A private agreement that establishes the obligation of a spouse to repay the sums received during
The marriage by way of a loan can be legitimate
The Court of Cassation decided this with sentence 19304/2013. The agreement in question is not part of the premarital agreements (inadmissible), but it would be a lawful ” loan agreement ” subject to a suspensive condition .
To open the discussion was a woman who asked her ex-husband for the return of the 20 million lire he had lent him during the marriage, when their crisis had not yet begun. Although the man opposed the restitution, she went ahead. The obligation of reimbursement, says the lady, was triggered at the time of separation, as was indicated in the private agreement signed by both .
The court accepted the woman’s request, and the appeals court confirmed: the commitment undertaken was legitimate and could not affect the partner’s freedom to terminate the relationship.
The defense, on the other hand, stated that the private writing carried out by the two former spouses was void due to the illegitimacy of the condition precedent and coercion of the right of separation. The prospect of having to repay the loan after a marriage crisis, however, could not have caused a limitation of the freedom of man by the lady.
In the ambit “in the privacy of family life” (so the Cassation ruled), moreover, nothing prevents you from writing on paper.
The agreed loan repayment methods
The lady’s question received the desired answer: the former spouse had to repay the loan she had granted him during the marriage. The private writing with which a spouse agrees to return to the other the sums eventually given in case of separation is therefore valid: it does not represent an inadmissible premarital agreement, but a loan agreement subject to a suspensive condition.