Recipients: lawyers, legal advisors and interested in the allocation of the TFR after the divorce
The analysis concerns the right of the divorced ex-spouse to obtain a share of the end-of-relationship treatment (TFR) accrued by the other spouse, with particular attention to the assumptions provided for by law, at the time the right arises, the calculation criteria and the most recent case-law guidelines.
The starting point is Article 12-bis of Law No 898 of 1 December 1970, which governs the share of the TFR due to the divorced spouse in the presence of specific conditions. It is essential to distinguish this right from the simple existence of a previous marriage and from personal separation, which does not automatically attribute the same claim.
The decision addresses the relationship between the assessment of the economic and capital conditions of the parties, the reliability of the declared income and the recognition of the divorce allowance.
According to the published reconstruction, the judge of merit had excluded the assumptions of the allowance, also considering instructors relating to undeclared income and the absence of an economic imbalance attributable to the choices of family life. The Supreme Court considered that the censorships directed against this assessment were inadmissible, within the limits resulting from the reasoning of the decision.
The consequence for the application for the TFR is important: if the assumption of ownership of the divorce allowance is lacking, the requirement necessary to obtain the quota provided for in Article 12-bis is also missing.
The ruling therefore confirms that the application for TFR cannot be examined in isolation from the legal situation of the former applicant spouse. It is necessary to verify whether the title to the divorce allowance exists in accordance with the legal requirements.
However, the decision does not mean that any dispute over the TFR must be resolved through a new overall assessment of the economic conditions: when the allowance has already been recognised and the security is effective, the concrete situation and any subsequent measures must be verified.
The regulatory framework: Article 12-bis of the Law on Divorce
The reference discipline is Article 12-bis of Law No 898 of 1 December 1970, which recognizes the divorced spouse, in the presence of the requirements established by law, the right to a share of the end-of-relationship treatment received by the other ex-spouse.
The provision identifies three basic conditions:
a judgment of dissolution of the marriage or termination of its civil effects must have been delivered;
the requesting spouse must not be passed to a new marriage;
the applicant spouse must be the holder of the divorce allowance pursuant to Article 5 of the same Act.The fee provided for by law is equal to 40% of the total allowance for the years in which the employment relationship coincided with the marriage. It is therefore not 40% of the entire TFR in any case: it is necessary to identify the part accrued in relation to the years of connection between the working relationship and the marriage.
The right is distinct from the legal communion of assets and does not require that the TFR has been accumulated during a specific property regime. Its function is to allow a postponed participation in an economic component related to the work activity carried out during the marriage.
The regulatory reference can be consulted through Normattiva – Law no. 898/1970.
The most recent case law: the order of the Supreme Court No. 24798 of 27 August 2026
One of the most significant developments identified in the reference period is the order of the First Civil Section of the Court of Cassation of 27 August 2026, No. 24798, relating to the conditions of the divorce allowance and the consequent right to the share of the TFR of the former spouse.
3. The pension fund and the TFR: the distinction made by the Supreme Court
A particularly relevant precedent, despite having been published before the quarter in question, is the order of the Civil Court, First Section, 15 May 2026, n. 14454.
The decision concerns a concrete question: what happens when the worker transfers the accrued TFR to a supplementary pension fund? Can the ex-spouse still ask for the 40% share?
The Supreme Court distinguished two situations:
Conferral to the pension fund before the application for divorce: the TFR already granted to the fund does not fall, according to the stated principle, in the share that can be claimed pursuant to Article 12-bis.
Conferral to the pension fund after the divorce application: the share of TFR accrued during the marriage remains subject to the discipline provided for by the rule, within the limits specified in the decision.The moment of conferment therefore assumes a decisive importance. It is not enough to know that the TFR was matured during the marriage: it is necessary to reconstruct even when it has been transferred to the supplementary pension provision with respect to the proposal of the divorce application.
The ruling is part of an interpretative path already started by the Supreme Court with the judgment no. 20132 of 18 July 2025, which had excluded the application of Article 12-bis to the contributions made before the application for divorce, without prejudice to the possible importance of social security benefits for the purposes of determining or amending the divorce allowance.
For lawyers, the documentary reconstruction of the payments to the pension fund can therefore be decisive: it is necessary to acquire the documentation of the employer, the fund and the divorce proceedings.
Does the divorce check need to be actually collected?
Another important clarification derives from the order of the Civil Court No. 1174 of 20 January 2026, before the period considered but relevant for the applicable discipline.
The Court clarified that the requirement of ownership of the divorce allowance shall exist when the cheque was recognised by the divorce judgment and the title thereto has not been revoked or amended. The failure to make an effective payment of the allowance over time does not, in itself, exclude the right to the share of the TFR.
The distinction is essential: the legal ownership of the cheque does not necessarily coincide with its material payment.
It follows that:
if the cheque has been recognized by a measure still effective, the non-collection does not automatically result in the loss of the right;
if the allowance has been revoked, the effects of the measure and the existence of the requirements at the relevant time should be verified;
if the parties have entered into property agreements, it shall be examined the content and whether they have actually amended the judicial title.The same ordinance points out that private agreements and declarations of waiver cannot be assessed in the abstract: their scope must be reconstructed in the light of the concrete content and legal effects produced.
The calculation criterion: how to determine the due share
Article 12-bis provides for a share equal to 40% of the total allowance for the years in which the employment relationship coincided with the marriage.
The calculation therefore requires distinguishing:
the total working period relevant for the purposes of the TFR;
years of connection between the working relationship and marriage;
the amount of the TFR actually accrued and received;
any components which, by a legal nature, do not fall within the basis of calculation.By way of example, if the employment relationship lasted 20 years and the marriage coincided with 10 of these years, it cannot be assumed that 40% of the entire TFR automatically taste. The share related to the period coinciding with the marriage should be determined and the legal percentage should be applied to that share.
The United Sections of the Supreme Court, by judgment no. 6229 of 7 March 2024, have also clarified that not all the sums paid for the termination of the employment relationship are included in the discipline: the incentive allowance to the exodus, for example, is excluded when it constitutes the consideration of the early termination of the relationship and not an allowance determined according to the duration of the relationship and the remuneration.
This distinction is crucial in cases where the employer has paid more economic items on the occasion of termination of the relationship.
When the right is born and what checks to carry out
The right to the quota does not automatically coincide with the divorce ruling. It also presupposes the termination of the ex-spouse’s employment relationship and the maturation of the right to receive the relevant treatment.
A decision of the Court of Palermo of 13 April 2026, no. 2411, reiterated that the conditions provided for by Article 12-bis must be verified at the time when the right to payment of the TFR matures. Since this is a decision on the substance, it is appropriate to verify its full text before citing it in a judicial act.
From a practical point of view, it is appropriate to acquire:
- the divorce judgment and any measures on the cheque;
- documentation relating to the termination of employment;
- the analytical prospectus of the liquidated TFR;
- the reconstruction of the duration of the marriage and the working relationship;
- any documents relating to the transfer of the TFR to pension funds.
The application must be constructed on the basis of the documents actually available, also verifying whether new marriages, revocations or modifications of the cheque and other relevant circumstances have occurred.
7. Practical implications for former spouses and professionals
The case law examined suggests three operating lines.
For the requesting spouse, it is essential to verify the existence of an effective title to the divorce allowance and to accurately reconstruct the working period coinciding with the marriage.
For the obliged spouse, it is important to document the composition of the TFR, any sums transferred to the supplementary pension provision and the dates of the transactions carried out.
For lawyers, the procedural strategy must distinguish the ownership of the allowance, the maturation of the right to the TFR and the exact identification of the sums subject to the legal fee. Confusing these profiles may lead to overestimated requests or non-relevant disputes.
8. Conclusions
The share of the TFR payable to the former spouse constitutes a property right independently governed by Article 12-bis of Law No. 898/1970, but subject to precise conditions.
The most recent case law confirms the importance of the ownership of the divorce allowance and clarifies the emphasis of the TFR’s transfer operations to supplementary pension provision. The calculation must also concern only the part of the allowance relating to the years of connection between marriage and working relationship, without automatically extending to all the sums paid at the termination of the relationship.
The documentary verification of the conditions provided for by law, the title to the allowance and the composition of the liquidated sums therefore represents the essential step to assess the validity and extent of the claim.
Editorial sources
- Legge 1° dicembre 1970, n. 898 – Normattiva.
- Cassazione civile, Sez. I, ordinanza n. 24798/2026 – Osservatorio Famiglia.
- Cassazione civile, Sez. I, ordinanza n. 14454/2026 – testo della decisione.
- Cassazione civile, Sez. I, ordinanza n. 1174/2026 – Osservatorio Famiglia.
- Cassazione civile, Sezioni Unite, sentenza n. 6229/2024 – Corte di cassazione.
- Tribunale di Palermo, sentenza n. 2411/2026.
The contribution has informational purposes and does not replace legal advice on the concrete case.
