News Supreme Court rulings November 2021

New cohabitation and divorce allowance: clarification from the United Sections

In ruling no. 32198 of Nov. 5, 2021, the Joint Sections intervened to resolve a contrasting interpretation on the issue of divorce allowance in favor of the economically weaker spouse who has established a stable cohabitation with a new partner.

In particular, the Supreme Court clarified that the establishment of a new cohabitation does not necessarily result in the automatic and full loss of the right to divorce benefits.

However, the circumstance is capable of affecting the quantification and revision of the same: the former spouse, deprived of adequate means, retains the right to the allowance, but in an exclusively compensatory function, as he or she cannot continue to claim payment of the welfare component of the allowance, in whose respect the new sentimental bond replaces the former one.

Legitimate technological defensive check on individual worker in case of well-founded suspicion

The Supreme Court of Cassation, in a judgment Nov. 12, 2021, no. 34092, provided interesting clarifications on the subject of technological defensive control, by the employer, against its employees, following the amendment of Article 4 of the Workers’ Statute by the “Jobs Act.”

The Ermellini have, in fact, clarified that a distinction must be made between defensive controls “in the broad sense,” carried out on all employees, which must necessarily be carried out in compliance with the provisions of the amended Article 4, and defensive controls “in the narrow sense,” aimed at specifically ascertaining unlawful conduct attributable, on the basis of concrete indications, to individual workers, which, although carried out with technological tools, not having as their object the normal activity of the worker, are outside the scope of application of the aforementioned Article 4.

In the latter case, defensive control is not permissible if it is “an end in itself,” while it must be considered legitimate “where it is targeted and where the collection of information is implemented, by the employer, as a result of a well-founded suspicion about the commission of wrongdoing by the employee.”

From the Supreme Court, yes to “mild adoption”

The Supreme Court, in Order no. 35840/2021, made it clear that full and legitimizing adoption, which severed all ties with the family of origin, should be thelast resort to be resorted to only if maintaining a bond with the parents is contrary to the best interests of the child.

Where this circumstance does not exist, the solution of “mild adoption,” in which the legally established filiation bond overlaps with the blood bond but does not extinguish it, is to be preferred, especially, in cases of cyclical or semi-permanent abandonment caused by parental fragility, which occurred in the presence of a significant emotional relationship between natural parents and children.