Judgment number 28727/2023, dated October 16, 2023, of the Court of Cassation clarified the implications of the Cartabia Reform for separation and divorce and outlined the new concept of "instantaneous divorce."
It was the first time the Court of Cassation had the opportunity to express its opinion on the application of the Cartabia reform, which came into effect on February 28, 2023.
In particular, it clarified how it is possible to merge separation and divorce into a single act even when the spouses are in agreement (consensual separation and divorce). Separation and divorce remain two separate entities, but once separation is obtained, in the presence of agreements already reached regarding divorce, the judgment certifying separation will precede that of divorce, without the need to file new requests in court.
The Court of Cassation changed the jurisprudential orientation of the lower courts, stating that the merging of the two procedures of separation and divorce is applicable even to joint proceedings, where the spouses have chosen the consensual route for both separation and divorce.
Simultaneously, it put an end to the disparity in judgments, re-establishing a uniform criterion of interpretation of Article 473 bis No. 49 of the Civil Procedure Code.
How to obtain an immediate divorce?
Can parties really get a divorce immediately when filing for separation, or should they still wait for the separation to be recognized?
Although technically it would be more accurate to speak of an "automatic divorce," in light of the innovations introduced by the Cartabia Reform, the term "instantaneous divorce" is gaining ground, as if filing a request for separation and divorce simultaneously could allow an immediate divorce.
Obviously, this is not the case.
It is not about getting divorced in a single hearing but being able to present the two requests, for separation and divorce, concurrently, addressing all relevant issues immediately to save a second court appearance. For cases of consensual separation, the usual 6-month waiting period still applies.
According to judgment 28727: "concerning family crisis within the procedure under Article 473-bis.51 c.p.c., the spouses' joint application with combined requests for separation and dissolution or cessation of the civil effects of marriage is admissible."
The legislative decree no. 149 of October 10, 2022, introduced the possibility of filing separation and divorce requests simultaneously, while the second request remains admissible only after the legally prescribed period has elapsed (6 or 12 months, according to the divorce law's Article 3).
The Court of Cassation deemed "admissible the consolidation of requests for separation and dissolution or cessation of the civil effects of marriage in the case of cumulative submission of the same requests consensually."
According to the Court, "no reasons justify a disparity in treatment between contentious and joint applications."
The Cartabia Reform Dilemma: The Cumulative Request of Separation and Divorce
The issue of the cumulative request, in a simultaneous process, of requests for separation and divorce had already found contrasting solutions in the lower court's jurisprudence since its entry into force on February 28, 2023 (the rule applies to proceedings initiated thereafter).
The Cartabia Reform states: "in the introductory acts of the personal separation procedure, the parties can also request the dissolution or cessation of the civil effects of marriage and related requests."
Furthermore: "requests submitted in this way are admissible after the term prescribed by law has elapsed, and after the judgment declaring personal separation has become final."
Before the Cassation's favorable ruling on the cumulative request, Italian court judges found themselves applying the new rule, essentially divided between two different orientations:
- In favor to the admissibility of combining separation and divorce requests in non-contentious proceedings
- Against the admissibility of consolidation, as this option was reserved by law for contentious proceedings only.
Prejudicial Referral by the Trial Court in Treviso
The Cassation's judgment originated from a request for intervention, known as a prejudicial referral, made by the Treviso Court.
The specific doubts concerned the correct application of Article 473 bis 51 of the Civil Procedure Code, which allows spouses to jointly file requests for separation and divorce.
The couple who appeared before the Treviso Court had, consensually, requested their personal separation and, consequently, the arrangements for custody and placement of their minor daughter and the non-custodial parent's financial contribution, both for the minor daughter and the financially dependent adult son.
Along with the separation request, they had asked the Court to pronounce, "after the period of time prescribed by Article 3 of Law No. 898/1970 has elapsed and after the judgment declaring personal separation has become final, the dissolution or cessation of the civil effects of marriage on the same conditions requested for personal separation," instructing the civil registry office to annotate the judgment.
Law No. 206 of 2021 allows the lower court judge to directly submit decisions on legal issues to the Court of Cassation, seeking a resolution to the question. In this case, a prejudicial referral was made to the Court of Cassation by the Treviso court when faced with a question:
- Exclusively of law;
- New, haven't been addressed yet by the Court of Cassation;
- Of particular importance;
- With serious interpretative difficulties;
- Likely to arise in numerous disputes.
Therefore, the decision was referred to the judge of legitimacy (judge of the Court of Cassation) who was able to provide an opinion on the consolidation of separation and divorce requests.
After the Cartabia reform, there was a controversy within the legal doctrine and jurisprudence, necessitating a uniform interpretation. When asked to give an opinion on the matter, the Treviso Court, in light of these considerations, deemed it appropriate for the Court of Cassation to establish the legal principle to avoid the "persistence of discordant lower court jurisprudential trends."
As emphasized by the Cassation judgment itself, "the legal principle stated by the Italian Supreme Court, pursuant to Article 363 bis c.p.c., is not limited to a mere opinion but binds the decision of the lower court judge who raised the question and all judges intervening in the same proceeding."
How Instantaneous Divorce Came About?
In recent years in Italy, there has been a true revolution regarding separation and divorce.
The possibility of merging the two procedures aims to conclude the divorce process as quickly as possible, ensuring that the time taken to decide on separation suffices to extend that decision to divorce.
Before the reforms, divorce was seen as a slow ordeal, draining financial resources and prolonging tensions between those destined to become ex-spouses but who never saw the long-awaited day arrive.
Italians are the only ones in Europe subjected to a double "process" before they can definitively end their marriage.
Statistics show that the vast majority of separated couples do not reconcile; thus, the purpose of separation, attempting to salvage a relationship between spouses (destined to end anyway), proved to be quite unsuccessful.
One consequence of the difficulty of divorcing quickly was the emergence of a thriving "divorce tourism" industry, with many couples traveling to Romania, Spain, France, and England, willing to spend a lump sum to avoid exhausting courtroom battles.
Italy's countertrend in recent years regarding divorce, moving toward an earlier closure of marriage, although without giving up the separation period, is already changing things.
This was seen with the Quick Divorce, introduced in Italy by Law No. 55 of May 6, 2015, which had already reduced divorce times from three years to six months, in case of agreement, or one year without agreements, and even earlier with the small revolution of Easy Divorce, as the decree-law No. 132 of September 12, 2014 (converted into Law 162) was called, which introduced the possibility of using "assisted negotiation" to divorce, without going through the court.
How to File a Combined Request for Separation and Divorce?
The request must be filed with a petition, and both spouses must present their evidence and documents illustrating their financial status before the judge:
- Income tax returns for the last three years;
- List of owned properties and company shares;
- Bank and financial account statements.
If omissions or false statements are discovered, there is a risk of being ordered to pay legal fees and compensate the other spouse.
The Family and Divorce Law Department of Boccadutri International Law firm will answer your questions regarding separation and divorce and guide you in choosing the best strategy to face the stress of separation from your partner, fully protecting the people involved, especially your children.
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.
