Separation and Divorce

Separation and Divorce

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We have more than a decade of experience in the handling of separation and divorce cases. Thus, we are able to assist you and give you professional bespoke advice, whether you intend to obtain separation or divorce from your spouse, or you are already going through such proceedings. So, if you need legal support to protect your rights, contact us and we will get back to you as soon as possible. All communications are treated in the strictest confidence.

Continue reading below to know more about how to pursue separation or divorce in Italy.

Separation

Italian family law requires, with a few exceptions, to pass through the initial phase of the personal separation of the spouses in order to get a divorce. 

In fact, it is a distinct and transient phase which may or may not result in the end of the marital relationship, contrary to divorce which marks the legal termination of the marriage. Indeed, the idea underlying the separation as a first step to be taken before reaching a divorce judgement is the possibility that the crisis between the spouses is only temporary and may result ultimately in a reconciliation. 

There are different forms of separation: 

  • separation de facto (i.e. separazione di fatto): the spouses get separated without any judicial intervention;
  • separation by mutual consent (i.e. separazione consensuale): the spouses submit a separation agreement which must be approved by the judge;
  • judicial separation (i.e. separazione giudiziale): when there is no mutual consent between the spouses, therefore the conditions must be decided by the court. 

Despite being the simplest way to get separated, the separation de facto is the riskiest one from a legal viewpoint since it could lead to unpleasant consequences such as the lack of financial support in favour of the neediest spouse without the possibility of asserting this right in court. Therefore, the safest way is the legal separation in its two forms, the consensual and the judicial one. 

If the crisis between the spouses is ascertained as not recoverable, the legal separation determines the beginning of the period necessary to proceed with the divorce in Italy, which is 6 months in case of mutual separation, 12 months in case of judicial separation. In both cases, the term starts from the first appearance of the spouses before the president of the court. 

It must be pointed out that the legal separation does not affect the marital status of each party, but it has an impact on some obligations deriving from the marriage, such as the obligation of cohabitation and fidelity, which are no longer due. On the contrary, financial support, participation in the family management and the education of the offsprings, if any, are obligations that must be fulfilled during the entire period of separation. 

If the decision to go through marital separation is taken mutually by the spouses, they have to provide the relevant judge with a common request. This is made by way of a separation agreement containing all the conditions, both personal and financial, relating to the separation itself. 

The separation agreement will then be examined as for the reasonableness and compliance with the law of the conditions, with particular regard to the rights of the offsprings, if any. If all is well, the judge approves it by decree (i.e. omologa dell’accordo di separazione). 

Judicial Separation

Whenever spouses do not reach an agreement, judicial separation is to be resorted to. In this very case, the appeal is lodged by one spouse only and the conditions for separation are established upon the judge’s decision at the end of the trial

Have a look here (in Italian) on the website of the Tribunal of Milan to find further information regarding the timing and costs of judicial separation. 

Divorce

The divorce marks the legal dissolution of the marital bond and the cessation of the civil effects of marriage. It is definitive, which means that each party loses their marital status and can re-marry. 

Similarly to separation, there are two viable ways when it comes to getting a divorce:

  • divorce on joint appeal (i.e. divorzio su ricorso congiunto): if there is an agreement between the spouses as for the conditions for the divorce;
  • contentious divorce (i.e. divorzio contenzioso): if no agreement can be reached.

In both cases, in order to obtain a divorce in Italy the request must be based on the fact that at least one of the following situation has occurred:

  • if the spouse has been convicted after the marriage for criminal offences such as the ones to the detriment of the other or of the offsprings, if any; 
  • if the spouse is a foreign national and has re-married or has obtained the annulment of the marriage abroad; 
  • if the marriage has not been consumed;
  • if the spouse has obtained a final judgement of rectification of sex; 
  • if a legal separation has occurred between the spouses, certainly the most common ground for divorce.

When deciding on a request for divorce, which will terminate permanently the marital relationship, the intervention of the judge is far more meaningful and incisive than the one in the legal separation. Indeed, in the case of mutual separation, this is limited to the approval of the separation agreement reached by the spouses.

Divorce Upon Joint Appeal

If the decision to go through the divorce process is taken mutually by the spouses, the request is made by way of a joint appeal before the relevant court. The appeal indicates all the conditions, personal and financial, the parties have agreed in order to settle the dispute. If after assessing the proposed conditions, the judge considers them acceptable, the final divorce judgement is delivered.

Click here (in Italian) to know more about the mutual consent divorce before the court in Milan. 

Contentious Divorce

In the event the controversy between the spouses is such that no agreement can be reached, because one’s asset claims are considered too high by the other or because there are disagreements as for the custody of minors, if any, then the contentious divorce is the only option left. In this very case, one of the spouses addresses the court and files a divorce petition. On the basis of the latter and of the counter-proposals, the judge makes their own evaluations and deliver their judgement to settle the dispute. 

If you wish to know more about the contentious divorce, have a look here on the website of the Tribunal of Milan

The Modification of the Conditions for Separation or Divorce Before the Court

The spouses are granted the possibility to ask, with the agreement of both or unilaterally, for the modification of the conditions for separation or divorce which were established previously. Indeed, it can happen that the situation between the spouses changes and therefore a ratification is necessary. 

The modification of the conditions for separation or divorce is to be requested by way of an appeal before the relevant court and the proceeding end upon the judge’s final decision, which is taken by decree. 

Separation and Divorce: The Procedure Before the Mayor Acting as a Registrar

The spouses may decide to proceed before the mayor of the municipality of residence of one of them or of the municipality where the marriage was celebrated, and reach an agreement for separation, divorce or modification of the conditions. It is important to underline that the value of these agreements is equal to the value of the judicial measures

In case of separation or divorce, once they have received the agreement, the mayor invites the spouses to appear before them for final confirmation. This is done not earlier than 30 days after receipt of the agreement.

The procedure before the mayor is possible only if: 

  • there are no minors, children who suffer from a severe handicap or are financially dependent;
  • the agreement does not contain any acts by which the transfer of patrimonial rights is ordered.

If the relevant municipality in your specific case is the one of Milan, click here to learn how to access the service (then click on “Separations and divorces: the modalities” and afterwards click on “Separations and divorces before the Registrar”).

You can download the relevant form below:

Mediation and Assisted Negotiation

Italian family law provides also for ADRs (i.e. Alternative Dispute Resolutions). That is, procedures which aim at reaching a separation or divorce settlement agreement without any or with minimal intervention by the court. 

In particular, the spouses who intend to get separated or divorced may opt for the mediation or the assisted negotiation. It is important to say that none of them is compulsory; it is up to the parties to decide whether to pass through those procedures first, or not. 

Mediation

The family mediator is a professional third party who intervenes in cases of a marital crisis before, during or after the separation/divorce event.

The goal pursued by the family mediator is to facilitate the dialogue between the conflicting parties, to promote mutual listening and to bring them to reach an agreement especially in relation to children

Assisted Negotiation

The assisted negotiation offers an alternative channel for the resolution of the separation or divorce. It is characterised by the replacement of the activity of the judge with that of two or more lawyers who guarantee the correctness and lawfulness of the negotiation undertaken

The procedure begins either upon the signing of a convention or upon the transmission of an invitation to negotiate, which must contain an indication of the subject matter and the time limit for replying, with the warning that failure to comply will be deemed to be a refusal.

The convention is the agreement by which the parties undertake to cooperate with each other in good faith and fairness, observing the duty of confidentiality, to settle the dispute concerning the termination of the marital relationship. Under penalty of nullity, the agreement must be drawn up in writing, must indicate the deadline – not less than 30 days, nor more than 3 months, extendable by a further 30 days – within which the agreement must be concluded and must always bear the signature of the parties authenticated by their respective lawyers.

Once the agreement has been drawn up (whether or not preceded by an optional invitation to negotiate), the agreement itself can be drafted, indicating the conditions (property or otherwise) for the separation or divorce, as agreed between the spouses at the end of the negotiations opened with the conclusion of the agreement.

The negotiation agreement is then submitted to the public prosecutor of the relevant court within 10 days. The public prosecutor examines it and, if everything is ok and no irregularity is found, authorizes it. 

It is possible for the spouses to opt for the assisted negotiation even in presence of minors, children who suffer from a severe handicap or are financially dependent. In these cases, though, the public prosecutor makes their own evaluations with particular regard to the best interest of the children. If, in the view of the public prosecutor, the agreement does not pursue the best interest of the children, it is transmitted to the relevant president of the court within 5 days. The parties will then appear before him within the next 30 days. 

Once authorised, the negotiation agreement has the same value of the corresponding judicial measures.

Civil Partnerships

Similarly to marriage, civil partnerships can be dissolved following the same procedures but with fewer formalities. 

When both partners agree to dissolve the bond (i.e. scioglimento consensuale dell’unione civile), they can opt for three different ways, according to their needs: 

  • by means of a formalised joint application to the registrar of the municipality of residence: only if the divorce is unconditional, namely there is any accessory agreement related to assets, financial support, etc.
  • by means of a joint appeal before the relevant court: in this case, the conditions for divorce can be regulated in detail;
  • by means of assisted negotiation: again, it is possible to regulate every aspect of the dissolution.

The initial phase of separation is provided by the law also when it comes to the termination of civil partnership, albeit for a shorter period (i.e. 3 months) and with different formalities required. In fact, before being able to formalise the dissolution it is necessary that the partners, together or just one of them go to the registrar of the municipality of residence to express their will to legally end the relationship.

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