23 August, 2017

How is the separation proceeding in Italy without an agreement between spouses – the judicial separation proceeding

In Italy, a marriage cannot be immediately terminated by means of a divorce: there is a juridical institution called personal separation of the spouses (separazione personale dei coniugi) which attenuates the mutual obligations between spouses without suspends these obligations. When there is no agreement between the spouses, the separation must be filed before the competent Italian Court by means of a judicial separation proceeding started with the legal advice of an Italian qualified lawyer (Avvocato).

If the mixed couple live together and get married in Italy or if the two spouses are Italian but they moved abroad or if husband and wife are both foreigner but they got married in Italy, it is possible that their marriage is governed under Italian law and, consequently, also the governing law in case of a conjugal crisis is the Italian law. In this case, if the two married people would like to get a divorce, they must remain separated for a minimum period equal to at least six months in case the separation has been declared during a consensual proceeding, and at least one year in case the separation has been declared during a judicial proceeding.

When there is a marriage in crisis, whatever the marriage is a short or a long one, trying to “keep the pieces” all together sometimes it is not enough, and quite often the possibility of a separation is the logical consequence of certain situations. Discussions occurring more and more often, sparkled by useless reasons, can create an environmental of constant familiar conflict, which does not only weight on spouses but also on children, innocent victims of disputes between adults.

It would be highly hypocrite not to say that, in some cases, the practical or economic matters prevent the spouses to find a solution. We may think about a housewife, economically dependent on her husband: it would be impossible not to understand the fears that she could feel about losing the financial stability of herself and of her children, knowing that in any case the husband would obstruct in any way the separation and, probably, would try to change her mind threatening not to give her any money anymore.

However, when we go beyond doubts and uncertainties and we understand that an agreement between spouses is not possible, we must go on by means of a judicial proceeding before the competent Court, which usually is the one of the latest common residence of the spouses or the one where the defendant is residing (whatever Italian Court if both spouses reside abroad or the Court located in the place where the plaintiff lives if the other spouse is residing abroad or he/she is unreachable). In this case, the legal advice of an Italian qualified lawyer is compulsory.


The judicial separation proceeding in Italy

As soon as the deed (ricorso) is filed (it has to be indicated the existence of children, if any), husband and wife, with the respective Italian qualified lawyers, must attend the hearing before the President of the Court. The President shall try a conciliation (conciliazione) and, in case of no conciliation, he/she will listen to both spouses and he/she will issue the necessary and urgent decisions that will govern the situation until the separation sentence, deciding also, for example, upon the assignment of the family house and the possible alimony / child support to the benefit of the other spouse and/or of the children. From that point, the ordinary proceeding will begin, and the timing could be a long one. Notwithstanding the usual slow timing of Justice, all decisions issued by the President of the Court are immediately enforceable, therefore the obligation to pay alimony / child support (if any), for example, becomes immediately effective.

The decisions can be appealed (reclamati) before the competent Court of Appeal for any evaluation mistake done by the President of the Court, but in the meantime of the execution of the appeal the decisions keep on being effective and enforceable.

We may therefore affirm that the wife could be able to act quite calmly because, even if she is afraid of facing a long timing of the necessary proceeding to get the separation (finding herself in a situation like being fully economically dependent on her husband, can rely on the necessary and urgent decisions issued during the first hearing and immediately enforceable.

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 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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