Matrimonio "per prova" e risarcimento del danno

This note offers a critical analysis of a recent decision by the Italian Supreme Court, which denied compensation to a spouse who was unaware that the other party had entered into the marriage solely as a temporary “trial”. In its ruling, the Court prioritized the protection of individual autonomy – specifically, the freedom of the spouse who approached the marital bond with a unilateral mental reservation. However, this emphasis came at the expense of the relational dimension of marriage and the duties it entails: both pre-contractual obligations, such as the duty of disclosure, and obligations arising within the marriage itself, such as the reciprocal duty of moral support. Significantly, the judgment also signals a move beyond the so-called contractualist paradigm of marriage – which has often been framed as a manifestation of the broader “privatization” of marriage – in favor of an interpretive framework rooted in the language of fundamental rights. In response, this note advocates for a neo-institutional framework that better reflects the distinctive legal character of marriage within the Italian legal system, as compared to less formal forms of cohabitation. Such a framework, it is argued, provides a more coherent basis for assessing both the systemic implications of the marital bond and the nature of the liability arising from its breach.