28 July, 2017

Judicial separation: how the separation legal proceeding is regulated under the Italian law in case of no agreement – Judicial separation with an advice by an Italian qualified lawyer specialized in family law

In Italy it is not provided that a marriage can immediately terminate by means of a divorce: it exists a juridical institution called “personal separation of the spouses” which weakens the marriage duties without stopping them at all. When there is no agreement between husband and wife, they have to file before the competent Italian Court a request of a judicial separation proceeding, with the legal advice of an Italian qualified lawyer. If the two married people want to divorce, they must previously remain separated for at least six months if the separation (separazione) occurred consensually, at least one year if the separation occurred during a judicial separation proceeding.

 

Who, for example, would like to file for a separation 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.

 

When a marriage is in crisis, a short or a long one, trying to keep together all the pieces of it sometimes it’s not enough and husband and wife may decide together to agree upon a separation, so to terminate a familiar situation of continuous conflict, situation which may weigh a lot not only on spouses but also on children, not guilty victims of conflicts between adults.

 

In some cases, the practical or economical requests are the ones, which may restrain the final decision. Let’s think about a wife, housewife, economically dependent to the husband, who could be afraid of the possibility of losing the economic stability of her and of the children, well knowing that the husband would in any way obstruct the separation, threatening not to give money to her anymore.

 

If an agreement (accordo) with the spouse is not possible, the only choice is going on by means of a judicial proceeding before the competent Court, usually the one of the latest common residence of the spouses or the one where resides the defendant (whatever Court located in Italy may be competent if both spouses reside abroad or the Court of the place where the plaintiff resides if the other spouse is residing abroad or is not reachable). In this case it has to be advised by an Italian qualified lawyer, specialized in family law.

 

The judicial separation legal proceeding

 

After filing the appeal (ricorso), in which the possible existence of children must be indicated, husband and wife, together with their respective lawyer(s), must attend the first hearing before the President of the Court. The President shall try to find a conciliation (conciliazione) and, if the conciliation fails, shall listen to both spouses setting forth the urgent and temporary provisions in order to regulate the familiar situation until the separation sentence deciding upon, for example, the assignment of the family house and the possible alimony (assegno) and child support. At that time, the judiciary proceeding shall start and the timing could be a long one. All decisions undertaken by the competent Court are instantly in full force and effect, so that – for example – the obligation of paying alimony starts immediately on the obliged spouse.

 

The provisions may be appealed (reclamati) before the Court of Appeal for evaluation errors done by the President of the Court, but in the meantime, they continue to have full force and effect.

 

We may therefore affirm that the wife could act quite calmly because, if she is afraid of a long timing of the legal proceeding to obtain the separation, finding herself in a total economic dependence to her husband, she may rely on urgent and temporary provisions sentenced during the first hearing and instantly in full force and effect.

 

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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