Italy: A Guide To Divorce In Italy

Last Updated: 1 June 2017
Article by Calogero Boccadutri

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Above all, the obligation to live together is no longer applicable, you are no longer held to fidelity and the legal sharing of property terminates.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 content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Boccadutri International Law Firm
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Boccadutri International Law Firm
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions