HOW TO DIVORCE IN ITALY? 1. What can I do to obtain a divorce in Italy?

The law provides for absolute grounds for divorce , which are necessary though not sufficient conditions for a divorce to be granted. Using powers of assessment that may vary in scope, depending on the specific grounds for divorce, the court must establish that the marriage has broken down irretrievably, which is the common basis of all grounds for divorce. These checks are necessary even if parties lodge a joint application for divorce. The agreement of the spouses is not in itself a ground for divorce (and thereforethere is really no such thing in Italy as a divorce by mutual agreement); the court must always establish the facts underlying the application before granting a divorce. The court will dissolve marriages concluded under the Civil Code or release the couple from the civil effects of matrimony if the couple were married in church and the marriage was duly recorded in the register of births, marriages and deaths. The Public Prosecutor must be involved.

2. What are the grounds for divorce? Either of the spouses may apply for divorce:
1.where, after the wedding has taken place, the other spouse is found guilty by a court

of any particularly serious offence, which may or may not have been committed prior to the wedding, (i.e., a. for any offence carrying a sentence of life imprisonment or imprisonment for more than 15 years, possibly as a result of multiple sentencing, for premeditated offences, apart from political offences and offences committed on specific moral or social grounds; b.for any offence carrying a custodial sentence for incest or violent sexual offences; c.for any offence carrying a custodial sentence for murdering the spouse's child(ren) or for attempted murder of the spouse or their child(ren); d.for any offence carrying a custodial sentence, where the person has been found guilty on two or more counts of grievous bodily harm, failure to fulfil family support obligations, abuse in the family or of minors or circumvention of an incapable harming the spouse or their child(ren), except where the applicant for divorce has been convicted on conspiracy or where it has been established that they are again living together); 2.in cases where: a.the other spouse has been acquitted of the offences of incest or sexual violence mentioned in points 1b) and c), where the court establishes that the respondent is unfit to maintain or restore the community of family life;

b.the couple have been legally separated or separated by mutual consent

for at least three years since they appeared before the court in the separation proceedings; c.the criminal proceedings regarding the offences listed under points 1b) and c) were discontinued because the offence was statute-barred but the divorce court establishes that the offences in themselves are still punishable; d.the criminal proceedings regarding the offence of incest have been concluded with the judgment that the offence is not punishable; e.the other spouse, a non-national, has obtained an annulment or dissolution of the marriage or has entered into a new marriage abroad; f.the marriage has not been consummated; g.one of the spouses has officially changed sex, in which case the application for divorce may be submitted by the person who has changed sex or the other spouse. Basically, apart from the "criminal-law" scenarios (which include, in addition to convictions for serious offences, cases where the person is acquitted on the grounds of diminished responsibility, the statute-barring of an offence or the lack of objective grounds to impose penalties in the case of incest), grounds for divorce are legal separation; annulment, dissolution or a new marriage entered into by the other spouse abroad, non-consummation of the marriage or sex change.

3. What are the consequences of a divorce as regards: a) the personal relations between the spouses? Relations between the spouses: The granting of a divorce entails:
firstly, the dissolution of the conjugal ties, whereby the spouses again

become single and are thus able to remarry; the woman loses the surname she had added to her own; however, on application, the court may allow the woman to retain her husband's surname in addition to her own, where there is an interest on the part of the applicant or of children in their parents' custody. It does not break the ties of affinity, and in particular it does not set aside the impediment of direct affinity ; foreign spouses do not lose citizenship acquired following the marriage. b) the division of property of the spouses? The division of property of the spouses: The divorce dissolves the joint estate (which includes all purchases made by the spouses jointly or separately during the marriage, apart from the personal items listed in section 179 of the Civil Code) and the patrimonial estate. However, where the children have not reached the age of majority the estate continues to exist. It has no effect on ordinary ownership (for example, goods acquired pro quota prior to the marriage or during the marriage where the estates are separated), which may be dissolved on application by one of the spouses.

c) the minor children of the spouses? Parental responsibility: The court granting the divorce also awards custody of the children to to both parents jointly or alternately, or - where it is deemed to be in the child's interests and there are serious reasons, only to one parent; it lays down rules regarding visits by the parent not awarded custody. It gives instructions regarding the administration of the children's estate and sets the contribution towards maintenance to be paid by the parent without custody. It is preferred to grant the right to live in the family home to the spouse to whom custody is awarded. d) the obligation to pay maintenance to the other spouse? Obligation to pay maintenance: When granting the divorce the court, in response to an application by the party, orders regular payment of maintenance to the spouse who does not have sufficient means or cannot objectively procure them. The obligation to pay maintenance ceases if the recipient remarries. Where both parties agree, the divorce settlement may also be made in a single transaction by transferring the ownership rights to a property to the benefiting spouse. Other effects: Spouses who have divorced but not remarried and are entitled to divorce settlements are also entitled to a share of any severance payment made to other spouse. In the event of the death of the former spouse, the surviving spouse is entitled to receive any transferable pension or to share the pension with any subsequent surviving spouse and to inheritance, where the person in question is in need. The law also allows the spouse entitled to the settlement to take out judgment mortgages or apply for the seizure of the assets of the spouse required to make the settlement. Failure to maintain the spouse or children: It is a criminal offence for a spouse to fail to maintain his/her spouse and/or their children. 4. What does the legal term legal separation mean in practical terms? Legal separation means that the law no longer requires them to live together. De facto separation is without effect (except in situations arising prior to Reform Act No 151 of 1975). Separation does not have any effect on the conjugal relationship apart from the fact that it weakens the ties. Legal separation may be by order of the court or by mutual consent. Sources: The substantive rules are set out in the Civil Code (sections 150 et seq.; on questions regarding inheritance see sections 548 and 585 of the Civil Code). 5. What are the conditions for legal separation? Legal separation presupposes the establishment of facts that would render the continuation of married life intolerable or have a serious and damaging impact on the upbringing of the children. The application may also be made by the spouse responsible for the situation.

After application by the party, where the circumstances so require, the court decides who is responsible for the separation (in this way the 1975 reform act replaced the previous attribution of guilt, abandoning the principle of penalty based on guilt and introducing the principle of remedy for a situation where co-habitation is intolerable or would be harmful to underage children). Responsibility (application for which may be made only in the separation ruling) is of significance when making the maintenance settlement and for questions relating to inheritance. The Public Prosecutor must be involved. Separation by mutual consent is based on agreement between the spouses but becomes effective only with the approval of the court, which is responsible for checking that the agreements reached by the spouses respect the family's prevailing interests. In particular, where an agreement regarding the custody and maintenance of children is not in the children's interest, the court recalls the parties and sets out the changes needed. Where the solution is unsuitable, the court may refuse to grant its approval. Case-law has established that the presence of the Public Prosecutor is not necessary, if minors are not involved. 6. What are the legal consequences of legal separation? Personal relations: legal separation or separation by mutual consent sets aside the requirement for all forms of assistance required where a couple is living together; there is no longer any presumption of paternity. The woman does not lose the husband's surname that had been added to her own, but at her request the court may forbid its use where such use may cause serious injury, and may also allow the wife not to use the name where such use may be to her detriment. The division of property of the spouses: Separation dissolves the joint estate. Parental responsibility: the court granting the separation rules on the custody of the children and establishes the amount of maintenance that must be paid for the child by the parent to whom custody is not granted. It is preferred to grant the spouse to whom custody is awarded the right to live in the family home. Obligation to pay maintenance: If requested, the court grants the spouse not responsible for the separation the right to a maintenance settlement from the other spouse, if he/she does not have sufficient independent means. The spouse in need is still entitled to receive maintenance payments, i.e. a regular sum needed for subsistence, even if he/she is responsible for the separation. Case law has held that separation settlements should be automatically adjusted, in the same way as expressly applies to divorce settlements. The measures regarding the custody of the children and the calculation of the settlement (for the spouse and children) may be amended. Failure to make the maintenance payments is an offence under section 570 of the Criminal Code. Separation with and without responsibility: Separated spouses who are not held responsible for the separation continue to enjoy the same rights of inheritance as spouses who are not separated.

Spouses held responsible for a separation are entitled to maintenance only if they are entitled to maintenance payments from the deceased spouse when the inheritance proceedings are opened (sections 548 and 585 of the Civil Code).

6. Are there alternative non-judicial means for solving issues relating to the divorce without going to court in Italy? There are no provisions for alternative methods of solving issues relating to divorce (or separation). 7. Where should I lodge my application (petition) for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? The proceedings take the form of a special investigation procedure that is governed by different rules from those governing ordinary proceedings, particularly in relation to the preliminary stage. Jurisdiction: The court sits as a "bench" at the defendant's place of residence or domicile or, where the defendant cannot be traced or resides abroad, at the applicant's place of residence or domicile. Where both parties live abroad, any court in the country may hear the case. Where divorce is by mutual consent, the spouses may choose the place of residence or domicile of one or the other. Proceedings: The petition for divorce takes the form of an application which is lodged with clerk's office of the court with jurisdiction. The notifying documents should be annexed to the application but may also be produced at the hearing. The applicant is responsible for ensuring that the other spouse is notified of the application and the order of the presiding judge setting the date for the hearing of the spouses. If the attempt at reconciliation during the hearing before the presiding judge is unsuccessful, the presiding judge will issue interim orders in the interests of the spouses and their children and set a date for a hearing before the examining judge, who will examine the case in accordance with the rules governing investigative proceedings. Divorce by mutual consent: A joint application presumes that the spouses agree to divorce and the subsequent conditions regarding their children and financial relations. The proceedings are simplified.
(References: italian civil code, italian civil procedure code, european judicial network in civil and commercial matter, L.898/1970,L. 19/01/1975 n.151, L. 31/01/1995 n. 218). Information on this article is only intended as general summary information for readers in Italy. It is not intended to provide specific legal advice. (Information resources are designed to help users better understand the legal system.) Individuals are urged to consult with qualified legal professionals.

Studio Legale Cecatiello is in Milan Via Carducci 12. It was founded by Avv. Armando Cecatiello. The location is in Milan but the activity counts on a network of contacts and correspondents working in Italy. The firm corresponds in Italian and English. Studio Legale Cecatiello, Via Carducci 12 20123 Milano Italy. Tel. 0039.02.72022862 - fax 0039.02.89016054 www.cecatiello.it studio@cecatiello.it