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Separation in Italy: Italian Separation (Italian divorce and divorce in Italy)

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Consensual divorce (consensual separation) timing in Italy | Italian Law Firm | Lawyer

The separation in Italy must take place before the divorce. By means of the legal advice of an Italian Law Firm or of an Italian qualified lawyer, husband and wife can proceed with a mutually agreed proceeding, so that the timing could be a very quick one

In Italy, before requesting the divorce (divorzio), husband (marito) and wife (moglie) must obtain the “legal” separation (separazione): “consensual” separation (separazione consensuale) or “judicial” separation (separazione giudiziale).

If they have reached an agreement, they can start with a consensual proceeding, by means of the legal advice of an Italian Law Firm (Studio Legale) or of an Italian qualified lawyer (Avvocato). In this case, the timing could be a very quick one and the procedure is simplified. Also concerning the divorce, the proceeding is a similar one, please take a look on the dedicated post hereinafter.

For example, pursuant to Italian Law, the following people could file for a separation proceeding:

  • an Italian citizen (cittadino) and a foreign citizen, both resident (residente) not in Italy but abroad;
  • two Italian citizens, both resident not in Italy but abroad;
  • two foreign (straniero) citizens, both resident not in Italy but abroad, who got married in Italy or who have lived in Italy or who decide to choose the Italian Law as the applicable law;
  •  an Italian citizen and a foreign citizen, both resident in Italy;
  • two Italian citizens, both resident in Italy;
  • two foreign citizens, both resident in Italy.

What is the consensual separation in Italy?

The consensual separation, pursuant to Italian Law, is a legal proceeding that rules the end of a marriage (matrimonio) between two spouses who agree to split, obtaining the authorization by the Court to live separately, in a mutual respect.
To be enforceable, the agreement must be homologated (omologato) by the President of the competent Court or undersigned before an Italian qualified lawyer during a specific proceeding called “negoziazione assistita” (advised negotiation) or before a “Ufficiale di Stato Civile” (a public officer).

The consensual separation is much more convenient in comparison with the judicial one, because it is quicker and cheaper and also because it allows the spouses to agree upon personal and patrimonial matters in a way which may be very close to their personal needs. In particular, husband and wife could agree upon how to pay the sum due as alimony (“assegno di mantenimento”) to the economically weaker spouse or about the sum due as child(ren) (figli) custody, upon the assignment of the family house as well as about the sharing of the owned assets (bank accounts, stocks, shares, bonds, real estate assets and other assets).

How the proceeding of consensual separation works pursuant to Italian law, and how it lasts

The consensual separation proceeding before the competent Court (that usually Is determined by the latest mutual residence of both spouses) may last differently, with respect for example to the number of proceedings managed by each Court. Averagely, the scheduling of the hearing (“udienza”) concerning the personal attendance of the spouses is provided for within a period of time included between one and four months since the file of the first deed. During the hearing before the President of the Court, the spouses express their intention to separate and sign a deed (“verbale”) in which are approved and endorsed all the agreed terms and conditions with reference to the personal and patrimonial matters of the spouses as well as about child(ren) support. This deed, after about one or two months (in accordance with the number of proceedings managed by each Court), will be homologated: by means of this action, it is officially declared the status of “separated” which it is transcribed on the register of the respective Municipality.

If it is chosen the proceeding called “negoziazione assistita” (advised negotiation), the parties proceed with the drafting of the agreement at the Law Firm of the Italian qualified lawyer and the proceeding is completed after about twenty days, including the transcription on the register of the Municipality where the wedding took place.
About the proceeding before a “Ufficiale di Stato Civile” (a public officer), the proceeding may last differently, depending on the Municipality of the residence. To this purpose, it would be necessary to contact the competent local offices.

It is worth noting that in no case the separation causes the interruption of the marriage, but it only intervenes on some effects of the marriage: for example, the separation causes the dissolution of the community of property (“comunione dei beni”) and causes also the termination of the duty of fidelity but it does not interrupt the duty of mutual assistance between the spouses.

Even in case of a consensual separation, it is always recommended to be advised by an Italian Law Firm that may have already practiced enough to advise the spouses during the proceeding which brings them to the separation, since the first meetings between the spouses in order to estimate their income and their economic situation, up to the civil proceeding before the Court or to the proceeding called “negoziazione assistita” (advised negotiation).

In accordance with the special needs of any family, it could be useful that the Italian qualified lawyer may work together with other professionals, like for example psychologists, psychotherapists (also expert concerning kids) or mediators, chartered accountants and notaries, whose experience may allow to guarantee an adequate advice also in case the separation may concern international matters.

What documents are necessary to consensually separate in Italy?

  • Copy of the deed of the wedding to be requested to the Municipality where the wedding took place or to the Municipality of residence of the spouses at the date of the wedding;
  • Certificate of “stato di famiglia” and certificate of residence which may be included in the same certificate. Some Courts may accept also a declaration under oath (“autocertificazione”);
  • Copy of the ID card or of the passport and of the fiscal code of both spouses;
  • Declarations of income of the latest three years concerning both spouses.

The certificates can be filed without paying stamp duty, pursuant to Article No. 19 of the Law 74/1987: the certificates filed to the specific purpose of requesting a separation or a divorce are free of any stamp duty, except for some stamp duties which are consequence of the filing of the deeds (the cost is less than one Euro). Many Municipalities release these certificates also online and they are as enforceable as the other ones. These certificates are valid for six months since the respective issue.

Judicial separation in Italy

How to get a divorce (judicial separation) in Italy | Italian Law Firm | Lawyer Italy

Even if the wife (or husband) does not want the separation (divorce), the husband (or wife), with the legal advice by an Italian qualified lawyer or by an Italian Law Firm specialized in Italian family law, can obtain it

In Italy, before filing for the divorce (“divorzio”), husband (“marito”) and wife (“moglie”) must obtain the legal separation (“separazione legale”). Even if they cannot find an agreement, it is possible to start a judicial proceeding with the legal advice by an Italian Law Firm (“Studio Legale Italiano”) or by an Italian qualified lawyer (“Avvocato italiano”).

The procedure to comply with in Italy in case the wife does not want to agree on the separation

When the wife (or husband) does not want to agree on the separation, the Italian Law gives to the husband (or wife) the option to proceed anyway filing a deed in Court requesting the judicial separation (“separazione giudiziale”), with the legal advice by an Italian qualified lawyer specialized in Italian family law.

The judicial separation, indeed, is the procedure for the personal separation between the spouses that must be performed in Court in any case when there is no agreement between the spouses about the terms and conditions of the separation, or when one of the two spouses does not want to grant the separation to the other spouse.

After the filing and the notification of the first deed, husband and wife (together with the respective lawyers) are convened by the competent Court (which usually is the one of the latest common residence of the spouses) in order to attend in person to the first hearing before the President of the Court. The President of the Court may take all the necessary and urgent measures in favour of the weaker spouse (from the economic standpoint) and of the children. Later, the civil proceeding continues as an ordinary civil proceeding, which will be concluded by means of a sentence.

In comparison with the consensual separation, which may finish in a few months since the filing of the first deed (even in a few weeks in case of a “negoziazione assisitita” – advised negotiation), the judicial proceeding lasts like an ordinary civil proceeding. The timing may vary also on the basis of the number of disputes between the spouses, and on the basis on the pieces of evidence which must be evaluated by the Court.

For these reasons, even if the consensual solution should always be preferred, it is important to request a legal advice to an Italian Law Firm specialized in Italian family law that could advise the Client not only from a juridical standpoint but which could also count on a team of multi-disciplinary professionals, who work on various levels (also abroad if necessary), in order to start appropriate investigations which could clarify the economic (“economica”) situation of the spouses and, where requested, could advise about psychological (“psicologici”) matters of the separation, especially the ones where minors are involved.

The Italian Law provides that it is possible to request to the Court to issue a sentence also to declare the separation between the spouses caused by fault (“addebito”) of the spouse who behaved in breach of some of the duties arising out of the marriage, like for example the duty of fidelity, the duty of material and moral assistance (including the maintenance of the spouse and/or of the children) and the duty of living together. This decision entails some economic consequences like for example the termination of maintenance (“mantenimento”) rights and of inheritance rights (“diritti successori”). It does not exist, instead, the possibility of requesting that the divorce is declared as caused by the fault of one of the spouses. For further pieces of information, please see hereinafter the article named “Judicial separation”.

It is easy to understand, however, that in these cases the legal advice by an Italian qualified lawyer specialized in family law (“diritto di famiglia”) could be essential. Indeed, there are many matters to be evaluated, not only the personal and economic ones, but also concerning the civil processual proceeding that shall be taken into consideration by the Court for the decision.
It is recommended to be advised by an Italian qualified lawyer also in case of a consensual divorce (“divorzio consensuale”).

Wife maintenance: separation (divorce) in Italy | Italian Law Firm | Lawyer Italy

In Italy, wife maintenance in case of separation and divorce is calculated on the basis of the economic situation of both spouses. The legal advice of an Italian Law Firm or of an Italian qualified lawyer is appropriate.

The sum due to the wife as alimony (“assegno di mantenimento”) may vary in case of separation or in case of divorce. In this article, the sum due to the wife as alimony in case of a separation is examined, while concerning the sum due to the wife as alimony in case of a divorce please take a look at our article named: “Divorce maintenance in Italy | Italian Law Firm | Lawyer Italy”.

Before examining the matter in depth, it may be useful to indicate who, for example, may request the separation pursuant to Italian Law:

  • an Italian citizen (“Cittadino”) and a foreign citizen both resident (“residente”) not in Italy but abroad;
  • two Italian citizens, both resident not in Italy but abroad;
  • two foreign (“straniero”) citizens, both resident not in Italy but abroad, who got married in Italy or have lived in Italy or who decide to choose the Italian Law as the applicable law;
  • an Italian citizen and a foreign citizen, both resident in Italy;
  • two Italian citizens, both resident in Italy;
  • two foreign citizens, both resident in Italy.

Calculation of the sum and requirements for alimony in case of a separation in Italy

If husband and wife cannot find an agreement and need to proceed with a judicial separation, the wife who manages to prove to be the weaker spouse from the economic standpoint could request a sum due as alimony. The sum to be paid is calculated on the basis of the economic and patrimonial situation (“stato patrimoniale”) of both spouses.

Pursuant to Italian Law, the separation does not abolish the duty of mutual material assistance between the spouses, because it does not terminate the conjugal tie: the separation only weakens this tie. When husband and wife are separated, this duty entails the option of requesting a sum due as alimony in favor of the weaker spouse from the economic standpoint.

The due sum, in case the applicant has the requirements provided for under the law hereinafter indicated, could be a recurring payment (“periodico”) or could be paid in accordance with terms and conditions to be agreed by the spouses. In order to receive the sum due as alimony, the spouse must file duly request during the judicial separation proceeding and it is essential that the separation is not caused by applicant’s fault.
When the wife requests a sum due as alimony, the Court shall ascertain that she does not earn an income which may allow her to maintain the same standard of living (“tenore di vita”) that she enjoyed during the marriage (not only effective income but also possible income) or, at least, that she may not obtain an income due to objective reasons.

Finally, the economic discrepancy between husband and wife must be proven (i.e. it needs to be proven that the wife earns a lower income compared to the one earned by the husband). This analysis does not concern only income (“redditi”) arising out of labor agreements but, in general, all the patrimonial assets owned by both spouses (real estate assets – “proprietà immobiliari” – stocks, shares –“azioni” –, bonds – “obbligazioni” – money –“denaro” – and so on) shall be taken into consideration. Also, the actual contribution bestowed by every spouse to the family life must be taken into consideration.

A description (the more accurate it is, the better it is of course) concerning all the patrimonial assets owned by the spouses and of all the economic activities of the spouses which could be material shall allow the Court to indicate, in an objective way, the amount of the sum that may be due to the wife as alimony. That’s why it is very important to request a legal advice to a Law Firm that could advise the Client not only from a juridical standpoint but could also count on a team of multi-disciplinary professionals, who work on various levels (also abroad if necessary), in order to start appropriate investigations which could clarify the economic situation of husband and wife.

It is easy to understand, however, that in these cases the legal advice by an Italian qualified lawyer specialized in family law (“diritto di famiglia”) could be essential. Indeed, there are many matters to be evaluated, not only the personal and economic ones, but also concerning the civil processual proceeding that shall be taken into consideration by the Court for the decision.
It is recommended to be advised by an Italian qualified lawyer also in case of a divorce (“divorzio”) or in case of a consensual or judicial separation (“separazione consensuale o giudiziale”).

Maintenance wife: Lump-sum payment – Italian Law Firm – Italy

In Italy, the payment as lump-sum is recommended in case of a divorce and not in case of a separation because it may be modified. It is appropriate the legal advice by an Italian Law Firm or by an Italian qualified lawyer.

The sum due to the wife as alimony (“assegno di mantenimento”) may vary in case of a separation or of a divorce. In both cases, it is possible to choose the lump-sum payment solution, but in case of a separation it is less recommended.

For further pieces of information about the sum due as alimony in case of a divorce, please see the “Divorce maintenance in Italy – Italian Law Firm – Italy” article, while regarding the sum due as alimony during the separation in general, please see the “Divorce (separation)” in Italy – Italian Law Firm – Italy” article.

What are the possible agreements about maintenance during the separation in Italy

The separation in Italy has generally a temporary status. Although no spouses are forced to divorce, generally speaking husband and wife request the divorce in order to be able to request the termination of the marriage. To this purpose, the matters concerning patrimonial assets must be carefully evaluated by the spouses before reaching an agreement or starting a legal proceeding before the competent Court. The sum due as alimony is a matter about which the spouses discuss more frequently, and it could be paid by regular instalment (“periodica”) or as a lump-sum payment (“in un’unica soluzione”).

The spouses can also agree upon the transfer of one or more assets of particular value as well as about the transfer of the ownership (“passaggio di proprietà”) of a specific asset of particular value. In particular, it can be provided that one spouse shall pay for the mortgage (“mutuo”) of the house or for the rent (“affitto”), as well as for some specific expenses (utilities, general expenses, expenses for the car and so on).

Features and risks of the sum due as alimony paid as a lump-sum, pursuant to the Italian Law

The payment of the sum due as alimony as a lump-sum payment is ruled by the Italian Law concerning the divorce, because in the past it could have been provided for only in the procedures of termination of the marriage by mutually agreed request. Recently, also during procedures of consensual separation, some spouses have reached an agreement concerning the payment of a lump-sum, hoping to solve in this way definitively all the requests regarding the maintenance of the economically weaker spouse.
An agreement like this needs to be controlled in advance by the Court that homologates the consensual separation, and the agreement is admitted only if it is complaint with the verification by the Court.

However, it is worth specifying that, while during the divorce proceeding the lump-sum payment due as alimony is definitive and unchangeable, during the separation proceeding the beneficiary spouse could request an amendment of terms and conditions of the separation, in case of modifications concerning the economic situation of at least one spouse, and therefore the applicant spouse could obtain a renegotiation of the agreements during the divorce proceeding.

Therefore, the spouses must be adequately advised by an Italian qualified lawyer about their convenience concerning a choice like this one, because they could wrongly think about defining irrevocably their economic situation like that. An accurate investigation shall be carried out about their economic situation in order to fully understand the actual convenience of a lump-sum payment, so not to find themselves unprepared in the future.

Lump-sum payment and judicial separation

The provision of a lump-sum payment of the sum due as alimony cannot be provided under Italian Law during a judicial separation because it must arise out of an agreement between the spouses and, therefore, could arise out only of a consensual procedure.

Separation procedure: maintenance in Italy – Italian Law Firm – Lawyer Italy

In Italy, before requesting the divorce, husband and wife must obtain the legal separation with the legal advice of an Italian Law Firm or of an Italian qualified lawyer. By means of this procedure, it is possible to request for a maintenance.

What is the sum due as alimony in Italy

The sum due to the other separated spouse (“coniuge”) (Husband / wife) who is economically weaker is a form of material assistance between husband and wife. Pursuant to Italian Law, indeed, the separation does not terminate the marriage, but it only limits its effects. If the applicant spouse is endowed with some requirements (“requisiti”), the calculation (“calcolo”) of the sum due as alimony is done on the basis of the economic situation of the spouses.

What are the necessary requirements to obtain the sum due as alimony pursuant to Italian Law

In order to be able to receive the sum due as alimony, except in case of occurred agreements between the spouses, the applicant spouse needs to file proper request during the judicial separation proceeding, and the separation shall not be caused by fault of the applicant spouse. The Court needs to verify that the applicant spouse who requests the alimony does not own incomes and/or assets which allow him/her to maintain herself/himself on the same standard of living occurred during the marriage or, at least, that he/she cannot raise these incomes/assets due to objective reasons.

Finally, the unbalance between the economic situation of the two spouses must be ascertained, i.e. it needs to be proven that the applicant spouse has a lower income (“reddito”) compared to the other spouse, who should pay the alimony. This verification does not concern only incomes arising out of labour agreements, but also generally speaking the whole economic situation of both spouses (real estate assets, shares, quota, stockholdings, bonds, money and so on). Also, the actual contribution given by each spouse to the family life must be taken into consideration.

How to calculate the sum due as alimony in Italy

A mathematic rule to apply to calculate the sum due as alimony does not exist. Italian Law only provides that the Court shall decide about it as well as about its amount. However, calculation role models and precedent cases exist, and these models and cases provide for directives which may be applied by the Court, but to whom the Court is not forced to adhere.
That is why, in the investigating phase of the proceeding, a comparison between the two economic situations of the spouses is essential. This is the only way to understand if there is a real difference between the economic situations of both spouses.
The description of the economic situations of the spouses and of all the activities economically material for the spouses will allow the Court to estimate from an objective standpoint the amount of the sum due as alimony which shall be due to the economically weaker spouse.
That is why it is important to request legal advice to an Italian Law Firm that could advise the client not only from a legal standpoint, but that could also count on a team made by multidisciplinary professionals, who work on different levels, also abroad if necessary, in order to carry out adequate investigations which could clarify the actual economic situations of husband and wife.

The importance in Italy of the possible standard of living

The possible standard of living of the spouses is the actual economic situation of the spouses and it is estimated on the basis of the incomes and of the assets owned by each spouse. Husband and wife, indeed, even if they have a comfortable economic situation, may decide to have a modest standard of living, oriented to save money. In these cases, the sum due as alimony must be estimated on the basis of the actual economic situations of the spouses and not on the basis of their standard of living voluntarily modest.

It is easy to understand, however, that in these cases the legal advice by an Italian qualified lawyer specialized in family law (“diritto di famiglia”) could be essential. Indeed, there are many matters to be evaluated, not only the personal and economic ones, but also concerning the civil processual proceeding that shall be taken into consideration by the Court for the decision.

Separation with fault in Italy – Leaving the family and the house – Italian Law Firm – Lawyer Italy

In Italy, only a separation can be declared caused with fault by one spouse if the leaving of the marital home (“tetto coniugale”) happens. This possibility does not exist in case of a divorce. To obtain legal advice, it is necessary to appoint an Italian Law Firm or an Italian qualified lawyer.

Why the cohabitation is important pursuant to Italian Law

Cohabitation between spouses is one of the main duties in the marriage provided for under Italian Law. Leaving with no reason the marital home, even if it is not considered as a crime anymore by itself, can be the reason to declare that the separation was caused by the fault of a spouse, if it is proven that the leaving is the reason that triggered the crisis and the main reason which led the spouse to separate due to the intolerability of the cohabitation.

When Italian Law justifies the leaving of the marital home

The leaving of the marital home does not allow to declare the fault by one spouse if it is not the reason of the intolerability of the cohabitation. The spouse who left the marital home must prove that the decision has been made because the sentimental relationship was already over. On the contrary, the separation would not be directly caused by the violation of the conjugal duty.
Pursuant to Italian Law, the request of declaration of the fault by one spouse must be expressly filed by the other spouse by means of the first deed of the separation proceeding. Husband or wife must be advised by an Italian qualified lawyer or by an Italian Law Firm.

The Italian Court shall estimate the global situation, taking into consideration what follows:
– the behaviour of the spouse, who violated the conjugal duties;
– the behaviour of the applicant spouse;
. the general situation between the spouses which occurred during the marriage.

For example, some requests concerning the fault by the other spouse for the leaving of the marital house have been rejected on the basis of the following reasons: that the spouse left the marital home due to occurred abuses, due to the lack of sexual intercourses, due to the occurred incommunicability, due to the invasive presence of the mother-in-law. In these cases, the Court has declared that the leaving of the marital home had been caused by an unbearable situation for the spouse and by the crisis of the matrimonial union already occurred.

The violation of the duties of assistance in Italy

In Italy, if the spouse leaves the marital home for no reasons and becomes untraceable or terminates every relationship with the other spouse and with the children, could be charged with the indictment of violation of duties of familiar assistance, sanctioned up to one year of prison. In order to be a crime, the spouse and the children must be left without the basic resources necessary for their sustenance and without what they need to satisfy their primary needs.
In these cases, therefore, it is possible from one side to start the civil proceeding concerning the separation caused by fault by the leaving spouse and, on the other side, to start a criminal procedure regarding the leaving spouse who has not fulfilled with the familiar duties.

It is easy to understand, however, that in these cases the legal advice by an Italian qualified lawyer specialized in family law (“diritto di famiglia”) could be essential. Indeed, there are many matters to be evaluated, not only the personal and economic ones, but also concerning the civil processual proceeding that shall be taken into consideration by the Court for the decision.

Separation with fault in Italy – Unfaithfulness or Adultery – Italian Law Firm – Lawyer Italy

In Italy, only a separation can be declared caused with fault by one spouse if adultery happens. This possibility does not exist in case of a divorce. To obtain legal advice, it is necessary to appoint an Italian Law Firm or an Italian qualified lawyer.

Adultery is a violation of the duty of fidelity between husband (“marito”) and wife (“moglie”). During the separation proceedings, pursuant to Italian Law, adultery is a reason that often grounds a decision of separation caused by fault of the unfaithful spouse. But it is not correct to assume that in any case of adultery the separation is automatically declared caused with fault by one spouse.
The Italian Court can accept the request of separation caused with fault by one spouse only after having verified some facts and requirements. That is why it is always useful to request the legal advice by an Italian qualified lawyer or by an Italian Law Firm that can evaluate, on every single case, the possible existence of the necessary requirements in order to request the separation with fault by one spouse and in order to evaluate the evidence that needs to be collected and filed to the Court. Without an appropriate investigative procedure, a civil proceeding requesting a separation caused by fault of the unfaithful spouse would be very difficult, that is why it is important to ascertain to obtain the necessary pieces of evidence legally, in order to be able to file these pieces of evidence to the Court during the separation proceeding.

The value of unfaithfulness in the separation proceedings in Italy

In Italy, when a spouse is willing to request a decision of separation caused by fault of the unfaithful spouse, the pieces of evidence concerning the adultery must be collected and filed to Court pursuant to Italian Law, but the Court also needs to evaluate concretely, on a case-by-case study, in order to understand if the necessary requirements to accept the request are or not in force and effect.

The necessary assumption for deciding upon a separation with fault by the unfaithful spouse is that it needs to be proved that the unbearable situation of the cohabitation is caused directly by the adultery: it needs to be proven before the competent Court that the unfaithfulness has been the main reason of the conjugal crisis, and consequently of the spouses’ intention to separate. Instead, if the extra-conjugal relationship starts after the crisis has already appeared in spouses’ relationship, simply because love was already over or due to any incompatibilities, it would be very difficult to obtain the decision of separation caused by fault of one spouse.

Moreover, the Court must always take into consideration the behaviour of both spouses, because the behaviour of one spouse must be considered on the basis of what the other one has done.

To obtain a decision upon a separation with fault of the unfaithful spouse, for example, it may be needed to prove that the adultery has gone beyond the private life of the spouses, in cases where it became public in such a way to cause humiliation to the betrayed spouse or to constitute a scandal which could ruin the betrayed spouse’s reputation.

Could the platonic unfaithfulness cause of separation with fault by one spouse pursuant to the Italian Law?

In order to request a decision upon a separation with fault of the unfaithful spouse, it is not necessary that an extra-conjugal sexual relation has occurred, therefore – as a principle – also a platonic (“platonico”) extra-conjugal relation may entail the acceptance of the request. Indeed, in order to be able to talk about a violation of the duty of faithfulness, it can be enough to prove that one spouse has behaved in such a way that caused a damage to the honour and to the reputation of the other spouse, with no specific need of a physical sexual intercourse. It is however necessary that the behaviour is quite serious or that it causes some serious effects. For example, let’s think about what happens when, on his Facebook page, the husband starts chatting with other girls in the group, writing strange words, sending emoticons and likes, and so on, posting pictures and talking proudly – and not too quietly – in public about having already had many sentimental relationships. To this respect, in a modern life – where social networks have an important role on our lives – also a platonic betrayal via virtual conversations and online chat may cause a separation with fault in case, for example, it becomes known to the public and it involves the married spouse via her/his own social life through internet.

It is easy to understand, however, that in these cases the legal advice by an Italian qualified lawyer specialized in family law (“diritto di famiglia”) could be essential. Indeed, there are many matters to be evaluated, not only the personal and economic ones, but also concerning the civil processual proceeding that shall be taken into consideration by the Court for the decision.

Separation with fault in Italy – Mobbing or Abuses – Italian Law Firm – Lawyer Italy

In Italy, only a separation (“separazione”) can be caused by fault in case, for example, of mobbing or abuses (“maltrattamenti”). This option does not exist in case of a divorce. In order to be advised about it, it is necessary to appoint an Italian qualified lawyer (“Avvocato Italiano”) or an Italian Law Firm (“Studio Legale Italiano”).

It may be useful to indicate, for example, who could request the separation caused by fault (“addebito”) pursuant to Italian Law:

  • an Italian citizen (“Cittadino”) and a foreign citizen both resident (“residente”) not in Italy but abroad;
  • two Italian citizens, both resident not in Italy but abroad;
  • two foreign (“straniero”) citizens, both resident not in Italy but abroad, who got married in Italy or have lived in Italy or who decide to choose the Italian Law as the applicable law;
  • an Italian citizen and a foreign citizen, both resident in Italy;
  • two Italian citizens, both resident in Italy;
  • two foreign citizens, both resident in Italy.

What familiar mobbing means in Italy

If abuses or familiar mobbing, committed by one of the two spouses (“moglie” “marito”), are the reasons of the familiar crisis, in the separation proceeding it is possible to request a declaration concerning the fact that the termination of the marriage has been caused by fault of the husband.
The principle of mobbing is usually applied concerning labour issues, but lately in Italy also the principle of mobbing in family life has been recognized to describe a situation of physical or psychological abuses to the detriment of the spouse or of the children, situation which is recurring in the family life.
When a person is victim of these serious abuses, first of all it is necessary to act immediately to protect his/her own health, turning to the competent Authority. In a second period, it is necessary to appoint an Italian qualified lawyer or an Italian Law Firm in order to agree about the “judiciary tool” which may be the most appropriate for the case at stake. Generally speaking, it could be filed a request before the competent Court in order to obtain an immediate protection injunction, like the moving away of a spouse from the family house. Our Law Firm can provide our clients with a multi-disciplinary advice, which may allow them to deal with their delicate concrete issues in the best possible way, taking into consideration that these concrete issues are often also very dangerous for the family tie. That is why we may provide our clients with our expertise concerning not only our experience in the legal field to start and challenge legal proceedings, but also concerning the professionality of psychologists (“psicologi”) and psychotherapeutics (“psicoterapeuti”), also specialized in minors, and of familiar mediators (“mediatori familiari”), that may try to develop a recover between the involved parties.

When mobbing becomes the reason of a separation declared by fault of one spouse, pursuant to Italian Law

With reference to the separation proceeding, an oppressive behaviour within the family life, even if it does not give rise to violent episodes, may be considered as the reason of a separation declared by fault of one spouse, in case it is proven that the behaviour of the spouse is the reason that makes the cohabitation unbearable.
Examples of facts which have been considered by the Italian Courts as reason to cause a familiar mobbing and which caused a separation declared by fault of one spouse are the following ones: insulting esteems to detriment to the other spouse, in public or in presence of friends, continuous and systematic incitements to convince the other spouse to leave the family house, insults occurred also in presence of other people.
Essentially, the Italian Courts aim to consider as material all those pathologic situations where the victim finds her/himself in a position of stable inferiority in comparison with the other spouse, who carries out harassing, burdening and intimidatory actions, with the specific purpose of creating an unfavourable life condition.
In some cases, these facts may be relevant for the sentence of separation of the spouses, even if the victim of these facts is a child.
Therefore, the mobbing can surely be considered as a cause of the separation in case the burdening facts are not the consequence of a conjugal crisis already occurred.

Physical violence may be a reason of a separation declared by fault in Italy

About physical violence (“violenza fisica”), the situation is partially different.
The abuse, in this case, can be reason of a separation declared by fault even if it occurred only once and not in a recurring way, and the abuse relieves the Court from comparing the behaviour of the spouse who is victim of the abuse.
During a separation proceeding, and in particular in case of a request of declaration of fault, indeed, the Court must examine the evidence, evaluating the behaviours by both spouses in order to understand if a certain action has not been “provoked” by a violation of the conjugal duties by the other party.
In case of a physical abuse, instead, it is considered that this comparison can be excluded. Any aggression of the person and of his/her fundamental rights, like his/her psychophysics safety and integrity, oversteps the minimum threshold of respect and solidarity due to husband and wife, and cannot find any justification in allegedly retaliations or reactions to behaviours carried out by the other spouse. Practically, before an Italian Court, the spouse who commits physical violence cannot justify him/herself declaring that he/she had reacted to incitements of the other spouse or, for example, to an adultery.

Italian qualified lawyer specialized in family law, separation and divorce

It is easy to understand that in these cases the legal advice by an Italian qualified lawyer specialized in family law (“diritto di famiglia”) could be essential. Indeed, there are many matters to be evaluated, not only the personal and economic ones, but also concerning the civil processual proceeding that shall be taken into consideration by the Court for the decision.

It is recommended to be advised by an Italian qualified lawyer both in case of a divorce (“divorzio”) or in case of a separation (“separazione”), both consensual (“consensuale”) and judicial (“giudiziale”).

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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