Article Written by Calogero Boccadutri
Divorce in Italy can be both simple and quick, if an agreement can be reached with the future ex-spouse. In case of a lack of agreement, the fate of the divorce is decided by lawyers, within the limits of their role and remit, and by the judge.
After law 55/2015 for quick divorces came into effect on May 2015, in order to dissolve a marital partnership in Italy, six or twelve months must pass for mutual and judicial separations respectively.
Separation
To go through a divorce in Italy you must pass through an initial phase of separation. Separation does not bring the marital relationship to an end, but reduces the effects of it.
Above all, the obligation to live together is no longer applicable, you are no longer held to fidelity and the legal sharing of property terminates. Other marital duties also cease.
However, patrimonial obligations and material assistance obligations do exist. Only a subsequent divorce means the break-up of the marriage or the end of the civil effects, and a change in the status.
There are different paths to achieve separation.
When separation occurs by mutual consent, the spouses provide a common request before the President of the Court, in order that they might support their approval. If the agreements are judged to be reasonable for the spouses and appropriate for the offspring, the court can approve them.
When spouses do not agree on the conditions of the separation, judicial or contentious separation can happen.
In the case of no agreement, when living together becomes “intolerable” to carry on with, the request for separation can be presented by one of the two spouses.
This separate path is defined by the “judicial separation code” since the final provision request constitutes the outcome of a contentious civil process: a ruling that arranges for the personal separation of spouses.
In these circumstances you can make a request for a separation charge to the spouse whose “behaviour is contrary to the duties deriving from marriage”. (Art. 151 Codice Civile)
If the spouses do not have this type of understanding, it is up to the Tribunal to make a decision upon all the controversies and to establish the rules of separation. In this case, one would resort to a civil trial.
The court, pending a judgement, can release a provisory sentence that liberates the spouses from the matrimonial path, proceeding with the disagreement only on the aspects relating to property or debt or child custody.
Another way to achieve separation is the assisted negotiation introduced by Decree n. 132/2014, made into the law 162/2014.
The spouses in agreement can bypass the Tribunal and turn directly to the lawyer or state official for the Municipality.
In the absence of dependent children, if an agreement is reached, it would have to be authorised by the public ministry. Within a month, if opposite opinions do not exist, the agreement would be transcribed at the office of the civil state.
If there are underage children who are disabled or severely disabled the agreement must be sent to the public ministry within ten days for approval.
In the absence of underage children or those in need of assistance, spouses can ask to appear by themselves before the Mayor to obtain separation.
A decree that approves separation by mutual consent, or rather the judicial separation agreement, or the assisted negotiation agreement, authorised by the public ministry, or alternatively the signing of the agreement before the Mayor in order for the separation to be valid, are all sufficient.
Reconciliation
Separation is the only way that leads to divorce but it is not a path with no going back. Spouses can be reconciled if and when they want. Reconciliation brings an end to the effects of the separation.
In accordance with article 157, c.c., spouses can bring an end with a mutual agreement to the effects of the separation with an “express declaration”, intimating that it could be made, orally or in writing by means of a public acknowledgement or private writing, of an act received from a notary or registrar.
A more recent jurisprudential orientation has actually concluded that the declaration must submit to “desires of certainty ascribable not just to the interests of the parties, but also to the indisputable publishing reflections recognised by the system to the family institution.”
And so, while not supported by sacramental formulas, this declaration must possess the requisites of a formal acts to make it verifiable at any moment.
Divorce
Once the agreement for a divorce has been announced the marital bond is completely dissolved.
This produces effects from the civil point of view, given that the spouses primarily change their status, and can now re-marry. The wife must give up the husband’s surname, unless the judge allows them to keep it.
From an inheritance point of view, the right of one to succeed the other is lost. Depending on the property situation, one of the two spouses should give to the other a periodic “divorce allowance”.
If the parties reach an agreement it can be substituted with an allowance given to one solution subject to the consent of the court that is to make sure that the amount is enough.
Furthermore, ownership of the house, of the property and of other possessions have to be decided.
Divorce also includes a definitive decision on the custody of potential children, but normally the one that is established is ratified during the separation, unless the conditions have changed.
In case of “holy marriage with civil recognition”, honoured in a church and transcribed in the registers of the marital record of the Municipality, the civil effects cease but to terminate the religious path a pronouncement of annulment from the Regional Ecclesiastic Court or Sacred Rota is needed.
Exceptions
It is possible to get a divorce in Italy not only after a separation but also in other exceptional cases:
If the marriage was not consummated
If one of the spouses committed a very serious crime
If one of the spouses legally changed their gender
If one of the spouses is a foreign citizen and has got the divorce/annulment abroad, or has remarried.
Tfr and The Ex-Spouse’s Pension
The spouse that is the main child-care provider has the right, if they have not remarried, to a percentage of the indemnity of severance collected by the other spouse to the act of cessation of the employment relationship, even if brought about and after the ruling.
In case of the death of the former spouse, in the absence of another marriage, the spouse that until now has received the maintenance allowance (not having remarried on their part), will have the right to the widow’s pension, as long as the employment relationship from which the marital compensation originates comes before the settlement for a divorce in Italy.
If in any case there is a surviving spouse with the requirements for the widow’s pension, the court would have to establish, based on the duration of the marriage as well, and the extent of the need, the amount to be handed out.
The separated spouse has the right to the widow’s allowance unless the separation has already been charged to them and that the court has not recognised their right to receive the allowance.
Custody of the Children
In the presence of children, usually the matters related to their custody are discussed within the separation or divorce proceeding.
The last reform of shared custody has set out that for the good of the children, the best solution is that they be entrusted to both parents. The so-called “shared custody” grants parents an equal role in the upbringing of their children, even if they don’t all live under the same roof, the child will be resident at the house of one of the two parents.
It is always possible that sole custody be decided in some exceptional cases.
The parent who looks after the children for the most amount of time tends to be granted the family house.
Modifying the Conditions for Separation or Divorce
The conditions established in the place of separation and divorce can always be modified.
It can happen that the situation of the ex spouses or the conditions of the children’s custody changes and that this should necessarily be ratified in court.
