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Italian Divorce and Separation Law

How does a divorce and separation work in Italy?





Q: How does a divorce and separation work in Italy?

A Brief Guide to Italian Matrimonial Law

LEGAL SEPARATION IN ITALY

The Italian legal separation of the spouses is regulated by the Italian Civil Code, the procedural code and related statutes.

The legal separation in Italy does not break up the marriage, but instead divides the legal communion, the duty of marital fidelity and necessity to cohabitate.

Moreover, the legal separation of the spouses in Italy, unlike a divorce, is temporary so that the couple can reconcile, without formalities before the Tribunal or in the City Hall of their residence issuing an ad hoc declaration.

The Italian legal separation may result in affecting the personal and patrimonial relations between wife and husband and between parents and children; by the way of example:

  • Patrimonial issues on the communion of the goods and estate;
  • Alimony;
  • Custody and visitation of the children;
  • Family home.

The Italian legal order provides for two kinds of legal separation: separation by mutual consent or judicial separation.

On a side note, spouses in Italy may also opt for a separation in fact. However, such a separation does not produce any judicial effect.  Although it is not an illicit practice, if one of the spouses leaves the family home or establishes a extra-conjugal relation, such  behavior could be considered as grounds in the case of judicial separation.

Separation by mutual consent in Italy: In this case, both spouses decide to separate by mutual consent. An agreement between them on aspects of the separation is required and must be reached. A joint recourse must be filed with the competent Italian Court. Once filed, the first hearing is fixed wherein both spouses must appear before the Italian Court for the compulsory attempt to reconcile required by Italian law. The Italian Court may take necessary measures in safeguarding the weaker (non moneyed) spouse.  From this date, the three year term necessary to be entitled to divorce begins to accrue. After the three year period has elapsed, if the agreement between the spouses is considered by the Italian Court fair and not prejudicial to any of them or the children, the Italian Tribunal may grant the separation adopting it by decree (‘decreto di omologa’). The conditions provided therein can be modified or revoked if new facts come to light.

Italian Judicial separation in Italy: If there is no agreement between the spouses to require a separation by mutual consent, each spouse can file a recourse for judicial separation. The spouse can also ask the Italian Tribunal to ascertain the violation by the other spouse of one of the duties descending from the marriage (e.g. duty of marital fidelity, cohabitation, etc.).  In this case, the appealing spouse can ask for a judicial separation “with charge” (‘con addebito’). If the charge is recognized by the Tribunal, the spouse at issue may not be entitled to the maintenance and may lose some other rights as against the other spouse. Similar to the case of separation by mutual consent, at the first hearing, both spouses must appear before the Court for the compulsory attempt to reconcile as required by Italian law. The Italian Court may take the necessary measures to safeguard the financially weaker spouse. The proceedings carry on according to the ordinary procedure and at the end a final judgment is granted by the Italian Court. However, at the first hearing, the Italian Court can also grant a not-definitive judgment, immediately pronouncing the separation of the spouses and carrying on the proceedings just on the disputed matters. In this case, the three year term for the spouses to be entitled to task for the divorce starts to accrue from this hearing so that they could require the divorce before the definitive judgment of separation is granted. A proceeding for judicial separation in Italy can also be converted into a proceeding for separation by mutual consent.

DIVORCE IN ITALY

The Italian divorce is the legal dissolution of the marriage canceling the legal duties and responsibilities deriving from the marriage and dissolving the bonds of matrimony between the parties.

The proceedings for divorce are expressly regulated by the Italian civil code, the civil procedural code, and by Statutes no. 898/1970 and no. 74/1987.

As in the case of separation, also the proceedings for divorce can follow two different procedures:

Joint divorce in Italy: in this case, both the spouses agree on the terms of the divorce and they both file the joint recourse for divorce with the competent Court.

Contested divorce in Italy: in this case, no agreement on the conditions of divorce exists between the spouses and each of them can file the recourse for divorce with the competent Court.

The grounds entitling the spouses to require the Italian divorce are expressly listed in art.3 Statute 989/1970.

The divorce can be required, by the way of an example, when:

  • The other spouse has been sentenced to life or more than 15 years in prison by a definitive judgment;
  • The spouse has been sentenced for killing the child or trying to kill the other spouse or the child, regardless of the penalty;
  • The foreign spouse got the annulment of the marriage abroad or got married again abroad;
  • In case of judicial separation, when the definitive judgment acquired the authority of a final decision (res judicata).
  • In case of separation by mutual consent, when the separation decree issued by the Court is adopted;

In the last two cases mentioned above, to begin the proceedings for divorce, a three year term from the first hearing of the legal separation proceedings must be expired, as expressly provided by Italian law. Such a term does not accrue in case of separation-in-fact.

In order to declare the dissolution of the marriage, the Court must verify if the requirements provided by law subsist; in particular:

  1. The loss of the material and spiritual communion between the spouses and the impossibility to reconstruct it;
  2. One of the grounds provided by art. 3 Statute no. 898/1970.

The Court must also take into consideration the interests of the children and take any measure required on their exclusive behalf. 

The proceedings for joint divorce are faster as the parties must appear before the Court only at the first hearing for the compulsory attempt to reconcile provided by law.

In case of an Italian judicial divorce, the proceedings can be more complex, considering the disputes that could arise. Also in this case, the parties can ask for a partial judgment declaring the dissolution of the marriage, whereas the proceedings will carry on just on the disputed matters.

When the Italian judgment of divorce is granted, the spouses can get married again and the wife loses her former-husband’s surname. All the legal duties and responsibilities deriving from the marriage are dissolved as well as the legal communion of the goods (if such a dissolution had not been pronounced yet during the proceedings for separation).

The Italian judgment of divorce can also state, inter alia, on:

  • Patrimonial issues and family home;
  • Custody, visitation and support of the children;
  • Maintenance (e.g. alimony).

Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano Lawyers PLLC expressly disclaims all liability based on any information contained in this article.


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