The Court of Cassation – Order No. 20415 of July 14, 2025 – recognized the validity of a property agreement entered into between spouses in anticipation of a possible future marital crisis. Although not a “prenuptial agreement” in the strict sense, it mirrors its function, namely to regulate ex ante certain economic aspects in the event of separation or divorce. The Supreme Court, in fact, defined such an agreement as an atypical contract with a lawful suspensive condition, an expression of the spouses’ contractual autonomy under Art. 1322 of the Civil Code, aimed at achieving interests worthy of protection.
In the case at hand, husband and wife had signed a private agreement in which they stipulated certain obligations sub condicione in the event of future separation: the husband acknowledged that he owed the wife a sum of money as repayment of financial contributions she had made during the marriage, while the wife undertook to relinquish in favor of her husband certain movable property of her own. The effectiveness of all these agreements was suspended upon the occurrence of a future and uncertain event: marital separation. Years later, the marital crisis did in fact occur and the wife demanded performance of the agreement; however, the husband objected to its validity, claiming nullity on the grounds of violation of mandatory rules and public policy principles (Arts. 143 and 160 of the Civil Code), namely the non-derogability of marital duties during marriage.
Both the Court of Mantua and the Court of Appeal of Brescia held the agreement to be valid. In particular, the appellate court recalled that, according to the case law of the Supreme Court, agreements by which spouses regulate their property relations in the event of marital breakdown are fully admissible, treating the marital crisis as a mere suspensive condition attached to the contract, as an expression of contractual autonomy and of interests worthy of protection under Art. 1322 of the Civil Code (see Cass. civ. Nos. 23713/2012 and 19304/2013). In the case at hand, by signing that private agreement prior to separation, the spouses had considered the future (possible) separation as a conditional event, thereby consensually predetermining certain patrimonial effects should that event occur. The appellate judges emphasized that the repayment obligation undertaken by the husband was intended, in the event of separation, to rebalance the financial resources between the parties based on the contributions made by each, without interfering with the duties of moral and material support within the marriage. In other words, the agreement did not derogate from the non-derogable rights/duties of spouses during married life (Arts. 143 and 160 c.c.), but merely provided for a patrimonial regulation post-breakdown of the union – akin to a loan between spouses to be repaid upon separation (cf. Cass. civ. 19304/2013).
When the matter reached the Court of Cassation, the Court rejected the husband’s appeal, confirming the validity of the agreement. In its reasoning, the Court addressed what has long been a taboo in Italian family law: the lawfulness of so-called prenuptial agreements. For decades, case law had declared null and void, for unlawfulness of cause, agreements between spouses intended to predetermine personal or property arrangements in view of separation or divorce, holding that such agreements could facilitate dissolution of the bond and, above all, violate the prohibition against disposing of non-derogable rights (such as spousal support in divorce). In particular, it had been held that any agreement made at the time of separation that conditioned the outcomes of a future and possible divorce – for example, agreements waiving divorce support, deemed by law to be non-disposable – was void, as it limited the parties’ freedom of action and defense in divorce proceedings. However, case law had admitted the validity of agreements intended to settle certain economic disputes arising between spouses, without reference to future divorce (see already Cass. civ. 8109/2000). Building on this line, Cass. 20415/2025 represents a shift in perspective: the Court characterized the agreement at issue not as an “agreement on separation” as such, but rather as an atypical contract lawfully conditioned upon separation. The Court stated that the failure of the marital union was not the cause of the contract, but merely the conditional fact that triggered its effectiveness. This served to neutralize the suspicion of unlawfulness: the agreement did not incentivize marital breakdown, but merely acknowledged it as a possible event, subordinating to it certain contractual effects. As such, the agreement falls within the scope of private contractual autonomy protected by law, provided it pursues interests worthy of protection. The Court emphasized that any contract, even if not expressly provided for by law, is valid if it pursues interests worthy of protection under Art. 1322 of the Civil Code. In the specific case, the agreement between the spouses sought to regulate in a reasoned and equitable manner their respective financial arrangements in the event of dissolution of the community of property, thereby preventing possible future disputes. A modern view of the family is thus emphasized, no longer as an unassailable entity placed above individuals, but as a community in which members can self-determine even as to the outcomes of a crisis, through informed agreements. Significant in this respect is the openness of case law even on non-property aspects: as early as 2014, it was held that, subject to mandatory protections, spouses may even agree in advance on issues such as child custody and visitation schedules, although such matters will in any case remain subject to judicial scrutiny in the best interests of the children (Cass. civ. 18066/2014).
Naturally, the Court of Cassation reiterated that all clauses affecting non-disposable rights or conflicting with mandatory rules remain invalid or unenforceable. In other words, private autonomy meets an insurmountable limit in the essential duties arising from marital status and in the protection of vulnerable subjects (first and foremost, children). Order 20415/2025 itself makes this explicit: agreements between spouses affecting non-derogable rights – e.g., arrangements to evade maintenance obligations or duties of moral and material support during marriage – remain prohibited. Similarly, any arrangement concerning minor children must always be subject to judicial scrutiny, to safeguard the overriding interest of the children themselves. In the present case, however, those limits were not crossed: the agreement did not deal with personal status nor did it provide for waivers of support or similar, but merely acknowledged and regulated a private debt between spouses. On this point, the Court observed that no mandatory rule prohibits spouses, before or during marriage, from acknowledging the existence of a mutual debt and subordinating its repayment to the future and uncertain event of separation.
In conclusion, Order No. 20415/2025 of the Court of Cassation marks an important evolution of family law towards greater recognition of the contractual autonomy of the parties, even in the pathological phase of the relationship. While still far from the classic Anglo-Saxon prenuptial agreements, the Court of Cassation embraces a more modern and realistic vision, recognizing the possibility of relying on lawful atypical contracts to settle the interests of spouses in anticipation of marital breakdown, within the limits set by law and respecting the non-disposable rights of each.
