24 August, 2017

Differences between consensual divorce and judicial divorce in Italy – Italian qualified lawyer specialized in family law

In Italy, the divorce provides, as a consequence, for the dissolution of marriage and the termination of its civil effects. Husband and wife can choose between the consensual (consensuale) procedure and the judicial (giudiziale) procedure. Between the two kinds of procedure there is a big difference, that has to be evaluated with the legal advice of an Italian qualified lawyer specialized in family law.

 

Who, for example, could file for divorce pursuant to the Italian law:

  • An Italian citizen and a foreign citizen, both residing not in Italy but abroad;
  • Two Italian citizens, both residing not in Italy but abroad;
  • Two foreign citizens, residing not in Italy but abroad and who got married in Italy or had lived in Italy or had decided to apply the Italian law;
  • An Italian citizen and a foreign citizen, both residing in Italy;
  • Two Italian citizens, both residing in Italy;
  • Two foreign citizens, both residing in Italy.

 

It has to be previously indicated that in Italy, before being able to file for divorce, in the vast majority of cases the spouses must be legally separated since at least six months (sei mesi) (in case of a personal separation) or at least one year (un anno) (in case of a judicial separation). This short timing has been the consequence of the so-called reform of the “short divorce” (divorzio breve) that has modified the previous minimum term of three years. As said, two kinds of divorce proceedings exist: consensual divorce (to be precise, upon joint request by both spouses) or judicial divorce. The decision has not to be underestimated, as the procedures and the timing to obtain the divorce are different, as different may be the possible consequences on the spouses and on their children, if any.

Consensual divorce upon joint request in Italy

The consensual divorce in Italy is possible if there is an agreement (accordo) between the spouses upon their personal and economic situation. The Italian competent Court, after a presidential hearing where both husband (marito) and wife (moglie) personally attend (with the legal advice of an Italian qualified lawyer, specialized in family law), verifies that the agreed terms and conditions respect – and do not damage – the rights of the two spouses and of their children. By means of the agreement, the spouses will be able to decide upon how to rule the assignment and the placement of their children (figli), upon the right of visit of the parent who does not live with the children, upon the assignment of the family house, upon child support and alimony (if a spouse has this right). The spouses will also agree upon the division of assets (e.g. objects), financial assets (bank accounts, shares, obligations, and so on) as well as they will be able to decide upon transfer of assets (ownership or co-ownership of a house may be transferred from one spouse to the other one).

A decision by the competent Court is not always necessary, as it is now possible to obtain the divorce also by means of the assisted negotiation (negoziazione assistita), with the legal advice of an Italian qualified lawyer specialized in family law, or before a municipality officer called “Ufficiale di Stato Civile”, by means of a previous notice to the Municipality of residence.

The consensual decisions highly reduce the timing and the costs connected to the divorce: it is worth noting that, in case of a divorce by means of a joint request only twenty days may be necessary (assisted negotiation with an Italian qualified lawyer or before the Ufficiale di Stato Civile), in comparison with the three-four months necessary for a request filed to the competent Court.

 

Judicial divorce in Italy

When the spouses cannot find an agreement, the judicial divorce (divorzio giudiziale) must be chosen. The right to request the divorce is recognized to every spouse. With the legal advice of an Italian qualified lawyer specialized in family law, only one spouse must file the request for divorce before the competent Italian Court. Differently to what happens with the consensual proceeding, therefore, the judicial proceeding must compulsory be carried out before the competent Court and it is ruled by means of a sentence issued only at the end of a real judicial proceeding.

Also in this case, a preliminary hearing is provided, and at the end of this hearing the competent Court issues a decision (ordinanza) which rules, until the final sentence, the economical and the non-economical between the spouses, as well as all decisions connected to the children (e.g. assignment and placement of the children, right of visit and maintenance and so on). During this first part of the proceeding, if requested by at least one spouse, a partial sentence (sentenza parziale) can be issued, so to rule immediately upon the dissolution of marriage and also to rule upon agreed matters, if any.

The proceeding goes on before the Instructor Judge (Giudice Istruttore), who must evaluate every burden of proof (prove). After the end of the probative phase of the proceeding, the three Judges of the competent Court will jointly decide upon the matters at stake and consequently shall issue the respective final sentence. These necessary steps provided for under the judicial divorce make the proceeding a much longer one in comparison with the consensual one: averagely, the procedure may last at least one/two years and, on the basis of the probative activities to be carried out, the timing could even become a longer one. It is worth noting that the parties must personally attend only the first hearing, while further they will be legally represented by their respective lawyer(s) unless the Court may decide to convene the parties personally for extraordinary reasons. This is very important, especially if one of the spouses (or both) may reside abroad: no high expenses will be borne as well as “sacrifices”, due to continual movements.

It is easy to understand, therefore, that in these cases the legal advice by an Italian qualified lawyer, specialized in family law, is essential. Indeed, there are many aspects to be evaluated, not only economic and personal ones, but also the ones connected to the proceeding(s) and to the probative part of these proceedings, that will be taken into consideration by the competent Court before prior to the issuance of the respective decision.

It is highly recommended to be advised by an Italian qualified lawyer also in case of a consensual divorce. If the divorce proceeding started as a judicial one, in case the spouses would find an agreement during the proceeding they will be able to file to the competent Court a request for a changing of the proceeding (conversione del rito) from the judicial one to the consensual one. The competent Court will check and control the occurred agreement and consequently will turn the proceeding into a consensual one and finally will issue the sentence.

Each spouse has therefore always the right to file for a divorce also in case the other spouse does not agree upon it.

Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.


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