Fault-based separation in Italy: meaning and consequences

A separation in Italy can be requested grounded as a fault-based separation – husband’s (marito) or wife’s (moglie) fault. The decision has a precise meaning because it allows to identify the spouse, whose behaviour was in breach of some obligations and therefore caused the crisis (crisi) of the marriage. A specific claim (ricorso) must be carried out in the legal proceeding filed before the competent Italian Court, with the legal advice of an Italian qualified lawyer specialized in family law, and it entails important consequences both from an economic standpoint and concerning inheritance (successione) matters.

Who, for example, could file for a fault-based separation or divorce in Italy 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.

Separation proceeding pursuant to the Italian law

The Italian law does not provide for the possibility of an immediate dissolution of the marriage by means of a divorce proceeding: it exists a juridical institution which weakens the marriage duties between the spouses without deleting them and this institution is called personal separation between the spouses. Currently, two married spouses who would like to get a divorce must previously remain separated for at least six months if the separation occurred by mutual consent or at least one year if the separation was declared during a judicial proceeding.

We are all aware that the fairy-tale kind of relationship and the “happily ever after” kind of relationship may not only exist in the books but also in the ordinary lives of normal couples.

Let’s take into consideration the numerous cases of couples who may split, also badly, after years of disputes which may delete the happy moments and may leave both spouses in a sad apathy situation.

Let’s think for example how the wife would feel if the behaviour of the husband in the years became unbearable, offensive and humiliating also in front of the children and if, suddenly, he would leave the family house moving abroad without any grounded reasons. Notwithstanding the many years spent together, the wife could decide to get a separation, psychologically exasperated by his behaviour.

Fault-based separation proceeding in Italy

If on the grounds of the separation request there is a voluntary and aware behaviour by a spouse, and this behaviour makes the cohabitation unbearable (insopportabile), or it is against the matrimonial duties, it is probable that a request of fault-based separation charged on that spouse may be accepted by the competent Court.

During the fault-based separation proceeding, however, a link between the lacking behaviour of the spouse and the conjugal crisis has to be proved. Indeed, if the behaviour (in breach of the matrimonial duties) would be the consequence of an already occurred crisis, the separation would be declared as a “no-fault” separation. Moreover, the behaviour (in breach of matrimonial duties) must be done on purpose and it must not be the consequence of neurosis or psychotic illness.

Consequences of a fault-based separation pursuant to Italian law

In case of a fault-based separation, there are important consequences for the spouse who loses the right of alimony and the rights of inheritance. In particular, the spouse would only have a right of sustenance, in case of his/her inability to be self-sufficient. This right of sustenance would cover only the essential needs of life.

Obligations of husband and wife in Italy

What do we mean when we talk about spouse’s obligations? When people get married, five obligations enter into force between the spouse: the duty of moral and material faithfulness, the duty of mutual support, the duty of acting and collaborating in the interest of the family, the duty of mutual contribution and the duty of cohabitation.

If the behaviour of the husband or of the wife is in violation of any matrimonial duties, causing both the irreparable break of the family tie and the separation, this latter one could be considered as a fault-based one, charged on the spouse in breach of his/her duties.

The evaluation is carried out by the competent Court on the basis of the actual situation of the family. It means that leaving the family house, even if it may be considered a serious one, in some couples may be considered as ground for a fault-based separation while in other couples may not be considered like that: usually, the competent Court verifies if the fact of leaving the house is grounded or is ungrounded, and therefore it is the initial cause of the crisis.

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.