7 Things You Should Know About Getting Divorced in Italy
Easy Milano sat down with Avv. Armando Cecatiello specialized in Family Law and author of A Mindful Divorce, who explained in simple terms some of the most important aspects of getting divorced in Italy. Studio Cecatiello favors Collaborative Practice and mediation.
The ideal ‘happily ever after’ is not the ending to every love story. People grow and change, and the struggles and challenges of life drive a wedge between a couple until they decide it is time to live separate lives. Sometimes it just doesn’t work out. As difficult as it may be, filing for divorce in Italy doesn’t have to be traumatic, and you don’t have to do it alone.
Avv. Armando Cecatiello, Family Law in Milan
Divorce in Italy is referred to as “divorzio” or “scioglimento del matrimonio” (dissolution of marriage), and falls under Civil and Family Law and is recognized by the law Fortuna-Baslini, n. 898 – “Discipline of cases of dissolution of marriage”, which only went into effect on December 1, 1970. Prior to this law, getting a divorce was fraught with difficulty as the governing authority was often the Sacra Rota, the Apostolic Tribunal, during a time when religious views of the sacrament were highly influential.
Definition of divorce in Italy
Divorce is defined as the dissolution or cessation of the civil effects of the marriage when the spouses demonstrate that they no longer have any reason, spiritual or material, to continue sharing their life.
The first step in getting divorced in Italy is to file a petition of separation with the court. Once the petition is filed, the court will set a hearing date. Before reaching the divorce, the spouses must register their legal separation during which they demonstrate that they do not cohabit.
The divorce application can be presented in court one year after the first separation hearing. At the hearing, both parties will have an opportunity to present their case, and the court will issue a final decision.
Once the divorce is finalized, both parties are then free to remarry.
1. When is it possible to ask for a divorce?
In Italy, both spouses have the right to file for divorce. The Italian Family Code guarantees this right to both men and women. There is no need to prove who is at fault in order to file for divorce in Italy. However, two conditions must be met.
Before declaring the dissolution of the marriage or the cessation of the civil union of marriage, the court must ascertain the existence of two conditions:
1) The end of the material and spiritual communion between the spouses, a subjective condition to be demonstrated by testimonial and statement, and
2) the existence of at least one of the following conditions, an objective condition determined by law.
a) that the consensual separation or judicial separation has been approved or pronounced and at least six months have passed since the appearance of the parties before the President following the consensual separation or one year.
b) that one of the spouses has been sentenced to life imprisonment or any prison sentence for particularly serious crimes;
c) that one of the spouses, a foreign citizen, has obtained the annulment or dissolution of the marriage in his/her country or has contracted a new marriage;
d) that the sex change of one of the spouses has been judicially declared.
2. Is a peaceful divorce possible?
Although it is possible to get a divorce in Italy without going through a lengthy and costly court battle, it is not always easy to achieve a peaceful divorce. The Italian legal system can be complex and slow, and getting a divorce in Italy can be stressful. However, Collaborative Practice is a solution that can make the divorce process go more smoothly.
Through Collaborative Practice, you can settle legal disputes without the involvement of a judge, magistrate, or other court personnel.
In order to lessen the strain on you, your kids, and your family as a whole during a divorce, Collaborative Practice unites a team of professionals (including attorneys, mental health experts, and financial advisors) who are committed to working with you in an atmosphere of safety and respect.
When using Collaborative Practice, all involved parties sign a participation agreement that lays out the specifics of the case with transparency and calm. Using this novel approach, the parties pledge to negotiate in good faith in order to reach an agreement.
3. How are assets and property divided?
Marriage automatically establishes property as shared assets (comunione dei beni) unless the separation of assets regime (la separazione dei beni) was declared and recorded in the Civil Registrar. Shared assets are assets acquired as a married couple. Assets owned by a spouse before marriage do not fall under shared assets.
When a couple gets divorced in Italy, their joint ownership of any property ends per Article 191(2) of the Civil Code. The President of the Court grants the parties’ request to live apart at the first separation hearing and divides the marital assets 50/50 between them. But the assets are not split up in a divorce.
Each spouse may request the division of assets held in common by initiating ordinary proceedings of division in accordance with the ordinary rules of jurisdiction. Asset division proceedings are distinct from the separation proceeding and will take place after its completion.
In Italy, if the division of assets and property during a divorce is not mutually agreed upon, they will be decided by the court. The court will carefully consider all the assets and property that each spouse has in order to determine how they should be divided. This includes any real estate, savings accounts, investment accounts, and any other property or debts that either spouse may have.
4. How is alimony calculated?
The Supreme Court’s new interpretation of Article 5 of Law no. 1 (July 2018) divorce allowance requires a “composite” criterion thus eliminating “standard of living” as the divorce allowance recognition criterion.
Divorce allowances are based on marriage standards and principles of equal dignity. Therefore, each couple must weigh how much each member has contributed to the family’s assets, not just financially, and consider that the contribution made to the conduct of family life is the result of common decisions by both spouses, free and responsible, which can also have a profound impact on the economic profile of each of them after the end of the marriage.
To determine alimony and child support, out-of-court settlements through a family lawyer are faster and less traumatic for all involved.
5. How is child custody determined?
In Italy, child custody is generally determined by the court. The court will consider a number of factors when making a determination, including the child’s age, the child’s wishes, the parents’ wishes, and the child’s best interests. Once a custody determination is made, it is typically final.
If the parents can agree on how to raise their child, the judge will uphold that decision and focus instead on the child’s placement, residence, and visitation schedule. If the parents can’t agree on how to divide their time with their child, the court will do it for them, effectively severing the child’s daily life into two separate but equal parts.
Judges in Italy rarely award sole custody to one parent and doing so usually requires compelling evidence that doing so is in the child’s best interests. Even if one parent is awarded sole custody, the other must be included in and given input on major decisions involving the child.
Children have rights too. The Charter of Children’s Rights in the Separation of Parents is divided into ten points, ten rights – from the right to continue to love and be loved by both parents and to keep their affections, to the right to be heard and to express their feelings.
6. Are prenuptial agreements standard in Italy?
Prenuptial Agreements are not standard in Italy, but more and more couples take them into consideration. The Italian law does not provide for them and the Church has always expressed opposition. Prenuptial agreements are a hot topic of debate in Italy and opinions are divided. On the one hand, signing an agreement in advance may jeopardize the relationship, however having an agreement signed before the marriage would allow the spouses to regulate the distribution of their resources, any maintenance allowances, the fate of their property and care of their children.
Prenuptial agreements can be considered a tool aimed at avoiding disputes, but also a precious means of assuring equal dignity.
7. What are the rights of same-sex partners in Italy?
In 2016, the Cirinnà law made same-sex civil unions possible in Italy, legally recognizing same-sex relationships and opposite-sex cohabitating partnerships. Civil unions do not offer the same obligations and rights as marriage and therefore are handled and treated differently by the courts.
In the event of a breakup, the dissolution of a civil union can be requested at the Town Hall Civil Registrar (all’ufficiale di Stato civile del Comune), either together or separately.
After three months, during which the couple has the right to change their minds, they can file for a divorce. The purpose of the divorce application is to decide the separation of property, child custody or alimony. Finality can be achieved by joint application at the town hall, by joint appeal at court or through negotiation assisted by lawyers.
The circumstances of each divorce or dissolution of a civil union are different and unique. It is best to consult an expert to discuss your distinct case and experience.
Answering Your Questions About Family Law in Italy
The Studio Cecatiello website has an extensive library of questions and answers about family law, adoption, children’s rights and protection, property law, power of attorney and divorce law in Italy.
Studio Cecatiello specializes in Family Law in Italy covering
a range of issues such as Family Mediation, Property & Heritage Rights,
Separation, Divorce, Child Custody & Care, Paternity Rights and much more.
Studio Cecatiello Family Law Firm
Via Giuseppe Sacchi, 3 20121 Milan, MI
MM Cairoli Castello
Phone: +39 02.720.22.862
Fax: +39 02.890.16.054
By appointment only. Languages spoken: Italian, English, French.
Easy Milano is the online publication for the international community of Milan. We offer practical tips, key information and essential insights about living and working in Italy. Easy Milano has been assisting English speaking expats in Milan since 1999.
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