Out-of-Court separation in Italy / Assisted negotiation with an Italian qualified lawyer, specialized in family law

Since 2014 in Italy a procedure has been introduced: the “assisted negotiation” (negoziazione assistita). It is an innovative procedure, which allows to the couples, also to the foreigner ones, who would file for separation (separazione), to be able to proceed filing for a separation also outside the Courts of Justice, with the legal advice of an Italian qualified lawyer specialized in family law. The procedure is applicable also concerning a case of divorce (divorzio).

Who, for example, could file for the separation or divorce 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.

The convenience of this new procedure consists in its speediness (a separation can be obtained in one month instead of the average four-five months of a legal proceeding before an Italian Court) and in its low costs.

Who decides to separate by means of a consensual agreement, today has at his/her disposal two new alternative options in addition to the classic judicial one: the assisted negotiation with the legal advice of Italian qualified lawyers or the declaration before an Italian Public Officer (Ufficiale di Stato Civile), like for example the Mayor (Sindaco). Both procedures allow the couple to avoid having to go to the Court and also to reduce the necessary waiting period in comparison with the judiciary practice.

The assisted negotiation in Italy

The assisted negotiation consists in an agreement undersigned by the spouses (the so-called “negotiation agreement” – convenzione di negoziazione) by means of which the couple who would like to separate (separarsi), assisted by its Italian qualified lawyers specialized in family law, can agree both upon the economic matters (like for example the use of the family house or the provision of alimony / child support) and upon the matters connected to the placement of the children. As soon as the negotiation agreement is finally drafted and executed, the lawyers must authenticate the signatures, file the document to the competent public office (Procura della Repubblica) and wait for the security clearance (nulla osta) by the competent Public Officer (Procuratore).

The declaration before an Italian Public Officer (Ufficiale di Stato Civile) in Italy

As an alternative, the spouses can decide to declare their will to separate before an Italian Public Officer (Ufficiale di Stato Civile) of the municipality of residence of one of the two spouses or of the municipality where the deed of marriage has been registered. This second option can be carried out also without turning to the legal advice of a lawyer. However, there are two limitations to take into consideration: this declaration can be chosen only by couples who do not have minor, not self-sufficient or handicapped children and, moreover, it does not provide for the possibility of inserting in the declaration economic provisions, like for example alimony or child support.

In these cases, when husband and wife are foreigners or their respective country of origin is different, it may be necessary to carry out a legal analysis about the applicable laws to the concrete case, also to find the most favourable applicable law. For these reasons, it is appropriate to appoint an Italian qualified lawyer that may advise the client about the comparison between the foreign applicable laws and the Italian applicable law.

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.