Failure to pay the maintenance allowance, particularly when the obligated parent is in genuine economic hardship, raises a central question: can anything be done? In such cases, the line between criminal liability and the objective impossibility of complying becomes decisive in shaping the defence strategy.
I personally handled a case in which I defended AL., a separated father who, following job loss and a serious economic hardship, was no longer able to pay the monthly allowance of 600 euros set by the Court in favour of his minor children. The situation was particularly complex because, despite his evident financial difficulty, he had nonetheless been convicted at first and second instance for the offence of breach of the duties of family assistance.
The defence strategy: the economic impossibility of complying
We therefore built the defence around a fundamental element: the actual economic impossibility of meeting the obligation, thoroughly documenting the job loss, the absence of stable income and the precarious conditions in which my client found himself. In particular, we challenged the fact that the trial courts, while acknowledging the critical economic situation, had failed to give due weight to those circumstances when considering the grant of a suspended sentence.
The intervention of the Italian Supreme Court
The matter was brought before the Italian Supreme Court (Corte di cassazione), which upheld the petition, clarifying a highly significant principle: where concrete elements emerge that cast doubt on the defendant's ability to pay, the judge is required to carry out a reasoned assessment of the defendant's financial circumstances. In particular, where a suspended sentence is conditional on the payment of sums of money, a real verification of the possibility of complying cannot be dispensed with.
The Court noted that there are two lines of case law on this point, and chose to follow the more protective one, according to which the judge cannot disregard the defendant's economic situation when it is clearly shown by the case file. In AL.'s case, the Court of Appeal had not applied this principle correctly, which is why the judgment was set aside and remitted.
Conclusions
This case demonstrates a key point: failure to pay maintenance is not automatically synonymous with criminal liability. Where the parent is in a situation of genuine economic hardship, it is possible to build an effective defence by bringing forward every element that proves the impossibility of complying. A properly framed case can have a decisive impact on the outcome of the proceedings, avoiding criminal consequences that would be disproportionate to the person's actual circumstances.