To divorce in Italy, it is necessary to proceed through two stages: the separation and the actual divorce. Depending on the procedure chosen for the first step, times may be more or less short for the second one.

Consensual Separation 

Indeed, it is possible that husband and wife, by mutual agreement, decide to get legally separated by agreeing on the conditions that govern the separation. In the consensual separation the spouses ask to appear before the President of the Court to obtain the decree of approval of the separation. Due to the sensitivity of the procedure and the important consequences of patrimonial and personal nature, in some courts, legal assistance is required. 

In the petition should be listed, in addition to those formalities such as the competent Court, the particulars of spouses, the reasons for the separation, whether there are underage children and the related conditions for custody and maintenance. Once the arraignment is scheduled, the spouses shall be both present in person, possibly accompanied by their trusted legal advisor and then ask for a copy of the decree approving the separation. 

From 11 November 2014 it is possible to conclude an assisted negotiation agreement with the assistance of at least one lawyer for each party (Art. 6 Law 162/2014). The Assisted Negotiation is an agreement by which the parties agree to cooperate in good faith and loyalty to amicably settle a dispute through the assistance of qualified lawyers and it could be considered in several subjects although sometimes it could be mandatory.  As far as separation is concerned, the lawgiver can adopt the simplified abovementioned procedure both for the consensual separation and the divorce, as well as for any changes to the agreements. 

By activating the negotiation, there is the peculiar advantage to not involve the judge. Indeed, it will be sufficient the authorization of the competent court, or, in case of underage children (or economically not self-sufficient adults or disabled/handicapped adults) this permission will be available only if the agreement is in the interest of the children. In the event of consensual separation, it is possible to divorce after six months from the approbation of the agreement. 

Judicial separation

When reaching an agreement is impossible, the spouses (or just one of them) can opt for the judicial separation. To activate this procedure is strictly necessary the advice of a qualified lawyer for each party who will lodge an appeal requesting the schedule of a first appearance hearing that must be attended by the parties where a reconciliation is attempted. If the reconciliation is unfeasible, the President of the Court authorizes the spouses to live separately and to take temporary and urgent measures in their interests and their offspring (e.g. the custody and maintenance of children, the assignment of the marital home, any maintenance allowance in favor of the weaker spouse) . In addition, the President of the Court appoints an examining magistrate who will participate in a lawsuit, at the end of which the decree of judicial separation will be issued. In the event of judicial separation, it is possible to divorce after one year from the date of the first separation appearance hearing where the couple has been authorized to live separately. 

Joint Divorce Application

After the shortened period has elapsed (more or less 6-12 months) the couple could divorce using several procedures. Through the joint divorce application, the spouses already separated and in agreement can obtain the civil marriage dissolution or the termination of the civil effects of the religious marriage. Joint divorce can only be filed by spouses who have reached an agreement on all the conditions of divorce (custody of children, marital home assignment, maintenance allowances etc…). Generally, the procedure ends in a single hearing and with the publication of the divorce judgment. On second thought, it is possible not to involve the judge, using the abovementioned alternative dispute resolutions. 

Only if there are no underage children (economically not self-sufficient adults or disabled/handicapped adults) the separated spouses can also choose an even simpler way by signing an agreement before the Registry Office of the Municipality of residence. 

Disputed divorce

The procedure is more complex if the spouses cannot reach an agreement on the conditions of divorce. In this case, a series of hearings are scheduled after which the court will issue the divorce judgment. The Court send the judgment to the Town Hall of the marriage 30 days after the notification, or if the judgment is not served, r six months after its publication. 

It is always advisable, therefore, to try to find an agreement with the former partner, taking into account the most important matters of the marital life such as the children’s growth and their maintenance, avoiding using them as a currency of exchange in the quarrel. It is also appropriate to divide the shared properties as soon as possible so as to prevent that disputes about their management continue for a long time. Alternatively, the agreement may indicate times and methods of use of the shared properties, for instance, by agreeing on which periods of the year the former spouses may use the beach house.

For Further Information Please Contact:

Lawyer Luca Salvi

+390697996050

luca.salvi@ssalex.com