The constitutionality issue, raised by the Italian “Corte di Cassazione”, on the permanence of the affinity bond after divorce

On 23 June 2023, with the interlocutory order no. 18064, the first civil section of the “Corte di Cassazione” considered relevant and not manifestly unfounded the question of the constitutionality of art. 78, paragraph 3, of the Italian Civil Code, implicitly referred to in Article 64, paragraph 4, of the Local Authorities’ Consolidated Text, so called T.U.E.L. This last provision establishes the prohibition for subjects linked by a bond of affinity with the mayor in charge to become part of the relative municipal council and to be appointed representatives of the municipality or province.

In particular, to be left to the review of constitutionality was the part of article 78 in which it is established that "affinity does not cease for the death, even without children, of the spouse from whom it derives, except for some specially determined effects. It ceases if the marriage is declared null, without prejudice to the effects of art. 87, n. 4".

The Ermines, due to the importance of this question, considered that the latter could not be resolved through a constitutionally oriented interpretation of the legislation but required a definitive pronouncement of the Judge of the laws on its compliance with Articles. 2, 3 and 51 of the Constitutional Charter, which are pillars of our constitutional order.

The case that then led to the aforementioned ordinance, originates from the rejection by the City Council of Caposele, through the resolution of 16 July 2019, of the request, formulated by two citizens, to revoke the appointment of the newly elected vice-mayor for incompatibility between the office assigned to him and his alleged quality of affine, pursuant to article 64,  fourth paragraph, T.U.E.L; the latter, in fact, had been married to the sister of the mayor of the Municipality from whom, however, he had then divorced.

Not satisfied, the two applicants turned to the Court of first instance of Avellino, which, considering that there was no violation of Article 64 T.U.E.L., in turn, rejected the request made by the plaintiffs. However, the subsequent ruling of the Court of Appeal of Naples deemed that there was incompatibility between the office assumed by the vice-mayor and is affinity bond with the mayor. According to this Court, in fact, by the literal interpretation of Article 78 of the Civil Code, the bond of affinity remained even in the case of divorce between the two spouses.

That divergence of views within the jurisprudence stems from the persistent legal vacuum on the question of whether or not the effects of the affinity relationship following divorce cease to exist.

The bond of affinity, as stated in the third paragraph of Article 78 of the Civil Code, containing the general discipline of affinity relationships, is not indissoluble but ceases whenever the marriage is declared null. Quid iuris in case of divorce?

Article 78 of the Civil Code says nothing about this eventuality. This provision is, in fact, a clear heritage of the period in which the Civil Code was drafted; at the time, more precisely in 1942, the institution of divorce had not yet been envisaged, since was introduced only in 1970 with the famous law n. 898. As highlighted by the “Corte di Cassazione” in the aforementioned order, the legislator has not only never intervened to modify the code norm, but has also introduced into the T.U.E.L. a provision that, "although adopted in an era largely subsequent to the approval of the law on divorce, does not care to consider the consequences of the dissolution of the marriage bond from which affinity also originates and which,  to some extent, it should suffer the consequences."

It is not understandable, then, the reason for this silence, especially if we consider that with law n. 151 of 1975 was, instead, modified the text of article 87, first paragraph, n. 4 cod. That provision has, in fact, extended the prohibition on contracting marriage between relatives even in the event that the divorce has taken place and no longer only, as originally provided, limited to the case of the nullity of the matrimonial union. Within the jurisprudence of merit, some judges have recognized in the permanence of the bond of affinity limited to the specific hypothesis of the matrimonial impediment an exception to the general rule of the cessation of the effects deriving from the bond of affinity, pursuant to art. 78 of the Civil Code, not only in the case of nullity of marriage but also of divorce.

To try to stem this regulatory uncertainty, the “Corte di Cassazione” intervened with the aforementioned order. In particular, the Ermines, in referring the question to the Constitutional Court, have established that "the annulment of the marriage and its dissolution are situations united by an evident closeness from an effective point of view, given that in both cases a judicial initiative functional to the demolition of the marriage bond intervenes. [..] Nevertheless, in the event of annulment of the marriage, the loss of the marital bond entails the termination of the relationship of affinity and enables the now ex affine to hold public office. Access to the office that, instead, is precluded to the affine of the divorced ". It follows that, in this way, comparable situations are regulated in an unjustifiably dissimilar manner with a clear violation of the principle of substantive equality, enshrined in Article 3 of the Constitution.

Moreover, it is clear that this unjustified difference in treatment, as pointed out by the “Corte di Cassazione”, is contrary to the principles enshrined in Articles 2 and 51 of the Constitution. In fact, applying to relatives, whose relationship has arisen from a marriage bond now dissolved, the prohibition sanctioned by Article 64 TUEL, it does nothing but prevent the latter "from exercising their right to access a public office in conditions of equality despite the fact that the right to stand for election falls within the inviolable rights recognized by art. 2 Cost. and may be restricted only to the extent strictly necessary for the protection of another constitutionally protected interest and according to the rule of necessity and reasonable proportionality".

Therefore, in the light of what above said, in order to guarantee the respect for the fundamental principles protected by our constitutional system in this matter, the intervention of the Constitutional Court appears necessary.

author: Dott.ssa Chiara Saso