Separation in Italy represents a temporary suspension of some of the obligations arising from marriage and its civil effects. In the legislator’s intentions they ought to give the couple time for attempted reconciliation.
The Treccani dictionary defines separation as follows:” the institution that determines the loosening of a matrimonial bond without dissolving it entirely.”
In the case that the two partners (hereafter the parties/ the spouses) decide to go their separate ways, they may first resort to separation. The rules governing divorce (898/1970 and developments) also regulate the separation of partners.
The separation in Italy is seen as a temporary situation that carries consequences for the marriage. In particular, certain bonds of the marital relationship loosen until reconciliation or divorce is achieved: the obligation to live together and to be faithful are revoked and the joint ownership of property is dissolved.
Separation in Italy has a minimum duration, but in theory has no defined end point.
There are three different types of Separation:
- “De Facto” Separation is to all intents and purposes a “private” agreement between two people who decided to stop living with each other and to put their marriage “on pause”.
- Consensual Separation is the legal process which allows partners, following mutual agreement on children, housing and finances, to suspend their marriage for a short period of time.
- Judicial Separation is a procedure proposed by both partners, or even by one of the two partners, in the case of a lack of agreement of the terms of the separation.
De Facto Separation
de facto separation has no judicial effect, although it is legally entirely legitimate, it could, however, bring consequences for those who abandon their marital home or violate the obligations of moral and material support and/or of fidelity. It does not constitute a valid prerequisite for the beginning of the time limit required for obtaining a divorce.
In a de facto separation some fundamental aspects should be taken into account, agreement should be found on:
- Maintenance. In the case that one of the two parties is not in a position to provide for their own needs and/or of their children, a periodic contribution will be established to correspond to that need.
- Placement of children. In the case of the presence of children, it is necessary to decide where they will live and in what way they will be able to see the other parent who no longer lives with them.
- Division of parenting costs. It should be specified who shall provide for the ordinary and extra-ordinary child-related expenses and how this shall be achieved.
- Division of domestic expenses. It should be decided who will be able to stay in the family home and who should pay the bills.
- Division of property. To take into consideration the transfer of real estate property or other assets owned by both partners.
Separation by mutual consent allows spouses, who have managed to agree on all the conditions, to separate quickly. Having already agreed on children, home, economic matters, and property issues, all that remains is for them to legally ratify the agreement.
In the event that the two partners agree to a consensual separation, one of the following three cases can occur:
Separation in court (or together)
The spouses file a joint petition before the judge, setting out the terms on which they have decided to separate. The separation agreement must provide for the possible payment of a maintenance allowance to the weaker spouse, the division of property (if there is co-ownership of property), the custody and placement of children, as well as the terms of their maintenance, and the assignment of the family home.
The agreement is brought before the president of the competent court for approval.
The court arranges a hearing for the partners with the President of the court.
The spouses appear at the hearing to confirm that they wish to proceed with the separation in accordance with the document filed and refuse the attempt, which is mandatory, at reconciliation.
If the parties find that the agreement is reasonable and appropriate for the offspring, the case may proceed.
The court approves the separation agreement.
The six-month time limit after which divorce can be sought begins after the hearing.
Separation via assisted negotiation
The spouses may decide to use lawyer-assisted negotiation, a measure introduced by Decree Law No. 132/2014. Through their respective lawyers, they agree on the terms of the separation.
The lawyers themselves, as public officials, authenticate the “Assisted Negotiation Agreement“.
The agreement is then sent to the office of the Public Prosecutor with jurisdiction over the territory.
In the case that the couple have minor children or adult children who are incapacitated or severely handicapped, this step must take place within ten days. In turn, the Prosecutor, if he does not deem it fit, will have five days to declare its inadequacy to the President of the Court who will have to schedule a hearing at which the parents will appear.
In the event that everything is in order, the Prosecutor’s Office will issue the agreement.
Separation through assisted negotiation has the advantage of reducing the waiting time to as little as two months.
Separation at the Comune
The partners, in absence of minor children who are severely handicapped or otherwise incapacitated (law n. 104 of fifth February 1992), may sign a request for consensual separation without legal assistance in front of the mayor, as the registrar of civil status, at the Comune where at least one of the parties is a resident, or at the Comune where their marriage was registered.
The act containing the agreement may be drawn up and signed after the declaration of both parties.
There is an obligatory delay of 30 days between the filing of a separation request and its issue, this is a useful time period for reflection and reconsideration. After this, the parties may reappear in front of the registrar of civil status to confirm the agreement.
Failure to confirm at this point will lead to the revocation of the agreement.
In the case that the partners are unable to find agreement on the conditions of separation, judicial separation is appropriate.
If there is no agreement between the spouses and living together becomes intolerable or one of the two spouses is unavailable, the separation application can be made by one of the two partners.
This detached process is defined as “judicial separation”, the final measure requested is the result of a civil litigation procedure: a sentence that orders the personal separation of the parties.
Judicial separation cases are always taken to court.
The court must be that of the city in which the couple were most recently residents. Alternatively, if the request is made by only one of the partners, it may be made in the court of the city in which they live or have residency.
The Process of separation in court
- An application for separation is filed through an appeal.
- The appeal is granted.
- The President of the Court establishes the date of the hearing by decree, within five days of the filing of the appeal.
- Presidential hearing: this is the hearing at which the spouses appear before the President of the Court (or before a judge delegated by him) in the initial phase of the separation process. Its purpose is to bring the parties to an agreement and to issue those “interim measures” that may then be confirmed by a subsequent sentence.
- Preliminary phase: once the measures have been adopted, the president refers the case to another judge, who is responsible for supervising the evidence and continuing the trial. It ends with a separation sentence that can confirm, change or revoke the presidential measures.
- The separation sentence puts an end to the proceedings.
In the case of judicial separation, it is possible to request that the other party be given a separation charge. The charge has a sanctioning function, in other words, it is a way of punishing failure to comply with marital obligations.
The most common charge occurs when obligations of fidelity are violated, but infidelity is not the only motive that may govern a charge request. The abandonment of the sick spouse would negate the obligation for moral and material assistance, just as indifference would negate the obligation to cooperate in the interest of the family, the abandonment of the marital home would negate the obligation to cohabitation. Physical violence or the imposition of a religion would obviously violate rights that are independent of marriage.
During the lawsuit evidence may be provided (photographs, videos, messages, e-mails, testimonies, …) to support the alleged failings of the other spouse as well as the argument that the referenced behaviour caused the marital crisis that in turn led to the separation.
It is up to the judge to ascertain whether or not there are sufficient grounds for a charge, for example in the case of infidelity, this must have been before the request for separation. The court may issue a “sentence of separation by charge.”
In some instances, the judge may decree a “double charge”, if both of the partners make a charge request against one another, even if the charges were made for different reasons.
The consequences for the partner/s charged with the separation are:
- Loss of right to ask for a maintenance allowance
- Loss of any right to inheritance in the case of the death of the other partner
- Possible sentence of compensation for damages incurred by the other spouse.
It is important to note that, in the case of consensual separations (in whatever form), even if in the presence of serious cases of rupture that can be attributed to one of the two partners and that could be considered as detrimental to the continuation of the marriage relationship, it is not possible to ask for a charge, even in the latter stages of the divorce and even if you decide to proceed with a contentious divorce.
Fast-track divorce in Italy
Divorce in Italy can be a relatively fast process if the separating parties are able to come to an agreement or if there are serious motives for seeking divorce.
AccordIng to the new divorce law 55/2015, known as the “Fast-track” law, which came into force on May 26, 2015 to regulate divorce in Italy, six months or twelve months must elapse before a divorce can be granted, depending on whether a consensual or judicial separation has been chosen.
The separation period begins from the day when the court authorizes the spouses to live separately.
The previous procedure required at least three years of separation before divorce was possible. For this reason, in reference to the reduction of time, the new divorce legislation is called “short”.
Consequences of Separation in Italy
Following separation, the parties are no longer bound by the obligations of cohabitation and fidelity, even if they do not lose the status of spouses.
Maintenance of the Spouse
In some cases, there is an obligation for the financially stronger spouse to support the weaker party with maintenance payments.
In the case of a separation ruling with charge, the maintenance allowance will not be provided, although a spouse may be entitled to maintenance if they are able to prove a need.
Custody of Children
Since the introduction of Law n.54/2006, “Provisions on separation of parents and shared custody of children”, the approach has been to entrust minor children to both parents. Alternatively, a decision is made whereby the child is entrusted to one of the parents and an agreement is reached about division of time between the two parents.
Each parent is obliged to contribute to the maintenance, care, education and upbringing of any children. In case of disagreement, the judge shall be responsible for any decisions.
Maintenance of adult children
The court may order the payment of a periodic allowance from the parents in favour of children of legal age who have not yet attained economic independence from their parents for reasons that are not attributable to their indolence.
Allocation of Family Home
The use of the family home, if there is no relating agreement between the two spouses, is attributed to one of the spouses, primarily taking into account the interests of any children. If you are in a situation of legal co-ownership of property, this becomes null and void, regardless of the type of separation chosen.
For any assistance regarding separation and divorce, you can contact the lawyers of the Boccadutri International Law Firm Family law department.