13 August, 2017

What kind of economic agreements are allowed under Italian law regarding the consensual separation – Advice by an Italian qualified lawyer specialized in family law

The Italian law, ruling about the institution of the consensual separation (separazione consensuale), allows to the spouses to enter into economic agreements of different kind. The husband and wife who split, therefore, must be aware of all the options granted under Italian law concerning terms and conditions of the separation, thanks to the advice of an Italian qualified lawyer specialized in family law, also internationally, who may advise the client with respect to a comparison between the foreign applicable law and the Italian law and the respective execution.

Who, for example, could 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.

The Italian law, indeed, does not provide that the marriage can be immediately dissolved by means of divorce: there is an institution, which weakens the matrimonial duties of the spouses and it is called “personal separation of the spouses”. Currently, two married people who want to divorce must previously remain separated for at least six months if the separation (separazione) occurred consensually, at least one year if the separation occurred following a judicial civil proceeding.

Luckily, not every separation is the result of thunderous moments of fight between the spouses.

It often happens that, due to various reasons, the spouses decide consensually to separate, respectfully of the feelings and of the affection that have kept them united until then. In many cases, therefore, husband and wife agree upon terms and conditions of the separation, not only concerning the assignment (affidamento) and concerning the sustenance (mantenimento) of their children, but also with respect to the patrimonial matters. They could indeed agree to resolve all the economic matters defying a lump-sum of money and they could also agree to transfer the ownership of some assets from the husband to the wife.


The consensual separation in Italy


The consensual separation (separazione consensuale) provides for a much shorter proceeding in comparison with the one provided for the judicial separation. After having jointly filed the appeal (ricorso), which contains the agreed terms and conditions, only one Presidential hearing is provided, and during this hearing the President of the Court tries the conciliation (conciliazione). The competent Court is 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).

If the conciliation attempt fails, the legitimacy of the agreements is evaluated and, if the result is positive, these agreements are homologated by the Court.

The Court must evaluate if the terms and conditions agreed by the spouses are legit both in the interest of the children and in the interest of the non-discrimination of the husband and wife and their respective rights. If the agreement does not pass the control of the Court, the two spouses are invited to enter into the appropriate amendments. Husband and wife could decide if complying (or not) with the received pieces of information, but in any case, the Court shall not modify ex officio the separation agreement. The Court can only decide not to homologate the agreement: without the validation (omologazione) of the agreement, the separation shall have no effect.


The transfer of assets and a lump-sum alimony in the Italian separation legal proceeding


In Italy, the pre-nuptial agreements are not allowed yet, but recently, in order to leave more autonomy to the spouses, it is allowed the chance, during the separation proceeding, to agree upon transfer of assets or upon lump-sum alimony, as alternatives to the regular recurring payment of alimony. However, it is worth noting that these agreements may also be not the most “convenient” ones in case of a separation legal proceeding because they would not be unchangeable, like for example the same agreements in a divorce legal proceeding. The lump-sum alimony, indeed, distinguishes itself for being unchangeable and for being able to leave the beneficiary spouse out of all other economic rights.

In the separation legal proceeding, instead, both spouses could at any time proceed with a request of amendment of agreed terms and conditions, in case in the future some material changes may occur.

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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