eventual (personal) rights but rather the enforceability of actual and certain rights, conditioning their execution on the event of separation or divorce.

There are several precedents. E.g.: the Supreme Court has upheld an agreement where spouses agreed to a lump-sum payment to avoid future patrimonial disputes, not considering it spousal support. Other decisions have validated a loan between spouses with payment suspended until a future separation, and agreements on asset division in the event of divorce, with one spouse paying the other a life annuity.

In the ongoing tension between autonomy and heteronomy in family matters, one principle has so been confirmed: agreements between spouses are valid in Italy, if they do not dispose of future uncertain rights, unavailable to the parties or subject to the judge’s scrutiny, such as statuses, spousal/children support and parental responsibility.

Davide Piazzoni
Studio legale Piazzoni
​FLIN – Family Lawyers International Network
Rome, Italy