Divorce - Italy

TABLE OF CONTENTS 1. What are the conditions for obtaining a divorce?  2. What are the grounds for divorce?  3. What are the consequences of a divorce as regards:  a) the personal relations between the spouses?  b) the division of property of the spouses?  c) the minor children of the spouses?  d) the obligation to pay maintenance to the other spouse?  4. What does the legal term “legal separation” mean in practical terms?  5. What are the conditions for legal separation?  6. What are the legal consequences of legal separation?  7. What does the term “marriage annulment” mean in practice?  8. What are the conditions for marriage annulment?  9. What are the legal consequences of marriage annulment?  10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court?  11. 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?  12. Can I obtain legal aid to cover the costs of the procedure?  13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?  14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in Italy?  15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?  16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Italy or who are of different nationality?

 

1. What are the conditions for obtaining a divorce?

The law provides for absolute grounds for divorce (see question 2), 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 therefore there 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.

Source: Act No 898 of 1 December 1970, as amended by Act No 436 of 1 August 1978 and Act No 74 of 6 March 1987.

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.,
   1.  for any offence carrying a sentence of life imprisonment or imprisonment for more than 15 years, possibly as a result of multiple sentencing, for pre-meditated offences, apart from political offences and offences committed on specific moral or social grounds;
   2. for any offence carrying a custodial sentence for incest (section 564 of the Criminal Code) or violent sexual offences under sections 609bis (sexual violence), 609quater, 609quinquies, 609octies (introduced by Act No 66 of 1996);
   3. 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);
   4. 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:
   1. 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;
   2. 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;
   3. 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;
   4. the criminal proceedings regarding the offence of incest have been concluded with the judgment that the offence is not punishable as it did not create a public scandal;
   5. the other spouse, a non-national, has obtained an annulment or dissolution of the marriage or has entered into a new marriage abroad;
   6. the marriage has not been consummated;
   7. 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.

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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. However, the woman is not allowed to remarry for a certain period of time, except in the cases covered by section 89 of the Civil Code;
• 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 (section 87(4) of the Civil Code); 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.

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c) the minor children of the spouses?

Parental responsibility: The court granting the divorce also awards custody of the children to one of the parents, or - where it is deemed to be in the child's interests - to both parents jointly or alternately; 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. (For further details see "Parental Responsibility - Italy")

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. (For further details see Maintenance Claims - Italy)

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.

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Failure to maintain the spouse or children: Under section 570 of the Criminal Code it is a criminal offence for a spouse to fail to maintain his/her spouse and/or their child(ren).

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).

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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. (For further details see "Parental Responsibility - Italy").

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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 (for further details see Maintenance Claims - Italy).

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).

Other effects: The separation order gives an entitlement to the registration of a judgment mortgage. In the event of non-compliance and in response to an application from the entitled person, the court may order the seizure of the assets of the person liable and order third parties required to make periodical payments to the person liable to transfer part of the sum to the beneficiary.

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7. What does the term “marriage annulment” mean in practice?

Under section 117 et seq., the civil code civil defines various cases of nullity which can result in voidance or annulment of the marriage. It is preferable to use the category of invalidity and examine the specific aspects of invalidity and the law applicable.

A marriage is invalid if it is flawed in one of the manners indicated by law and must be invoked in the appropriate manner.

An action for annulment of a marriage is not notified to heirs unless the case is already pending. The Public Prosecutor must be involved.

Source: The substantive rules are in sections 117 - 129bis of the Civil Code.

8. What are the conditions for marriage annulment?

A marriage may be invalid for any of the following reasons (section 117 et seq. of the Civil Code):

1. One of the spouses is still in a previous marriage (the person is not single). Invalidity is absolute and indefeasible; applications may be brought by the spouses, direct ascendants, the public prosecutor or anyone with an interest;
2. Impedimentum criminis: where the marriage is entered into by two people, one of whom has been convicted of the murder or attempted murder of the other's spouse. Invalidity is absolute and irremediable and may be invoked by spouses, the public prosecutor or anyone with an interest;
3. Where the marriage cannot be entered into owing to the mental ill‑health of one of the spouses. The marriage may be prohibited after the event, where the incapacity obtained at the time of the marriage; the marriage may be contested by the guardian, the public prosecutor or anyone with an interest;
4. Mental incapacity of one of the spouses (natural disability). The marriage may be challenged by the spouse who, while not prohibited from entering into marriage, finds that he/she married while mentally incapable. The application may not be lodged if the couple have lived together for over a year after the spouse in question has regained his/her mental faculties;
5. Age. Applications may be brought by the spouses, the public prosecutor or the parents; the minor may not act until one year after coming of age;
6. Ties of kinship, affinity, adoption and affiliation. Invalidity may be invoked by the spouses, the public prosecutor or anyone with an interest, unless a year has elapsed since the wedding or it would have been possible to obtain authorisation;
7. Violence, fear and error (consent obtained by use of violence or as a result of serious fears deriving from factors outside the spouse's control; mistaken identity or an error regarding the personality of the other spouse, as set out in section 122 of the Civil Code). Applications may be brought by the spouse whose consent was obtained in one of the manners indicated above, unless the couple have lived together for one year following the cessation of the cause of the violence or fear or from the date the error was discovered;
8. Simulation. The marriage may be contested by either of the spouses who entered into marriage having agreed not to meet the obligations or exercise the rights deriving from it. Applications must be brought within a year of the wedding or if the couple have lived together as husband and wife following the wedding, even for only a short time.

9. What are the legal consequences of marriage annulment?

If the spouses acted in good faith (i.e. they were unaware of the impediment when they got married), the marriage is deemed valid until it is pronounced void, and the annulment is effective ex nunc (putative marriage). Children born or conceived during the marriage are considered legitimate and are therefore covered by the rule governing the separation of couples with children.

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The court may also require one of the spouses to make periodical payments to the other spouse for no more than three years, where the other spouse does not have adequate means and has not remarried.

Where only one of the spouses acted in good faith, the effects of the putative marriage apply to that spouse and any children. The spouse who acted in bad faith is required to pay fair compensation corresponding to maintenance for three years and to pay maintenance if no other persons are liable.

Where both spouses acted in bad faith, the marriage has effects on children born or conceived during the marriage, unless the voiding of the marriage is on the grounds of bigamy or incest; children born within a marriage that has been annulled on the grounds of bigamy may acquire the status of natural children of established paternity.

Good faith is presumed and must be present only at the moment the marriage knot is tied.

10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court?

There are no provisions for alternative methods of solving issues relating to divorce (or separation); in particular there is no provision for family mediation. Parliament is currently examining draft legislation providing for family mediation with a view to enabling the spouses to reach agreement on the custody of children.

11. 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 rules on divorce proceedings also apply to legal separation proceedings, unless they are incompatible, at which point sections 706 of the Code of Civil Procedure et seq. apply.

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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.

Sources: Act No 898 of 1970, and subsequent amendments; in the case of legal separation sections 706-711 of the Code of Civil Procedure also apply.

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12. Can I obtain legal aid to cover the costs of the procedure?

It is possible to obtain legal aid and therefore to have legal representation without having to pay the costs of defence and the other court costs. Legal aid is also available to foreign nationals lawfully residing in Italy. The eligibility conditions can be found in Act No 1990/217 and the information sheet on legal aid. As applications must be submitted to the bar association, they can be obtained from the relevant bar association website (the address of the Rome bar association is www.ordineavvocati.roma.it ) and Ministry of Justice site at www.giustizia.it/servizi_cittadino/patrocinio_stato.htm.

Source: Act No 217 of 1990, as amended by Act No 134 of 2001.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

It is possible to appeal against legal separation, divorce or annulment orders. Non-final rulings in divorce proceedings (e.g. where the case proceeds so that the settlement can be decided) or separation proceedings (e.g. where the case proceeds so that a ruling can be made on the person responsible or on the settlement) cannot be challenged by a separate appeal (i.e. together with the final judgment); they must be challenged in accordance with the law.

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14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in Italy?

Regulation (EC) No 2201/2003 of 27 November 2003 applies. It provides for a standard procedure in all EU Member States.

Recognition is automatic. There is therefore no need for a procedure to update a Member State's registry of marriages, births and deaths following a final divorce, legal separation or annulment ruling.

However, any interested party may have a declaration issued to the effect that the decision must or may not be recognised. The Regulation sets out the specific grounds for non-recognition. The application (in the form of an appeal) must be lodged with the court of appeal with territorial jurisdiction (with reference to the place of implementation of the ruling and in accordance with internal rules). The court rules without delay (or adversarial proceedings) and the ruling is notified to the applicant.

15. To which court should I turn to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?

Either party may challenge the decision on recognition at the court of appeal which issued the decision within one month of its notification (two months if the other party is resident in another country). At this second stage the adversarial principle applies and the normal trial rules apply.

It is possible to appeal against the ruling on the challenge to the Court of Cassation (Cf. annexes to the Regulation).

16. Which divorce law does the court apply in a divorce proceeding between spouses who do not live in Italy or who are of different nationality?

Legal separation and divorce are governed by the national legislation common to both spouses when the application for separation or divorce is made. In the case of spouses of different nationalities, the court has discretion to decide which law applies on the basis of the country in which most of the couple's marital life takes place.

Where the foreign law applicable makes no provision for legal separation or divorce, Italian law applies (section 31 of Act No 218 of 1995), and the lex fori prevails in such cases. It should be noted that Italian law applies irrespective of whether the applicant is an Italian national and may also be invoked by a non-national in a mixed marriage or a marriage of two non-nationals.

In relation to this question, Italian spouses who have lodged applications for legal separation or divorce in Italy are subject to Italian law, even if they are not resident in Italy. Spouses of a different nationality are subject to the law of the country in which most of their marital life takes place. However, where the law of the country in question does not provide for legal separation or divorce, the (Italian) court will apply Italian law.

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Last update: 19-04-2007