Modern times: consensual divorce (separation) timing in Italy

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). 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 the 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 proceeding of “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 parents 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 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 of “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 of “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” (good standing) and 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.

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.

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.

Judicial divorce procedure in Italy

Timing of the judicial divorce proceeding in Italy when two spouses (husband and wife) are advised by an Italian qualified lawyer or by an Italian Law Firm

In Italy, the judicial divorce (divorzio) allows the termination of the marriage and its timing may vary as a consequence of the disputes between the spouses (husband and wife) (marito e moglie) and of the evidence to be evaluated. The legal procedure starts by means of a deed which must be filed in Court with the compulsory legal advice of an Italian qualified lawyer (Avvocato) or of an Italian Law Firm (Studio Legale Italiano).

Who, for example, could divorce (divorziare) 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 is the judicial divorce, currently in force and effect in Italy

When husband and wife are separated but:

• They cannot find an agreement about terms and conditions of the divorce (for example, about economic matters or issues regarding the children);
• Only one of the two spouses may want to divorce;
• One of the two spouses is untraceable.

The spouse who has an interest in terminating the marriage (matrimonio) must proceed with a civil proceeding before the competent Italian Court, that’s usually the one of the latest residence of the spouses. In this case, the legal advice by an Italian qualified lawyer is compulsory in order to file a judicial deed.

In the high majority of cases, this is the way to proceed when the spouses cannot find an agreement about terms and conditions of the essential matters connected with the termination of a marriage like the economic matters (for example, the determination of the sum due to alimony – “assegno di mantenimento” – or the sharing of mutually owned assets) or the issues regarding the children (for example the child custody – “affidamento” – and the assignment of the children and/r of the family house).

How a judicial divorce works, and how long it may last

The divorce procedure may start only after six months since the day of the hearing of the consensual separation (“separazione consensuale”) procedure held in Italy. If the spouses are judicially separated, the divorce procedure may start only after one year since the spouses have been authorized by the Court to live separately. These terms are both essential and compulsory.

The divorce procedure starts with the filing of the first deed and with the notification of this first deed to the other spouse, so that the Court may decide upon the filed requests.

The judicial divorce procedure may be transformed in a consensual divorce procedure also after the beginning of the procedure, in case the spouses find an agreement. Without any agreement, the procedure shall go on like any ordinary civil proceeding.

The husband, the wife and their respective Italian qualified lawyers shall be convened before the President of the competent Italian Court, in order to attend in person to the first hearing. Later, the procedure shall go on like any ordinary civil proceeding and shall finish with a sentence.

While the procedure upon joint request (“domanda congiunta”) may finish within a few months since the filing of the first deed (in case of a mediation, even within a few weeks), to forecast in advance the timing of a judicial divorce proceeding may be more complicated: the procedure can last even for years. The timing may vary as consequence of the disputes between spouses, and of how much time may be necessary to collect all the evidence that must be evaluated by the Court. Indeed, in many cases it can be necessary convene witnesses or carry out some police investigations (“indagini”) and/or estimations by appointed experts concerning getting deeper into the knowledge of the actual economic situation regarding the husband and the wife, especially in case of a request of alimony and/or child support regarding the spouse and/or the children. The declarations of income quite often may not be enough for the Court, especially when the Judge may suspect about the existence of some assets, bank accounts or bonds which have not been declared, and the analysis may require further verifications.

For the above-mentioned reasons, even if a consensual solution may always be preferred, it is important to ask legal advice to an Italian Law Firm that may advise the Client not only from the legal standpoint but also counting on a multi-disciplinary network. In this way, it is possible to receive an advice on many different levels, also abroad, in order to start deep analysis and investigations that may clarify the actual economic situations of the spouses. If necessary, it needs to be possible to advise also concerning the psychological matters connected with the divorce, especially when also minors are involved.

The partial sentence of divorce

Husband and wife have the possibility to obtain a not definitive sentence (sentenza non definitiva) which declares the termination of the marriage, as well as rules on possible preliminary undisputed requests, if there are any. Both spouses shall obtain the status of “free” and shall be able to get married again. The civil proceeding shall go on only concerning the disputed requests.

What documents (“documentazione”) are necessary for the judicial divorce

• Original deed of the wedding (“atto integrale di matrimonio”) to be requested to the Municipality of residence of the spouses at the date of the wedding or to the Municipality of residence of the spouses at the date of the wedding (please note that a copy of the deed of the wedding or a certificate about it would not be accepted);
• official copy (means a copy as enforceable as the original, issued by the office of the Court where the separation took place) of the homologated minutes of the hearing of consensual separation (“verbale di separazione consensuale omologato”) or of the sentence of separation (“sentenza di separazione”). In case of “negoziazione assistita” (advised negotiation) or in case the separation took place before the “Ufficiale di Stato Civile” (a public officer), a copy of the respective deeds;
• Copy of the deed of the wedding to be asked 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” (good standing) and of residence (“residenza”) 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.

On the basis of the issues that shall be dealt with in the civil proceeding, further copies of documents could be necessary, in order to prove the economic situation of the spouses. For example, we could list:

• occurred expenses;
• any bank accounts (in Italy or abroad), copies of documents regarding bonds and/or shares and/or connected with financial investments;
• insurance agreements (life insurance agreements and other insurance agreements);
• documents connected with real estate assets located in Italy or abroad or connected with other assets (cars, boats, and so on);
• labour agreement and documents connected with it (payroll, benefits and so on).

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.

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: divorce (separation) in 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.

In Italy, before filing for the divorce (“divorzio”), husband (“marito”) and wife (“moglie”) must obtain the legal separation (“separazione legale”) by means of the legal advice of an Italian Law Firm (“Studio Legale Italiano”) or of an Italian qualified lawyer (“Avvocato italiano”). 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 labour 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”).

Divorce maintenance in Italy

Sum due as alimony in case of a divorce: requirements for the request and calculation of the sum due as alimony are determined on the basis of the economic and patrimonial situation of both spouses. The legal advice by an Italian qualified lawyer or by an Italian Law Firm is necessary.

In Italy, the divorce (“divorzio”) extinguishes the duty of material assistance between spouses (husband – “marito” – and wife – “moglie”), as the divorce terminates the marriage and all the duties connected with it. By means of the legal advice of an Italian qualified lawyer (“Avvocato”) or of an Italian Law Firm (“Studio Legale Italiano”), a sum due as alimony in case of a divorce (“assegno divorzile”) can be requested. It is a sum which contributes to the maintenance of the divorced spouse: this sum, in case some specific requirements actually are in force and effect, prevents the excessive deterioration of her economic situation. The calculation is done on the basis of the patrimonial situation of husband and wife.

Who, for example, could request or could be asked to pay a sum due as alimony in case of a divorce, 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.

Fiscal matters

A sum due as alimony in case of a divorce may be deduct from the income (“reddito”) of the payer, pursuant to Italian fiscal Law (“Fisco italiano”), while for whoever receives it, this sort of income could be assimilated to the income arising out of labour agreement and, consequently, shall deserve a specific declaration of income of purpose. The situation is a bit different in case of a lump-sum payment, as we will see later.

Necessary requirements to obtain a sum as alimony in case of a divorce pursuant to Italian Law

In order to obtain a sum as alimony in case of a divorce (“assegno divorzile”), except in case of an agreement between the spouses, husband and wife need to file a specific request on purpose during the judicial divorce procedure.

The Italian Courts must ascertain that the spouse who requests the sum due as alimony does not earn an income which may allow her to maintain herself or, at least, that she is not able to obtain an income due to objective reasons.

On this specific point, the Italian Corte di Cassazione has changed the previous general approach, which was grounded on the basis of maintaining the standard living conditions that the spouses had during the marriage in order to determine the sum to pay as alimony.

With the specific purpose of determining the sum due as alimony, the Court must examine the income earned by both spouses as well as the actual contribution which has been done by each spouse during the marriage to the management of the family (including but not limited to the domestic work and the care of the children), taking also into consideration the duration of the marriage.

During the evaluation of the economic discrepancy between the spouses, income arising out of labour agreements will not be the only matters to consider but, in general, all the patrimonial assets owned by both spouses (real estate assets, stocks, shares, bonds, money and so on) shall be taken into consideration.

How to calculate the sum due as alimony in a case of divorce in Italy

In Italy, a mathematic rule to apply to calculate the amount of the due sum does not exist. The Italian Law provides that only the Court can decide the amount of the due sum. However, many models of calculation exist as well as many guidelines written by important Courts are followed to this extent, but the Court is not forced to adapt its decision to them.

That is why, in the phase of the civil proceeding where evidence is collected and filed, a comparison between the economic situations of the two spouses is very important, it being the way to understand if there is really a discrepancy between the two parties.

An analysis of the economic situations as well as of all the activities of the spouses which may be relevant for the evaluation will allow the Court to pinpoint in an objective way the amount of the sum due to the spouse who is weaker from the economic standpoint.

For these reasons, it is important to request a legal advice (“assistenza legale”) to an Italian 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 (“indagini”) which could clarify the economic situation of husband and wife.

It goes without saying that the current guidelines by the Italian Corte di Cassazione, that decided to recognize to the divorced spouse only the right to receive a sum necessary to his/her maintenance notwithstanding the standard of living which were carried by the spouses during the marriage, have made the requirements for obtaining a sum due as alimony even stricter. In any case, an adequate and careful patrimonial investigation is always recommendable, given the possibility of a future judicial divorce proceeding.

The sum due as alimony in a case of divorce as a lump-sum payment pursuant to Italian Law

Pursuant to Italian law, the payment of a sum due as alimony usually is a recurring payment (it may occur monthly, for example) or the payment of a sum as alimony could be provided as a lump-sum payment (it may be called as “tombstone”).

This second option could arise out only of an agreement (“accordo”) between the spouses (it may not be provided in any case of judicial divorce proceeding), who decide a sum which could be considered satisfying for both: this sum would entail the termination of any other patrimonial duty connected with the maintenance of the weaker spouse. Therefore, husband and wife agree upon the payment of a lump-sum which shall not be modified by anyone in the future, regardless of personal and/or economical events which could happen in the future. The agreement between the spouses could concern not only money but also the assignment (“trasferimento”) of different assets (for example, one or more real estate assets, shares, stocks, and so on). Differently to what happens in case of recurring payments, in case of a lump-sum payment does not allow to any ex-spouse to have inheritance rights (2diritti successor”) towards the other ex-spouse, as well as to obtain a part of any severance indemnity (“TFR”) when it might become available (if it happens after the divorce).

The payment of the sum due as alimony as a lump-sum does not allow the payer to deduct it from the declaration of income for fiscal reasons, as well as it is not considered as an income for the receiving spouse.

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”).

How to get a divorce (separation) in Italy

Even if the wife does not want the separation (divorce), the husband, 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”).

Also concerning the divorce, the procedure is similar to this one: for more information, please see the dedicated article.

Who, for example, could 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.

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

When the wife does not want to agree on the separation, the Italian Law gives to the husband 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”).

Divorce effects in Italy

In Italy, if advised by an Italian qualified lawyer (an Italian Law Firm), the effects of the divorce leaves to husband and wife some rights like the maintenance rights, the assignment of the family house but also some inheritance rights

In Italy, the divorce (“divorzio”) entails various effects for husband and wife, who keep some important rights, mainly economical ones. The legal advice by an Italian Law Firm or by an Italian qualified lawyer may entail up to the maximum guarantee in these cases.

Who, for example, could request the divorce, 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.

Personal effects of the divorce, pursuant to the Italian Law

In Italy, from the personal point of view, the divorce terminates definitively the marriage. In case of “matrimonio concordatario” or celebrated in accordance with one of the religions officially recognized by the Italian state, the divorce terminates the civil effects of the marriage.

By means of the divorce, the spouses become free to get married once again. For the ex-spouses conjugal duties like moral and material assistance or collaboration between spouses are interrupted.

Moreover, the wife loses the right to use the surname of the husband expect in case of an express authorization by the Court on this purpose.

Sum due as alimony in case of a divorce in Italy

In Italy, the duty of support in favour of the ex-spouse becomes a duty to pay a sum due as alimony to the weaker spouse (from an economic standpoint) as a contribution to the maintenance (“mantenimento”). This payment is determined on the basis of the income (“reddito”) and on the basis of the patrimonial situation of each spouse, of the duration of the marriage and of the working ability of the spouse who requests the sum. According to the latest guidelines by the Italian Corte di Cassazione, the determination of a sum due as alimony for the maintenance is due to the spouse only in case the latter does not have enough money/assets to provide for her/his own maintenance or cannot be able to obtain them because of objective reasons.

The payment can be determined as a recurring one (also known as sum due as alimony – “assegno”- for the maintenance in case of divorce, usually paid on a monthly basis) or as a lump-sum payment (“una tantum”). This latter case could be agreed by the spouses during a divorce on a consensual proceeding by means of a mutually agreed request and not during a judicial proceeding. The payment of a lump-sum solves all the economical requests by the weaker spouse (from the economic standpoint), who shall not be able anymore to make further requests in the future about the sum dedicated to the maintenance of the ex-spouse. The lump-sum payment shall not be modifiable anymore.

The spouse who obtain the custody of the children (in the majority of cases it is the mother) has the right to receive a sum for the maintenance of the children as long as they are minor of age or, if they are major of age, as long as they are not economically independent. In this case, the evaluation of the sum depends on the economic situation of the parents, as well as on the standard of living (“stile di vita”) carried out by the family during the marriage: the idea is to try to keep the family situation as similar as possible in comparison with the situation of the family occurred during the marriage, so that the children could avoid a turmoil of their habits (having already suffered the trauma of the break-up of the family unit).

Assignment of the family house in case of spouses without children in Italy

Pursuant to Italian Law, the divorced spouse is not automatically entitled to remain in the family house. If the spouses had no children, it is very unlikely that the Court will assign the family house to a spouse who is not the owner of the house. In case the two spouses may reach an agreement, instead, it is possible that the spouse, who is not owner of the family house, may receive the assignment of the family house. If one of the spouses does not own enough economical resources to allow herself/himself a proper new accommodation, this factor will be considered during the evaluation of the sum due as alimony or it could be possible to obtain that the other spouse shall pay a sum for the sustenance of the weaker spouse.

If the house is co-owned by both spouses, instead, it would be desirable that the spouses (and their lawyers) could find the best solution for the concrete case, for example selling the co-owned real estate asset to divide the money pro quota, or to purchase the quota of the house by the other spouse, or finally to assign the house to the co-owner who has minor financial resources.

Assignment of the family house in case of spouses with children, pursuant to Italian Law

The estimations may change in case the divorcing spouses have children, who are still minor of age or still not independent from an economic standpoint.

Indeed, in Italy the right to live in the family house is given to the children and, consequently, to the parent who is assigned with their custody, i.e. the parent who will be granted with the assignment of living mainly with the children, or exclusively in all the (nowadays minority) cases in which only one parent is considered adequate to the exercise of the parents’ liability. The spouse will remain assigned with the family house and with all the furniture inside the same, until the children will not be living in the family house anymore or will be independent from an economic standpoint, therefore, regardless of them being mayor of age or not. The spouse assigned with the family house, unless different agreement, shall pay both the ordinary expenses directly connected with family house and the expenses connected with the utilities of the house.

Sharing of the severance indemnity (“TFR”) pursuant to Italian Law

In Italy, if one of the spouses receives the severance indemnity (“TFR”) from his/her employer (e.g. in case of dismissal, resignation or retirement) after the filing of the request of divorce, the ex-spouse could have the right to receive an amount equal to the 40% of the aggregate amount. The calculation of the amount must take into consideration all the years in which the spouse has worked during the marriage, including the period of the separation. In order to be able to obtain a quota of the severance indemnity, the spouse needs to be the beneficiary spouse of a recurring sum due as alimony and needs not to get married again. No quota of the severance indemnity could be asked by the ex-spouse who received a sum due as alimony as a lump-sum payment, except in case of special indications in case of inheritance.

Inheritance rights provided for under Italian Law in case of death of the ex-spouse

When one of the ex-spouses dies, pursuant to Italian Law the other one does not become one of his/her heir, which instead happens if the death arrives during the period of separation. However, other inheritance rights for the ex-spouse may exist, and they remain in full force and effect also after the divorce, like for example:

– retirement benefits (direct or indirect – in case of death)

– sum due by the inheritance assets

About retirement benefits, these benefits are due only to the ex-spouse who has the right to receive a recurring payment of a sum due as alimony in case of divorce as long as he/she does not get married again (the whole quota of retirement benefits that may be assigned is equal to about 60% of the due amount, quota that could become equal to 80-100% in case of children minors or not economically independent). In case the dead ex-spouse got married again, the divorced ex-spouse needs to share the quota of retirement benefits with the new spouse.

The same rules apply in case the dead ex-spouse had not reached the requirements necessary to receive the retirement benefits: the divorced spouse would be the beneficiary of the (direct or indirect) retirement benefits, in case sharing these retirement benefits with the new spouse of the dead ex-spouse.

The sum due by the inheritance assets, instead, can be requested by the divorced ex-spouse to the heirs of the dead ex-spouse. This kind of sustenance is given only if the applicant, who is a beneficiary of a sum due as alimony in case of a divorce who does not get married again, may prove that she/he is in a difficult situation from the economic point of view, meaning that she / he is not able to provide by him/herself to his/her own basic sustenance. The sum is calculated on the basis of the number of heirs, on the basis of their economic situation and on the basis of the value of the inheritance. No rights are given to the ex-spouse, who received the sum due as alimony as a lump-sum payment, except in case of special and express indication in the dead’s will to this purpose.

Consequences of the divorce on the patrimonial fund and on the family enterprise in Italy

By means of the divorce, the patrimonial fund established by the spouses terminates, except when the spouses have children who are still minor of age or in some specific cases as ruled by the competent Court. The divorced spouses, moreover, ceases to participate to the family enterprise.

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 both in case of a consensual divorce (“divorzio consensuale”) and in case of a judicial divorce (“divorzio giudiziale”).

Divorce and children: maintenance in Italy

In Italy, the maintenance (“mantenimento”) of the children (“figli”) after the divorce of the parents is a very delicate matter, therefore it is opportune to be advised by an Italian Law Firm (“Studio Legale”) or by an Italian qualified lawyer (“Avvocato”) specialized in Italian family law. Pursuant to Italian Law, the rules concerning the maintenance of the children are the same both in case of a separation (“separazione”) of husband and wife and in case of a divorce (“divorzio”).

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

General rules and duties towards the children pursuant to Italian Law

The Italian Law provides that, even after the separation or the divorce of the parents, the children have the right to receive a continue and balanced relationship with both parents as well as the right to be receive a good education and being cared both by the mother (“madre”) and by the father (“padre”). The parents must pay a sum for the maintenance and this sum is calculated, together with other criteria, on the basis of the economic situation of the husband and wife, of the standards of living of the family occurred during the marriage and on the basis of the time the children spend with each of the spouses.

The duty to maintain the children remains in force and effect regardless of becoming the children older than 18 years old: it remains in full force and effect until the children become economically independent.

The parents must guarantee the respect of all the children’s needs, that include not only the expenses for the food, but also the ones connected with the house, the school, the sport activities, the medical and social needs and a regular organization which could guarantee the achievement of all the needs which give a contribute to the psychophysical growth.

What are the criteria for the determination of the maintenance of the children in Italy

In Italy, the maintenance of the children must be determined proportionally to the income of each spouse. This means that not only the working activities matter, but also the properties (“patrimonio”) owned by each spouse. Therefore, in case a mother or a father does not work but owns a huge number of assets, they must in any case pay a sum for the maintenance of the children.

In addition to the income of the parents, the criteria that must be taken into consideration with the purpose of determining the sum due as maintenance are the actual needs of the child, the standards of living occurred during the marriage and the time spent by the child with each spouse, also taking into consideration the economic importance of the care and growing-up duties.

What happens in Italy if the parents do not agree upon the sum due for the maintenance

If during the separation or divorce proceeding in Italy the spouses cannot find an agreement about the sum due for the maintenance of the children, the Court shall evaluate the facts indicated by the spouses in order to determine both the standard of living of the family occurred before the break-up of the family unit and the current economic and patrimonial situation of husband and wife.

Quite often, the Court performs a first calculation in order to issue the preliminary and urgent provisions after the first attendance hearing (“udienza di prima comparizione”), so to finally get to a final determination of the amount after the investigative phase of the proceeding.

To this purpose, it is necessary that the Court does not examine only the declarations of income, because – especially in case they are inconsistent with the standard of living of the family or of a spouse – may not be descriptive of the actual economic and patrimonial situation. In these cases, more deepened investigations shall be performed – both concerning the documents (bank accounts, bonds, shares, stocks and so on) and concerning further fiscal police investigations (via international investigations, if there are international matters) as well as via internet, having direct access to the database collected by the Italian fiscal authorities.

For these reasons, it appears to be useful to request a legal advice to an Italian Law Firm, which may be able to guide the Client concerning the examination of the documents of the spouses in order to plan a proper investigative phase to file in Court all the necessary facts which may be needed by the Court to issue the final decision.

What is the value of the assignment of the family house pursuant to Italian Law

In Italy, criteria clearly indicated by the Italian Law for the determination of the sum due as alimony do not exist, this means that the Court shall not follow mathematical parameters, but the Court shall necessary estimate both the actual income earned by each spouse and all the benefits granted to each spouse. The main guidelines by the Italian Courts refer to some clear indications on this purpose, and one of the main indication is the one of considering very important the assignment of the family house. The parent who shall live in the family house with the children, therefore, shall have an economic advantage that shall be taken into consideration while calculating how to share assets and liabilities between the parents.

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 both a divorce (“divorzio”) and in case of a separation (“separazione”) consen