When two spouses get a separation pursuant to the Italian applicable law, they can improve autonomously their separation agreements, i.e. without turning to the competent Court. Some limits are provided with this option, that’s why it is highly advisable that husband and wife may turn to an Italian qualified lawyer specialized in family law who could explain to them about very important all possible consequences from the economic standpoint provided for under the Italian law as well as of all the possible consequences. It is worth noting that the same regulation is also valid in case of a divorce.
Who, for example, could improve autonomously the agreements issued during the separation proceeding, 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.
Pursuant to Italian law, any delay or lack of payment concerning alimony and/or child support is considered as a serious breach of contract that could be severely sanctioned.
When the parties enter into an ameliorative agreement, they must take into consideration the kind of legal protection to apply.
The effectiveness of the extrajudicial separation agreements in Italy: what happens if the parents modify the agreement(s) without turning again to the competent Italian Court
Let’s analyse the situation from the beginning by means of a concrete example. Husband and wife decide to get a separation. Together they managed to enter into an agreement concerning the economic relationships and to rule the terms and conditions concerning alimony and child support and their agreement has been homologated by the competent Italian Court.
Two years after the separation, the father changes job, attracted by the prospect not only of earning more, but also to be able to have more free time at his disposal. He therefore spontaneously decides to raise the alimony monthly amount that he pays to his wife, in order to provide her with the management of daily expenses. Furthermore, the husband also increases (pursuant to the new amendment of the agreement entered into by husband and wife) the number of weekly visits to the children, who now remain to sleep in husband’s new house also a couple of intra-weekly nights more.
The wife accepts the amendment quite willingly, but after some months, she starts worrying about possible consequences that could arise out of an amendment of the agreement not expressly approved by the competent Italian Court: could the husband all of a sudden stop paying the increased amounts? Could the husband have the right to claim the restitution of what previously paid in excess in comparison with the agreements issued and homologated by the Court?
How to proceed to protect ameliorative agreements in Italy
It has to be clarified that the value of the ameliorative amendments, entered into by the spouses after the homologation of the separation sentence, to the agreements occurred by the spouses during the legal separation proceeding is admitted, provided that these amendments are ameliorative ones. The amendments shall not modify the rights and obligations that shall remain in force also after the separation. In case of ameliorative amendments regarding child support (right of visiting or alimony), any possible amendment may be valid provided that the interest of the minors is not penalized. For example, if the father decides to move abroad and also decides to agree with the wife to visit the children only once per year as a consideration for a raise of the alimony and child support amount, this agreement shall not be valid.
We need to take into consideration that the “new” regulation, not being homologated by the competent Italian Court, has only an unofficial effectiveness. It means that the wife will not have to be afraid of possible request of reimbursement. If, instead, the husband will suddenly fail to respect the new unofficial amendments, the wife will not be able to act by means of an injunction for collecting the new unpaid amounts, because in case of breach of contract only the agreement entered into by the spouses during the legal separation proceeding will be effective. The wife shall proceed, with the legal advice of an Italian qualified lawyer specialized in family law, to file an appeal (ricorso) to request the enforcement of the extrajudicial occurred agreed amendments, so to obtain the official recognition of these amendments in order to be able to request in the future also its enforcement before the competent Italian Court. After having obtained the recognition of these new amendments, the husband shall be obliged to respect also these new duties and, in case of breach of agreement, the wife will be able to ask for the enforcement of these duties also by means of a deed of injunction (precetto) and by means of a foreclosure (pignoramento).
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.