FAMILY LAW INVESTIGATIONS: THE COURT OF CASSATION JUDGMENTS

Pursuant to art. 143 of the Civil Code: "With marriage the husband and wife acquire the same rights and assume the same duties. From marriage derives the mutual obligation to faithfulness, moral and material assistance, collaboration in the interest of the family and cohabitation. Both spouses are required, each in relation to their assets and their ability to work professionally or at home, to contribute to the needs of the family."

According to the art. 151 Civil Code "the judge, pronouncing the separation, declares, where the circumstances exist and is requested, which of the spouses is responsible for the separation, in consideration of his behavior contrary to the duties deriving from the marriage"

The Constitution, in article 29, states that "the Republic recognizes the rights of the family as a natural society founded on marriage. Marriage is ordered on the moral and legal equality of the spouses, with the limits established by law to guarantee family unity. ”

Below are some important sentences issued by the Court of Cassation in relation to investigations in the field of family law.

INVESTIGATIONS ON CHEATING AND MARITAL INFIDELITY

Court of Cassation, civil section, sentence no. 11516 of 23 May 2014. In the context of judicial separation, the husband requests that the separation be carried out at the expense of the wife. To support his thesis there was numerous evidence of adultery which the wife had already committed months before the separation.

The Court of Appeal accepts this theory and revokes the wife's maintenance allowance. The evidence that the husband had brought to court is to be considered decisive for the wife's adulterous responsibility. In fact, the evidence allowed that, in the judicial context, it was possible to effectively reconstruct the violation of the spouse's duty of fidelity. Following this conclusion, the wife appealed to the Court of Cassation, complaining in particular about the inability to use the investigative evidence. The Court of Cassation rejects this appeal, thus affirming the full lawfulness of the use of the investigative reports.

Some articles related to this topic: Separation and Divorce Investigations; Legally valid Evidence of Betrayal; Revocation of maintenance allowance; When does spousal support stop? ; Investigations into marital infidelity and betrayal.

INVESTIGATIONS FOR REVALUATION OF SUPPORT ALLOWANCE

Court of Cassation, sentence n. 19042 of 12 December 2003. With this sentence the Court wanted to establish the reduction of the maintenance allowance for the ex-wife who carried out "illegal" work activities. In fact, the work of the spouse, even if illegal, constitutes an element of working or earning capacity. In the concrete case the judges considered legitimate the reduction of the maintenance allowance that a professor made to his ex-wife who in reality she was employed in a clothing store, not with a regular contract. In this case it is possible to contact an investigative agency to ascertain the real situation, and if so, have evidence to assert in court.

Some articles related to this topic: Investigations Revocation of maintenance allowance if the spouse carries out undeclared work activities, Divorce allowance and tax return, How to calculate maintenance allowance, Divorce allowance: how to deal with new relationships with or without cohabitation.

The parents of a minor can legitimately request an Investigation Agency to carry out checks on the activities that their child carries out, in order to ascertain the activities that the child carries out in the period of time in which he is not subject to parental control. It is not uncommon for a parent who has the feeling that their child is leading an unsuitable life and that in doing so could influence their entire future, turns to an investigative agency. Here the concept of parental authority is introduced, initially seen as the power/duty of the father to impart education to his children, since 1975 this concept equates the figure of the father and the mother, from here we begin to talk about parental authority. As regards this very delicate branch of investigations, being able to make use of this tool can be particularly useful in the context of:

Control of minors through specific investigations aimed at ascertaining: bad acquaintances, use of alcohol, narcotic substances, etc. Verification and assessment of the suitability of places, to have custody of minors (law 54/06) Protection of minors: investigations against pedophilia, harassment and/or mistreatment the possibility of reviewing the custody of the children (cases in which a sentence has been issued) in the event of failure to fulfill duties, due to the parent's frequent visits, the child's growth in an unsuitable place, etc. In the event that the possibility that the request to undertake an investigative process is presented by the parent who does not have a separation/divorce sentence and thus wishes to produce evidence that will have legal relevance and considerable weight in the context of custody

1. ARTICLE 709 TER CODE OF CIVIL PROCEDURE:

“(..) following the appeal, the judge summons the parties and takes appropriate measures. In the event of serious non-compliance or acts which in any case cause harm to the minor or hinder the correct carrying out of the custody arrangements, he may modify the provisions in force and may, even jointly:

warn the non-compliant parent order compensation for damages, paid by one of the parents, against the minor, order compensation for damages, paid by one of the parents, against the other condemn the non-compliant parent to pay a pecuniary administrative sanction, by a minimum of 75 euros to a maximum of 5000 euros in favor of the Fines Fund

The measures taken by the judge of the proceedings can be challenged in the ordinary ways."

Everything collected as part of these investigations has full legal relevance and represents a possibility to change the minor's life. The higher purpose of this type of investigative activity seems clear, namely the protection of the minor.

Court of Cassation, criminal section. III, of 12 November 2003 n 43135:

With this sentence, the Court stated that pedophilia, as a modification of the sexual object towards minors, although ordinarily having a habitual character, for criminal purposes does not exclude or attenuate the capacity to understand and will and, consequently, the criminal liability for sexual abuse against minors. This is what the court said following the defendant's request to use his reduced mental capacity as a mitigating factor. In this case, making use of the help of an investigative agency does not simply mean ascertaining a possible 'state of fact', which may concern violence of any kind towards the minor, but can be a real source of salvation for the same minor. In fact, the person who 'offends' the minor in any way can present himself as a complete stranger but, nothing prevents this person from being a member very close to the child, even a family member. The task of an investigative agency is to provide documentary evidence that will have full legal relevance.

As also reported by the newspaper La Repubblica "In Italy there are 77,493 minors in the care of social services for maltreatment. And 91.4% of abuse occurs within the family." (Click here to read the full article published in La Repubblica on 4 December 2022)

Some articles related to this topic: Separation and exclusive custody of children to the father, The principle of the exclusive material and moral interest of the minor, Sole custody in the event of moving abroad.

Stalking is a term used to indicate a series of attitudes held by an individual, called a stalker, which afflict another person, persecuting him, generating states of anxiety and fear, even compromising the conduct of normal daily life.

According to ISTAT data, 16.1% of women have suffered stalking (Data updated to 2014)

Article 612 penal code:

Unless the fact constitutes a more serious crime, anyone who, through repeated conduct, threatens or harasses someone in such a way as to cause a persistent and serious state of anxiety or fear or to generate a well-founded fear is punished with imprisonment from six months to five years. for their own safety or that of a close relative or of a person linked to them by an emotional relationship or to force them to alter their lifestyle habits.

The penalty is increased if the act is committed by the spouse, even if separated or divorced, or by a person who is or has been linked by an emotional relationship to the offended person or if the act is committed through IT or telematic tools.

The penalty is increased by up to half if the crime is committed to the detriment of a minor, a pregnant woman or a person with a disability referred to in article 3 of law no. 5 February 1992. 104, or with weapons or as a misrepresented person.

The crime is punished upon complaint by the offended person. The deadline for filing a complaint is six months. The dismissal of the complaint can only be procedural. The complaint is however irrevocable if the act was committed through repeated threats in the ways referred to in article 612, second paragraph. However, action is taken automatically if the act is committed against a minor or a person with a disability referred to in article 3 of law no. 5 February 1992. 104, as well as when the fact is connected to another crime for which action must be taken ex officio.

Court of Cassation sentence of 30 August 2016, n. 35778:

The existence of the crime of stalking finds its foundation in the conduct of the agent who has integrated in the victim a state of anxiety and fear for his own safety.

The sentence states that “stalking is a crime that involves alternative events, the realization of each of which is suitable to integrate it; therefore, for the purposes of its configuration, a change in the lifestyle habits of the offended person is not essential, it being sufficient that the offending conduct has induced in the victim a state of anxiety and fear for his or her own safety"

The Court of Cassation, sentence no. 21407 of 23 May 2016:

To integrate the case of stalking, multiple forms of harassment represented by single messages published on the social network, in particular Facebook, are sufficient. In this way, social networks take shape in terms of the implementation of crimes. Concretely, an investigative agency is able to ascertain all behaviors that fall within the category of stalking, producing full evidence that will have full and well-founded legal and procedural relevance.

Some articles related to this topic: Investigation Agency for Stalking cases, Stalking, what it is and how to fight it