- Written deductions
- Separation and Judicial Divorce: Single Rite
- Judicial Separation and Divorce in The Presence of Children
- Married Couples and de facto Couples
- The Provisional Urgent Measures in Case of Danger
- The Single Family Court
The Cartabia Reform, named after the former Minister of Justice and former President of the Constitutional Court, Marta Cartabia, has provided important changes for separation and divorce with regard to timing and consequences.
The new rules will apply to all proceedings introduced as of March 1, 2023.
In general, the reform aims to speed up trial times (civil and criminal), intervening both on certain aspects of the process as well as of its digitalization.
On the Family Law level, the intent is to protect children and victims of violence, in the context of consensual or contentious separations and divorces in the Court.
There will be changes on how to request separation, the approach to hearings by all parties involved, and the focus on the children involved.
In order to speed up time, the spouses are asked, to file written deductions, i.e., defense briefs, and to submit them by the first hearing, giving the plaintiff an opportunity to respond to the respondent’s allegations prior to the first hearing.
Through this submission should dispense with a whole series of findings that judges are forced to have in order to secure the real motives and intentions of the soon-to-be ex-spouses.
Separation and Judicial Divorce: Single Rite
Separation and divorce, in court, will be discussed with a single rite, in a single act and before a single judge, as specified in the amendments made in the Code of Civil Procedure, by Article 3, paragraph 33, Legislative Decree 149/2022.
Previously, in case of lack of agreement between the parties, divorce, and judicial separation, provided for two stages: summary (or presidential) and preliminary.
The reform abolished the presidential hearing and stipulated that the first document, i.e., the one that starts the proceedings, must be complete when it is filed.
The case will no longer have two stages, but there will be a single proceeding that begins with the filing of the introductory documents (narrative of the facts that led to the end of the marriage and evidence gathered).
The “file” will have to include documents testifying to the spouses’ asset situation for the last three years, i.e., income from work, assets owned (real estate, vehicles, company shares, bank and financial statements, …), any claims for child support and/or custody, and requests for charges.
The hearing must be scheduled within three days of the filing of the appeal and must not exceed a waiting time of ninety days.
At the first hearing, the investigating judge, who should have already viewed all the documents submitted and have a thorough knowledge of the situation, will attempt to reconcile the spouses.
In the absence of any agreement, it shall take provisional and urgent measures which may concern:
- child custody;
- placement of minor children;
- assignment of the marital home;
- time and manner of permanence of the children with the non-placement parent;
- monthly child allowance;
- possible spousal maintenance allowance.
These orders, being urgent, become enforceable during the case, but as provisional they may always be subject to modification, and thus be revocable or appealable.
In order to proceed with the single procedure, the “no cohabitation” between the spouses will have to be uninterrupted.
Territorial jurisdiction will be given to that of the court of the place of residence of the children, alternatively, to that of the respondent (the one who receives the request for separation/divorce).
The divorce will always follow the partial separation judgment, but the same judge will handle both proceedings.
As the timeframe is ideally bound to shorten, the assistance of a competent attorney regarding the documents to be filed becomes prerequisite.
Judicial Separation and Divorce in The Presence of Children
The reform introduces a more judicious and articulate form of organization that anticipates parents’ intentions in the event of judicial separation and divorce and aims to protect minor children: the parenting plan.
The Parenting Plan
Couples with minor children will have to compulsorily file a parenting plan, i.e., an outline of their children’s daily commitments and activities, based on the current situation.
It must contain the following information: commitments, daily, sports, school, and extracurricular activities; educational path; attendance; and vacations.
The information should refer to the matrimonial period, and the parents should also indicate how, each of them intends to ensure the performance of activities, once separated.
The parenting plan is mandatory. It allows the judge to get an idea of the children’s lifestyle and what both spouses can guarantee. This will then be instrumental in deciding where to place the child and how to handle the other parent’s visitation rights.
The court will be vigilant to ensure that the plan does not remain only on paper: the parent who does not comply with the commitments made, through the accepted parenting plan, would face fines (fine of up to 5,000 euros).
Penalties are also expected if omissions or misrepresentations on asset situations are found, with the aim of not paying what is due for the children.
Hearing of Minors under the Age of 12
Another important change concerns minors under the age of 12, capable of discernment, who up to now have been heard only in exceptional cases and instead will always have to be heard in connection with custody orders affecting them.
The hearing could take place in the courtroom, but assisted listening could be carried out in protected environments through mediation figures (psychologists first and foremost), especially in cases when it is required by the child’s age or characteristics. This will make it possible for the judge to adjust his or her decisions to the actual needs of the children.
Married Couples and de facto Couples
Under the reform, married couples and de facto couples will be treated the same, so that even those who separate, without first having been married, will have recourse to a single judge to apply for child support and alimony to the former cohabitee.
The proceedings for custody of children born out of wedlock will also be identical, with the parties required to draw up a parenting plan, and to indicate in advance the property and income conditions.
The Provisional Urgent Measures in Case of Danger
Urgent measures will be taken in case of danger, even before it is established. The legislature has provided a specific procedure in cases of domestic violence.
In doubt, potential victims are not left in danger.
The opposing party will be summoned later, within 15 days of the order, to be able to present contrary testimony or evidence, to attempt to revoke or modify the order issued on an emergency basis.
Other Types of Provisional Measures
Provisional measures could also cover:
- The mortgage registration and seizure of movable and immovable property, against the debtor parent;
- The seizure of receivables to fulfill the provisional measures against the debtor spouse;
- The notification of the maintenance order to third persons, who periodically pay sums of money to the obligor (primarily the employer), to check that he or she does not shirk his or her duties.
The Single Family Court
By October 2024, the Single-Family Court i.e., a court for individuals, juveniles, and families will be settled.
It will be a central district court that will report to several district courts.
Juvenile courts are not being abolished but transformed to deepen work according to specialization.
The reform is expected to give a constructive impetus to the simplification and speeding up of separation, divorce, and child custody cases, especially for those who cannot help but turn to a Court.
Our lawyers within the Family Law Department of Boccadutri International Law Firm will be able to assist you according to the new procedures under the Justice Reform.
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