- An agreement between spouses that regulates their financial relations in case of separation or divorce is no longer seen as void in every case: the Court of Cassation has recognised that it can be valid (ord. No. 20415/2025).
- Duties that the law does not leave to the will of the parties remain excluded, such as moral and material assistance and the maintenance of children.
- It is advisable to draft the agreement with a lawyer and a notary, clearly and proportionately.
Published on October 12, 2026.
What the Court of Cassation decided
With order No. 20415 of 2025 the Court of Cassation examined the case of a couple from Mantua. The husband had undertaken in writing to repay his wife 146,400 euros, including expenses for a home registered in his name and sums paid with her money. He disputed its validity. The Court sided with the wife.
The reasoning is this: separation is not the purpose of the agreement, but a condition. As long as the marriage lasts, the agreement produces no effects. When the couple separates, the agreement applies. The basis is the freedom of contract provided by art. 1322 of the Civil Code, provided the interest is worthy of protection.
What cannot be written
The same decision recalls that agreements that change the duties that the law does not leave to the spouses’ choice are not allowed. For example the obligations of moral and material assistance. Agreements that affect minor children remain under the control of the judge, who looks to their interest.
There is, today, no law that governs prenuptial agreements in a general way. For this reason each clause must be assessed carefully: validity depends on the content, not on the name of the deed.
What can be regulated, in practice
- Repayment of sums and expenses paid by one of the two for the other’s assets (as in the decided case).
- The fate of a home or an asset bought with the money of only one.
- Payment methods and guarantees, if the couple separates.
These are clauses that are better written when there is a clear reason and a precise amount or criterion.
Frequent case
Frequent case described in general terms: names, places and details do not refer to real people or cases.
Before the wedding, a couple decides to renovate the home owned by him, with her savings. They write that, if they separate, he will repay the documented sums. Years later the couple separates and he refuses to pay, saying the agreement is not valid. If the undertaking is clear and proportionate, the most recent case law is more favourable to its validity.
The best solution for you
- If you are getting married or already are: the safest route is to put in writing what belongs to whom and how the money spent is repaid, with documents and amounts. It is better than a verbal promise.
- If the choice concerns the property regime: it is often advisable to consider separation of property before a notary, which has certain rules, before an atypical agreement.
- If you have already signed an agreement and want to enforce it: keep the original, the payment receipts and every message; a written formal notice is usually the first step before a lawsuit.
What to do right away: put together the documents on the money spent and ask a lawyer to read any agreement before you sign it or enforce it. No route guarantees an outcome.
How Avv. Fiorentino can assist you
- He reads the agreement (or writes it for you) and checks that it does not touch rights that the law does not leave to the parties.
- He gathers the evidence of payments made for the other spouse and for the home.
- He assesses with you whether an agreement, separation of property or a formal notice is better.
Frequently asked questions
Are prenuptial agreements always valid?
No. They can be valid if they regulate financial aspects in a lawful and proportionate way. They are not valid if they change mandatory duties or harm the children.
Can I waive the divorce allowance in advance?
It is the most delicate point and the answer must be assessed on the case. The code and the divorce law do not leave every choice to the parties: an opinion is needed before signing.
Is a notary needed?
For transfers of real estate, yes. For other clauses, the written form is much safer than a verbal agreement.
The Firm sees clients in Naples (P.zza Giovanni Bovio 22 and Via Monte di Dio 14), in Rome and in Bari, by appointment, and remotely.
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Read also
Separation and divorce: the three routes, the timing and what to do before deciding
Succession agreements: why they are forbidden and what can be done instead
Sources: Normattiva, Court of Cassation. Author: Avv. Renato Giuseppe Fiorentino, Bar of Naples. Informational text, it does not replace an opinion on your case.
Main page for this subject: Separation and divorce in Naples: all the guides and how to contact the Firm →
(Read also): Legal guides from Studio Legale Fiorentino · Separation and divorce: the three routes, the timing and what to do before deciding · Divorce: how it works and what it involves after the Cartabia reform
Translated from the Italian original; updated on October 18, 2026.
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