The distinction between the offence of abuse against family members or cohabitants and stalking aggravated by an emotional relationship

By judgment of 4 July 2024, no. 20352/24, the Court of Cassation, Third Criminal Division, delivered a notable judgment on the difficult dividing line between the offence of domestic abuse and that of stalking to the detriment of a former cohabitant or spouse.

That judgment clarified that “abusive conduct towards a spouse which begins in the domestic setting and continues after a subsequent de facto or legal separation constitutes the offence of domestic abuse, and not stalking, because the spouse remains a ‘member of the family’ until the civil effects of the marriage cease (or the marriage bond is dissolved), regardless of cohabitation”.

Separation between spouses must therefore be regarded as “a condition that affects only the concrete arrangement of living conditions, and not the ‘status’ acquired through marriage, releasing the spouses from the duties of cohabitation and fidelity, but leaving intact the duties of mutual respect, moral and material assistance, and cooperation in the interest of the family, which flow from Article 143, paragraph 2, of the Civil Code.”

For cases in which cohabitation “more uxorio” has ended, the case law of the Court of Cassation, there no longer being any legal obligation, has held that harassing, persecutory and abusive conduct may at most, where the structural elements of the offence are present, fall within the typical features of the offence of stalking.

The Third Criminal Division did, however, address particular cases in which cohabitation has ended, specifying that “the offence of domestic abuse, and not that of stalking, is made out when a bond comparable to a family bond nevertheless remains between the persons, by reason of a continued habit of living together or of the shared exercise of parental responsibility under Article 337 ter of the Civil Code.”

In this way the Court set the boundaries to be applied at the end of a relationship of mere cohabitation, while leaving unresolved analogous situations, especially the sharing of the parental relationship, in cases of divorce, which remain outside both of the principles of law set out above.