DIVORCE IN ITALY: ITALIAN DIVORCE

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Divorce effects in Italy | Italian Law Firm | Lawyer 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”).

Judicial divorce procedure in Italy | Italian Law Firm | Lawyer Italy

Timing of the judicial divorce proceeding in Italy when the 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”).

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 to convene witnesses or to carry out some 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.

Divorce maintenance in Italy – Italian Law Firm 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.

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 labor 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 (“diritti successori”) 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.

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 labor 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.

Divorce and children: maintenance in Italy / Italian Law Firm / Lawyer 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”).

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.

What are the extraordinary expenses and how they are shared in Italy

Italian Law provides a difference between ordinary expenses (“spese ordinarie”) and extraordinary expenses (“spese straordinarie”). These latest ones are not compulsorily indicated by the Law, but they could be defined as extra expenses (“spese extra”) that are borne by the parents fulfilling their duty of maintenance of the children, whereas for “extra” it is meant what does not concern the primary needs of sustenance.
For example, the expenses which could be included in this category may be the following ones: medical expenses (which are not reimbursed by the Italian Health Service), scholastic expenses (“scolastiche”) (school taxes, subscription fee, books, expenses for food), expenses for leisure and extra-scholastic (“extra-scolastiche”) activities (lessons in the afternoon, sport activities, games), expenses for travels (“viaggi”) and holidays.
Usually, these expenses are equally split between the two parents and are not included in the sum due as alimony being added to the same, as these expenses are not previously calculated, as long as they are previously agreed (“concordate”).
However, in some cases the Court could rule these cases, stating different proportions or even indicating that one of the two parents shall bear all the due expenses, in case there is a big difference between the economic situations of the two parents.

What happens in Italy if a parent does not pay the sum due as alimony

In case a parent does not fulfil the payment of the sum due as alimony, the parent risks some consequences both from the civil and from the criminal standpoint.
From the civil standpoint, the parent could suffer an executive (“esecutivo”) proceeding requested by the other parent, who could obtain the foreclosure (“pignoramento”) of the bank account, of the house or of one-fifth of her/his monthly salary until the whole due amount is paid. From the criminal standpoint, the parent could be charged with the indictment of violation of family duties and could risk up to one year of prison.

Divorce without separation in Italy | Italian Law Firm | Lawyer Italy

In Italy, if advised by an Italian qualified lawyer or by an Italian Law Firm, it is possible to obtain the divorce without requesting first the separation, in case one parents commits a serious crime

In Italy, usually before requesting the divorce (“divorzio”), husband (“marito”) and wife (“moglie”) must obtain the legal separation (“separazione legale”) with the legal advice of an Italian Law Firm (“Studio Legale Italiano”) or of an Italian qualified lawyer (“Avvocato italiano”). However, in some cases it is allowed to divorce without requesting the separation.

Who, for example, could request the separation or the divorce, pursuant to Italian Law:

The legal separation before the divorce pursuant to Italian Law

The Italian Law which rules the cases of divorce is the No. 898/1970, and it compulsorily lists the causes that allow the spouses to divorce (“divorziare”).

The most frequent cause of divorce, which may lead to divorce in Italy, it is the personal separation of the spouses (which lasts at least six months, and the minimum terms becomes at least twelve months in case of judicial separation). The minimum term period starts since the day on which the Court authorizes the spouses to live separately. The actual separation (“separazione di fatto”) has no value, i.e. the period on which the spouses lived separately without any specific decision on this purpose issued by the Court, except in case the separation started at least two years earlier than 18 December 1970.

Causes of divorce (from a different standpoint than the criminal one) pursuant to Italian Law

In addition to the causes of divorce provided for under the criminal standpoint of the Italian Law and in addition to the personal separation of the spouses, the following causes may be causes of divorce: the cancellation (“annullamento”) or the termination of the marriage or the celebration of a new marriage occurred abroad; the lack of consummation of the marriage and the change of sex (“cambiamento di sesso”) by one of the spouses, change that has been amended by a sentence issued on purpose.

How can be obtained the divorce in these cases in Italy?

Usually, in the cases above mentioned, the spouses are having a period of huge difficulties, a period that goes over the simple conjugal crisis. These are situations in which it may not be possible to start a mutually agreed procedure, therefore the spouse who is interested in it may start the necessary proceeding by means of filing to the competent Court the first deed of the proceeding (usually the competent Court is the Court of the latest place where the spouses had been jointly resident). It is therefore essential the legal advice by an Italian qualified lawyer specialized in Italian family law.
Therefore, the spouses will divorce directly without going through the intermediate step of the 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 spouse untraceable in Italy | Italian Law Firm | Lawyer Italy

If husband or wife would like to request the divorce but the spouse is untraceable, the spouse can anyway obtain the divorce with the legal advice of an Italian qualified lawyer or of an Italian Law Firm

Pursuant to Italian Law, when a spouse (husband – “marito” – or wife – “moglie”), after the separation, is untraceable (“irreperibile”), the other spouse could in any case proceed in order to obtain the divorce filing before the Court a judicial deed with the legal advice by an Italian qualified lawyer (“Avvocato italiano”) or by an Italian Law Firm (“Studio Legale Italiano”).

This kind of proceedings in Italy is not rare, because it may often happen, especially in case of a mixed couple, that husband or wife may cancel all his/her traces or may not be traceable at the Municipality of the latest known residence, or again they are foreigners (“stranieri”) who leave the country without leaving any trace of their destination.
In case the spouse should appear before the Court when the proceeding has already started and should find an agreement with the other spouse, it will be possible to switch the proceeding into a consensual one.

Legal advice and duration of the legal proceeding in Italy

When the spouse is untraceable, the most delicate part of the proceeding with respect to the Italian Law consists in the notification (“notifica”) of the deeds to the counterparty: to this purpose, the Italian qualified lawyer must perform an appropriate procedure provided for under the Italian civil procedure code, usually to the latest known residence.
After having performed all the notifications in accordance with the Italian Law, the legal proceeding may continue by means of the decision issued by the Court concerning the “contumacia” (in absentia) of the other spouse. This means that the judicial proceeding goes on in absence of the counterparty.
In these cases, the absence of the counterparty prevents the introduction of a contradictory between the parties and, therefore, speeds up the proceeding even if the proceeding needs to be performed in accordance with the rules indicated in the Code and, as a consequence, the proceeding may have a changeable duration, on the basis of the evidence to be submitted and on the basis of the number of proceedings regularly carried out by the Court.
As already said, when the spouse is untraceable the most delicate part of the proceeding is the one concerning the notification. That is why it is necessary to appoint an Italian Law Firm that could perform the necessary investigations among the local entities and, above all, that is fully aware about the regulations regarding the various kind of notification, especially when these notifications need to be performed abroad (“all’estero”), taking into consideration that, on the basis on the country of destination, it is essential to deal with these notifications also by means of unusual procedures, for example via embassies and consular offices.
About anything else, the civil proceeding is equal to an ordinary civil proceeding before the competent Italian Court, that can be taken into consideration in case further pieces of information are needed.

Wife and divorce: alimony protection in Italy – Italian Law Firm – Lawyer in Italy

The wife can request a sum due as alimony by means of the legal advice by an Italian qualified lawyer or by an Italian Law Firm

Recently, the wife (“moglie”) – who after the divorce (“divorzio”) receives a sum (“assegno di mantenimento”) from the husband (“marito”) due to alimony – in Italy could see the reducing of the amount as a consequence of the sentence issued by the Corte di Cassazione number 11504/2017 that has completely changed the interpretation of the law concerning the sum due as alimony to be paid to the other spouse after the divorce. It is possible avoiding this risk by means of the legal advice by an Italian qualified lawyer or by an Italian Law Firm.

Before getting deeper into details, it may be useful to indicate, for example, who could request the divorce, pursuant to Italian Law:

What requirements need to happen in Italy to obtain a decrease of the sum due as alimony

Usually, in Italy after the sentence of divorce it is always possible, for the parties, to request to the Court a decision which may authorize the amendment (“modifica”) of the previous economic conditions. The law concerning the divorce provides that the request can be filed only when arise new facts occurred after the moment on which the provisions in force and effect had been ruled.

It is worth specifying that the sentence issued by the Corte di Cassazione has not modified the law concerning the divorce and the criteria there indicated. The sentence is only a case law precedent, even if important, that can be highlighted to ground a request for the amendment of the sum due as alimony in case of a divorce by an Italian husband.

Divorce in Italy: duties of the husband – Italian Law Firm – Lawyer in Italy

In Italy, among the duties of the husband after the divorce, there is the duty to pay a sum due to the wife as alimony: however, in some cases – by means of the legal advice of an Italian Law Firm or of an Italian lawyer – the amount of the sum can be reduced

In Italy, among the duties (“doveri”) of the husband (“marito”) after the divorce there is the duty to pay a sum (“assegno”) due to the wife (“moglie”) as alimony. If the husband believes that he is paying an exaggerated amount to the wife as sum due as alimony, he has the opportunity to file a request before the competent Italian Court in order to reduce (“ridurre”) the sum due as alimony, by means of the legal advice by an Italian qualified lawyer or by an Italian Law Firm.

What requirements need to happen in Italy to obtain a decrease of the sum due as alimony

The Italian Corte di Cassazione, by means of the sentence No. 11504/2017, has revolutionised the interpretation of the law concerning the sum due as alimony in case of a divorce to be paid to the spouse after the divorce.

The Italian Court has not modified the law concerning the sum due as alimony in case of a divorce: in any case, the sentence constitutes an important precedent, that could ground a request filed to obtain the amendment of the sum due as alimony in case of a divorce by a husband.

The majority of sums due as alimony in case of a divorce were based on the criterium of the standard of living. Actually, the Court – while examining the right of the economically weaker spouse to receive a sum due as alimony in case of a divorce – tried to maintain both for the husband and for the wife the same standard of living occurred during the marriage.

Instead, the criteria indicated by the sentence issued by the Corte di Cassazione release the grant of the sum due as alimony from the criterion of the standard of living. According to the Supreme Court, the principle of economic independence of the applicant spouse is exclusively essential for the release of the alimony.

The alimony in case of a divorce, therefore, shall be due to the wife only in case she will not (or it will not be possible, due to objective reasons) be economically independent, i.e. in case she will not be able to maintain herself.

When the economic independence can occur, pursuant to Italian Law

The wife shall be the one to prove, among others, both her impossibility to maintain herself due to objective reasons without her fault, and not to have adequate resources to provide for her sustenance.

In case it would arise out that the wife is beneficiary of a labour income as employee or owner of personal assets, therefore, it would be highly probable that the Court may rule the reduction of the sum due as alimony in case of a divorce or even the termination of this duty.

How to proceed in order to obtain the amendment

The husband should request legal advice to an Italian qualified lawyer specialised in Italian family law, in order to file a deed concerning the request of amendment of the terms and conditions of the alimony before the competent Italian Court, usually the same Court who ruled concerning the divorce. In this part of the proceeding, it could be very important to appoint an Italian Law Firm who could work together with a group of multi-disciplinary professionals, who work on different levels, also abroad if necessary, in order to carry out detailed investigations if necessary, to clarify the economic situation of the wife.

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”).

Divorce / separation procedure: maintenance in Italy – Italian Law Firm – Lawyer Italy

In Italy, both in case of a separation and in case of a divorce, for both husband and wife it is provided a procedure to obtain the maintenance with the legal advice of an Italian Law Firm or an Italian qualified lawyer

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.

Effects after divorce / separation in Italy – Remove alimony – Italian Law Firm – Lawyer Italy

The effects of the sentence of separation or of divorce in Italy could be amended. Husband and wife can file a request with the legal advice of an Italian qualified lawyer or with an Italian Law Firm to terminate the duty of alimony.

In Italy, before requesting the divorce (“divorzio”), husband (“marito”) and wife (“moglie”) must obtain the legal separation (“separazione”) by means of the legal advice of an Italian qualified lawyer (“Avvocato italiano”) or an Italian Law Firm. (“Studio Legale Italiano”). Both the sentence of divorce and the sentence of separation can be amended also to remove the duty of alimony from it.

Amendment of terms and conditions of separation of husband and wife, pursuant to Italian Law

In Italy, all terms and conditions defined during the separation proceeding, both consensual and judicial, can be modified in case grounded reasons occurred in the meantime. The civil proceeding to modify these terms and conditions has a variable duration that depends on the disputes between husband and wife and on the probable agreement upon terms and conditions to modify.
What has been decided during the separation proceeding, indeed, is always modifiable (so called “rebus sic stantibus” clause, which literally means “until things remain like this”) in case there are some changes in comparison with the situation occurred at the date of the separation. If there are some changes, therefore, also the sum due as alimony and/or as child custody can be terminated.

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);
– labor 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.

Italian qualified lawyer specialized in family law, separation and divorce

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.