A Guide to Divorce in Italy

A Guide to Divorce in Italy

Divorce in Italy

Divorce in Italy can be both simple and quick, if an agreement can be reached with the future ex-spouse. In case of a lack of agreement, the fate of the divorce is decided by lawyers, within the limits of their role and remit, and by the judge.

After law 55/2015 for quick divorces came into effect on the 26 May 2015, in order to dissolve a marital partnership in Italy, six or twelve months must pass for mutual and judicial separations respectively.

Separation before divorce

To go through a divorce in Italy you must pass through an initial phase of separation. Separation does not bring the marital relationship to an end, but reduces the effects of it.

Above all, the obligation to live together is no longer applicable, you are no longer held to fidelity and the legal sharing of property terminates. Other marital duties also cease.

However, patrimonial obligations and material assistance obligations do exist. Only a subsequent divorce means the break-up of the marriage or the end of the civil effects.

The initial separation can also be requested by just one of the spouses. It is up to the Court to approve the separation, as an alternative this can be the effect of an “assisted negotiation” agreement, and be established by lawyers, or signed before the mayor.

A decree that approves separation by mutual consent, or rather the judicial separation agreement, or the assisted negotiation agreement, authorised by the public ministry, or alternatively the signing of the agreement before the Mayor in order for the separation to be valid, are all sufficient. 

Separation by mutual consent

When separation occurs by mutual consent, the spouses provide a common request before the President of the Court, in order that they might support their approval. If the agreements are judged to be reasonable for the spouses and appropriate for the offspring, the court can approve them.

The term of six months after which you can request a divorce in Italy starts from the date of the hearing.

Judicial separation

When spouses do not agree on the conditions of the separation, judicial or contentious separation can happen.

In the case of no agreement, when living together becomes “intolerable” to carry on with, the request for separation can be presented by one of the two spouses.
This separate path is defined by the “judicial separation code” since the final provision request constitutes the outcome of a contentious civil process: a ruling that arranges for the personal separation of spouses.

In these circumstances you can make a request for a separation charge to the spouse whose “behaviour is contrary to the duties deriving from marriage”. (Art. 151 Codice Civile)

If the spouses do not have this type of understanding, it is up to the Tribunal to make a decision upon all the controversies and to establish the rules of separation. In this case, one would resort to a civil trial.
The court, pending a judgement, can release a provisory sentence that liberates the spouses from the matrimonial path, proceeding with the disagreement only on the aspects relating to property or debt.

Separating through assisted negotiations

Decree n. 132 of 12 September 2014, made into the law 162/2014, introduced the possibility of employing the “assisted negotiation” in order to bring an end to the marriage.

Two spouses in agreement can bypass the Tribunal and turn directly to the lawyer or state official for the Commune.

In the absence of dependent children, if an agreement is reached, it would have to be authorised by the public ministry. Within a month, if opposite opinions do not exist, the agreement would be transcribed at the office of the civil state.

If there are underage children who are disabled or severely disabled the agreement must be sent to the public ministry within ten days.

In the absence of underage children or those in need of assistance, spouses can ask to appear by themselves before the Mayor to obtain separation.

Reconciliation

Separation is the only way that leads to divorce in Italy but it is not a path with no going back. Spouses can be reconciled if and when they want. Reconciliation brings an end to the effects of the separation.

In accordance with article 157, c.c., spouses can bring an end with a mutual agreement to the effects of the separation with an “express declaration”, intimating that it could be made, orally or in writing by means of a public acknowledgement or private writing, of an act received from a notary or registrar.

A more recent jurisprudential orientation has actually concluded that the declaration must submit to “desires of certainty ascribable not just to the interests of the parties, but also to the indisputable publishing reflections recognised by the system to the family institution.”

And so, while not supported by sacramental formulas, this declaration must possess the requisite formal acts to make it verifiable at any moment.

Divorce

Once the agreement for a divorce in Italy has been announced the marital bond is completely dissolved.

This produces effects from the civil point of view, given that the spouses primarily change their status, and can now re-marry. The wife must give up the husband’s surname, unless the judge allows them to keep it.

From an inheritance point of view, the right of one to succeed the other is lost. Depending on the property situation, one of the two spouses should give to the other a periodic “divorce allowance”.

If the parties reach an agreement it can be substituted with an allowance given to one solution subject to the consent of the court that is to make sure that the amount is enough.

Furthermore, ownership of the house, of the property and of other possessions have to be decided. Divorce in Italy also includes a definitive decision on the custody of potential children, but normally the one that is established is ratified during the separation.

In case of “holy marriage with civil recognition”, honoured in a church and transcribed in the registers of the marital record of the commune, the civil effects cease but to terminate the religious path a pronouncement of annulment from the Regional Ecclesiastic Court or Sacred Rota is needed.

Exceptions

It is possible to get a divorce in Italy not only after a separation but also in other exceptional cases:

  • If the marriage was not consummated
  • If one of the spouses committed a very serious crime
  • If one of the spouses legally changed their gender
  • If one of the spouses is a foreign citizen and has got the divorce/annulment abroad, or has remarried.

Tfr and the ex-spouse’s pension

The spouse that is the main child-care provider has the right, if they have not remarried, to a percentage of the indemnity of severance collected by the other spouse to the act of cessation of the employment relationship, even if brought about and after the ruling.

The law is limited to the years in which the employment relationship corresponds to the marriage, for which a portion of the forty per cent is calculated relative to those years (art. 12 bis, L. 898/1970).

In case of the death of the former spouse, in the absence of another marriage, the spouse that until now has received the maintenance allowance (not having remarried on their part), will have the right to the widow’s pension, as long as the employment relationship from which the marital compensation originates comes before the settlement for a divorce in Italy.

If in any case there is a surviving spouse with the requirements for the widow’s pension, the court would have to establish, based on the duration of the marriages as well, and the extent of the need, the amount to be handed out.

The separated spouse has the right to the widow’s allowance unless the separation has already been charged to them and that the court has not recognised their right to receive the allowance. 

Custody of the children

The last reform of shared custody has set out that for the good of the children, the best solution is that they be entrusted to both parents. The so-called “shared custody” grants parents an equal role in the upbringing of their children, even if they don’t all live under the same roof, the child will be resident at the house of one of the two parents.

It is always possible that sole custody be decided in some exceptional cases.

The parent who looks after the children for the most amount of time tends to be granted the family house.

Modifying the conditions for separation or divorce in Italy

The conditions established in the place of consensual separation, or in court, can always be modified.

It can happen that the situation of the ex spouses changes and that this should necessarily be ratified in court.

Even in the case of divorce in Italy they could for example change the amount of the divorce allowance or the conditions of the children’s custody.

Getting remarried in Italy. The custom of 300 days

In Italy an old custom is still in force by which a woman, before getting re-married, and once she has obtained a divorce agreement, must wait for at least three hundred days to avert potential cross-over pregnancies. Article 89 of the Civil Code says that:

“New marriages are temporarily prohibited.
The woman cannot enter into a marriage until three hundred days have passed since the end of the annulment or the end of the civil effects of the previous marriage. Cases in which the end of the previous marriage have been pronounced are excluded from the prohibition according to article 3, no 2, letters b) and f), of the Law of the 1st December 1970, no 898, and in cases in which the marriage was declared null because of the impotence of one of the spouses.

The court with the decree sent out in private, can authorise the marriage when the state of pregnancy is unequivocally ruled out or results from a ruling passed in law that the husband did not live with his wife in the three hundred days before the dissolution, annulment or termination of the civil effects of marriage.

The arrangements in subsections four, five and six of article 84 and of subsection 5 of article 87 apply.

The prohibition ceases from the day on which the pregnancy ends.”

In order to make peace with whoever feels discriminated against, the regulations can easily be circumvented, pending their definitive abolition.

The lawyers in our Divorce and Family Law department will be able to assist you on the journey to separation and divorce in Italy, responding to any requests you may have and clarifying any doubts.

You can contact them by filling in the request form here.

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14 Comments

  1. Avatar

    Hi there, I read the divorce process and I would like to ask some questions if it is possible. Originally I am Lebanese, I met my husband in Dubai which he is Italian and we got married in 2010 in the church in Dubai now we have 2 kids 8years and 4 years. After I lost my job in Dubai in 2017 I moved with my kids to Italy and my husband remained in Saudi Arabia as live and work there since 2016. He returned back to Italy in Dec 2017 and worked in Italy for 6 month till Jun 2018 and then he returned back to his previous job in Saudi Arabia. In Feb 2018 while he was still in Italy I found a love message on his mobile from his colleague. Since then I can’t trust him anymore, the problems became more and more unsupportable. Since I am living in Italy and he is living in Saudi Arabia the life become very difficult. Many times I asked him for divorce since he is delaying and finding excuses many times for not be moving us to Saudi Arabia and live all of us under one roof. I asked him few days ago to divorce. My question is I want to know if he will file for a separation or divorce; he must come to Italy personally and start the process or he can do all over the phone from Saudi to Italy? since he is not living in Italy, am I obliged to stay with the kids herr until the separation or the divorce take place and he remain living in Saudi or we must all of us leaving in one common country? does he has the right to keep me here in Italy and he stayed in Saudi? do I need to be prisoner in Italy with my kids until the process is done? what about the custody of my kids? Since I got married in Dubai will it be complicated? Your respond to my questions is highly appreciated. Best Regards, Coline

    1. Calogero Boccadutri

      Dear Madam,

      Thanks for your comment. You will receive our email with the next steps soon.

      Kind regards,
      Calogero

  2. Avatar

    Hi there,

    Good afternoon, we have a question.

    I am a Non- EUand my spouse is Italian, we got married in Ireland 2015 and separated in 2016 due to domestic violence.

    We are thinking to apply divorce in Italy due to long wait in Ireland, would this be possible? My spouse doesnt have a address in Italy anymore.

    Thank you

    1. Calogero Boccadutri

      Dear Madam,

      Thanks for your equiry.

      Kind regards,
      Calogero

  3. Avatar

    Hello, it was nice reading this article, but I have some questions to ask. I have been married with my wife for about 6 years now. We got married in Italy in commune, and we have two children, one is 6 and the other 3. We have been living separately for about 3 years now. Right now she leaves in Germany while I’m still living in Italy, we have both decided to go for devorce, since there is no love anymore, and she has found someone else that she want. My question is, how do we go about the devorce? And how long will it take? Thanks for your quick response.

    1. Calogero Boccadutri

      Dear John,

      Thanks for your comment. Our experts will contact you as soon as possible.

      Kind regards,
      Calogero

  4. Avatar

    Good day. I am from South Africa and married to an Italian. He no longer wants to stay married after just a few months. I asked him to wait until I have my citizenship then get divorced. He tells me to go stay on my own, threatening me that he has the power to send me back to my country without citizenship. I would benefit more from having citizenship than applying for work visa. My question: should he support me financially when I get out of his house because I cannot afford it? What are my legal rights or should I just bow down to him and do whatever he asks so that I can get citizenship. Thank you very much.

    1. Calogero Boccadutri

      Dear Asoen,

      Thanks for your comment. Our experts will contact you as soon as possible.

      Kind regards,
      Calogero

  5. Avatar

    Hello,
    I just read your divorce process and I would like to ask a question please,Am Nigerian and my husband is Italian I and my husband met in Dubai 2013 & got married 2016 in Dubai we have 2 beautiful kids ,all is well with us only until whenever his parents visit or we visit them in Italy.the issue is the Dad always want to make decisions for us always interfering whenever I have issues with my husband now am tired and ask my husband for a divorce he refused but not willing to speak with his parents to stop their interference in our business ,I admit I have anger issues trying to control it but can’t keep shut when they do.so my questions is how do I go about the process as he’s not willing to grant a divorce and not able to speak with his parents in other not to hurt them.we both leave in Dubai my husband has no Resident in Italy anymore.please your response will be much appreciated

    1. Calogero Boccadutri

      Dear Nancy,

      Thanks for your comment. Our experts will contact you as soon as possible.

      Kind regards,
      Calogero

  6. Avatar

    I got married in Rome, Italy 3 days ago and I’ve made mistake marrying my husband. We got married in the church in Italy, we both are Irish citizens living permanently in Ireland. I should have said no at the alter but I felt bad for my parents dragging them all the way to Italy for my wedding and calling it off last minute. Spending a fortune on my wedding with every last bit of my savings I pressured myself to marry him knowing we not gonna make it, I’m looking for divorce even better annulment but whatever way I can’t get out of this marriage. Is the fact I’m only married few days helps me to get out of this marriage fast ??? My husband announced the day after we got married he wants to use condoms coz he doesn’t want to have a baby with me telling me our relationship is not stable calling us getting married the biggest mistake of our lives. Please note that we discussed trying for a baby right after we get married and even started 2 weeks prior to our wedding, me coming off the pill last month. Would that qualify to get annulment since my husband now doesn’t want to have a baby with me? I’m devastated I’ve got myself into this and I’m in such a dark place of my life now, I really would appreciate your help and advice. I’ve no one I can talk to.

    1. Calogero Boccadutri

      Dear Joanna,

      Thanks for your comment. Our experts will contact you as soon as possible.

      Kind regards,
      Calogero

  7. Avatar

    Dear Mr Boccadutri
    I am a South African citizen and I am married to an Italian. I now have dual citizenship after 17 years of marriage . We have two children 6 and 12, and current living in the Netherlands for the last 7 years. We were married in South Africa but was that that time living in Italy. The marriage was register in Italy . We are married under community of property with article 177..
    He has a pension here for 7 years and he has a pension in the USA, because we lived there as well for 3 years, that I am aware of.
    We are now divorced since April under Dutch law but the assets still not separated according to Italian law and article 177.
    My question:
    Can I claim for the pension in the USA for the period during the marriage under Italian law?
    Can he withdraw money that he put into our home as Personal Money first and then split the remainder of the money between us?
    I pray that you can give me some solid answers.
    Thank you.

    1. Calogero Boccadutri

      Dear Thamandri,

      Thanks for your comment. Our experts will contact you as soon as possible.

      Kind regards,
      Calogero

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