Amicable separation and divorce in Italy: What does amicable separation mean?
The expression amicable separation in Italy refers to cases in which two spouses reach an agreement on how to arrange their future property and non-property relations once their cohabitation ends.
The agreement usually covers the following main areas:
- child custody and habitual residence, as well as the right of access for non-custodial parents;
- possession of matrimonial home;
- contribution to child or spouse maintenance;
- other property matters.
From an economical viewpoint, as well as from the viewpoint of child protection, amicable separations in Italy are regarded as preferable to judicial separations, since the latter imply a higher conflict degree between spouses.
In case the spouses cannot reach an agreement, a suit for judicial separation will be insitituted.
Petitions for amicable or judicial separation in Italy can be filed:
- after 12 months of marriage, in case of judicial separation;
- after 6 months of marriage, in case of amicable separation.
Amicable separation and divorce in Italy: What are the stages of separation and divorce in Italy?
In Italy, both in case of amicable separation and in case of judicial separation, an application must be lodged with the Court having jurisdiction, that is either the Court of the spouses' last residence or the Court of the defendant's place of residence/domicile.
In the place of court proceedings, the spouses can also turn to the Lawyer and opt for "assisted negotiation", or, alternatively, sign an agreement before a Civil Registrar (but only under certain circumstances).
According to the Italian Law, Judicial separations consist of two stages, more in detail:
The first step involves the President of the Court and is aimed at an attempt of conciliation between the spouses, as well as at taking provisional or urgent measures.
The President of the Court must schedule the hearing within 5 days after the application for separation was lodged, and the same hearing must take place within the following 90 days.
The spouses must appear in person at the hearing. Anyway, in case they are abroad or unable to appear for other reasons, their Lawyers can act in their name and on their behalf by means of a special Power of Attorney.
In case the Defendant fails to appear, the President of the Court shall schedule a new hearing and order that the decree fixing said new hearing be notified to the Defendant. In case the spouses come to a settlement, a report on judicial settlement shall be issued. Otherwise, the President of the Court shall adopt all provisional and urgent measures needed in the interest of the spouses and their children. The President of the Court, thus, shall appoint an Investigating Judge, also scheduling the date of the hearing for the spouses' appearance before said Judge.
The second stage, instead, involves the Investigating Judge, and its outcome is a separation or divorce decree, which is subject to appeal, even before the Italian Court of Cassation.
As for divorce, according to the Italian Law, it is possible to distinguish between:
- judicial divorce, involving a presidential phase and an investigating stage;
- amicable divorce, involving a first step before the President of the Court and the second step in chambers.
Divorce terms can be modified or revoked.
Amicable separation and divorce in Italy: What are the consequences of divorce/separation in Italy?
With separation in Italy, community property regime is dissolved, so that each of the spouses can demand the equal distribution of property.
Inseparable property can be sold so that the spouses can share the revenue from the sale. In case the parties to a divorce cannot reach an agreement on property distribution, the latter shall be decided by the Judge.
The foregoing does not apply if the spouses are married under the separation of property regime, since in this case, after the marriage ends, each spouse retains ownership of their own property.
When the spouses have joint bank accounts, securities accounts or other joint assets, each of them will have to prove which assets constitute separate property. In case of disagreement about who takes ownership of joint assets, the Court will consider them matrimonial assets and divide them into equal parts between the spouses.
Any property acquired before the marriage will remain sole property of each spouse.
Through divorce, in Italy,marital bond ceases to exist and the former spouses regain their single status, together with the possibility to remarry.
The termination of marital bond also implies that in case one of the former spouses passes away, the surviving spouse does not have any right over the deceased's estate, with the exception of legitimate expectations, such as survivor's pension.
As for the amount of survivor's pension that a divorced person can receive, the latter will receive the entire sum in case the deceased hadn't remarried. Otherwise the Court will have to divide the pension between the former and the new surviving spouse, based on the duration of their respective marriages.
From an economic point of view, divorce in Italy implies the termination of:
- trust fund effects;
- community property regime;
- participation of the former spouse in the activities of the family business.
Amicable separation and divorce in Italy: The law applicable to International divorce and legal separation
The European Regulation (EU) No. 1259/2010 lays down the rules in cases of International divorce and legal separation, allowing spouses from different Member States to agree in written form on the national Law applicable to their separation/divorce.
More in detail, they can choose between:
- the Law of the State of previous habitual residence of the spouses at the time the agreement was concluded;
- the Law of the State of the last common habitual residence of the spouses insofar as one of them still resides there at the time the agreement was concluded;
- the Law of the State of residence of one of the spouses at the time the agreement was concluded;
- the Law of the Forum.
The agreement about the Law applicable to a separation/divorce must be espressed in writing and be signed by both spouses at the latest at the time the court is seised.
In case the spouses are not able to reach an agreement on the Law applicable to their separation/divorce, the latter will be subject to the Law of the State:
- where the spouses are habitually resident at the time the court is seised; or, failing that,
- where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seised, in so far as one of the spouses still resides in that State at the time the court is seised; or, failing that,
- of which both spouses are nationals at the time the court is seised; or, failing that,
- where the court is seised.
The above mentioned Regulation applies only to signatory Member States.
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.