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Last update: 25-05-2006
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Maintenance claims - Italy

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TABLE OF CONTENTS

1. What do the concepts “alimenti” and “obbligazione alimentare” cover according to the law of Italy? 1.
2. Up to what age can a child benefit from a maintenance allowance? 2.
3. In which cases is the law of Italy applicable? 3.
4. If this law is not applicable, which law will the courts of Italy apply? What if both the person who asks for maintenance and the debtor are in the territory of Italy? 4.
5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance? 5.
6. Can a request be made on behalf of a relative, a close relation, or a child under age? 6.
7. If the applicant plans to bring the case to court, how does (s)he know which court has jurisdiction? 7.
8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures must (s)he follow? 8.
9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can (s)he obtain legal aid to cover the costs of the procedure? 9.
10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of changes in the cost of living or family circumstances? 10.
11. How and to whom will the maintenance be paid? 11.
12. If the maintenance debtor does not pay voluntarily, what action can be taken in order to force him/her to pay? 12.
13. Is there an organisation or government department (central or local) which can help me to recover maintenance? 13.
14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? What if the petitioner is in Italy and the person providing maintenance has his/her residence in another country? 14.
15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Italy? 15.
16. If so, how can that organisation or government department (central or local) be contacted? 16.
17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? What if the petitioner is in another country and the maintenance debtor is in Italy? 17.
18. Can the petitioner address directly a request to an organisation or government department (central or local) in Italy? 18.
19. If so, how can that organisation or government department (central or local) be contacted? 19.
20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? 20.

 

1. What do the concepts “alimenti” and “obbligazione alimentare” cover according to the law of Italy?

Italian law defines “alimenti” as the legally-enforced provision of material assistance to a person or persons in financial need, even if they are in such a situation through their own fault (Article 433 et seq. of the Civil Code).

The duty to provide maintenance falls within the duties of family solidarity, despite the fact that family maintenance responsibilities are becoming less and less important as the concept of a cohesive society which itself should address all our essential material needs begins to take hold.

Those liable to provide maintenance are given in order below:

  • the spouse, in cases where there is no duty to provide “mantenimento”, i.e. spouses separated through fault and spouses who have received the money awarded in the divorce settlement;
  • children, including adopted children, or in their absence, direct relatives in the descending line;
  • parents, or in their absence, direct relatives in the ascending line; adoptive parents;
  • sons-in-law and daughters-in-law;
  • fathers-in-law and mothers-in-law;
  • full brothers and sisters; half-brothers and half-sisters;
  • The closest relative according to the above ranking is liable to provide maintenance; should there be more than one person at the same level, liability is divided between them according to their financial situations.

Other cases:

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  • recipients must provide maintenance for themselves before they receive maintenance from any other liable persons;
  • where no other persons are liable, maintenance must also be provided by the spouse responsible for the annulment of the marriage to the spouse not at fault;
  • maintenance must also be provided by parents to unacknowledged children who have reached majority and are in need.

Requirements for maintenance to be provided:

  • recipients must be in need and partly or entirely unable to maintain themselves;
  • as well a blood link (or a bond of gratitude in cases of donations) between the two parties, the provider must have sufficient means to provide maintenance.

Maintenance claim scheme:

  • transfers, waivers, compensation and appealing to arbitrators are all prohibited;
  • right to maintenance is indefeasible;
  • maintenance payments are not seizable or distrainable; an amount necessary to sustain the debtor and their family is excluded from bankruptcy assets;
  • neither the provider nor the recipient of maintenance may transfer the duty of maintenance to their successors.

What do the concepts “mantenimento” and “obbligazione di mantenimento” cover according to the law of Italy?

The duty of spouses and parents to provide maintenance to their spouses and children respectively is the most important act of family solidarity within the nuclear family.

Unlike “alimenti”, the “obbligazione di mantenimento” reflects normal relations with the nuclear family; there is no assumption of material need (i.e. the inability to provide for basic vital needs) and obligations should be discharged irrespective of any formalities or requests, except legal separation.

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In cases of legal separation:

  • both parents are liable to provide maintenance to their children, irrespective of which one has custody of them;
  • in no-fault separations, whichever spouse does not have sufficient income and is in a worse financial situation may claim maintenance payments from the other, allowing them to retain their pre-separation standard of living.
  • the spouse at fault in the separation may receive maintenance only if they are in need;

In cases of divorce:

  • both parents are liable to provide maintenance to their children, according to the same rules as for cases of separation;
  • ex-spouses are entitled to maintenance if they no longer have sufficient income to retain their pre-separation standard of living and are in a worse financial situation than their spouses.

2. Up to what age can a child benefit from a maintenance allowance?

The duty to provide maintenance for children is an ongoing one, as parents must continue to provide maintenance to both children who are minors and, until such time as they are economically independent, children who have reached majority. The latter are also entitled to maintenance if there are in a state of need.

3. In which cases is the law of Italy applicable?

Section 45 of Act No 218 of 1995 sets out that family maintenance obligations are regulated by the Hague Convention of 2 October 1973, which came into force in Italy by means of Act No 745 of 24 October 1980; recourse to the Convention as provided for by section 45 concerns family maintenance obligations only and not the recipient’s obligations.

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The criterion laid down by the Hague Convention refers to the law of the recipient’s place of residence; if such law does not provide for maintenance payments, then the national legislation common to both parties is applied; should the claimant also be unable to obtain maintenance by means of this legislation, the law of the State in which the claim was filed is applied.

Welfare obligations after a separation, divorce or annulment are regulated by the law of the State in which the separation, divorce or annulment was granted or recognised.

4. If this law is not applicable, which law will the courts of Italy apply? What if both the person who asks for maintenance and the debtor are in the territory of Italy?

If both parties reside in Italy, Italian law is applied, pursuant to the general residence criterion laid down by the Hague Convention of 2 October 1973.

5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

In Italy persons wishing to file a maintenance claim may do so only with the judicial authorities.

6. Can a request be made on behalf of a relative, a close relation, or a child under age?

In Italy only the judicial authorities have the power to impose maintenance payments.

Representatives may also make a request with the judicial authorities by proxy.

7. If the applicant plans to bring the case to court, how does (s)he know which court has jurisdiction?

The applicant must look into the rules governing jurisdiction for different types of case and in different areas. Justices of the peace have jurisdiction over claims under EUR 2 582.28; courts have jurisdiction for maintenance claims over that amount.

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In cases of separation or divorce, the settlement is decided upon by the judge dealing with the separation or divorce; however, any alterations to the settlement suggested by either party are subject to the traditional rules of jurisdiction for different types of case and in different areas.

8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.)? If not, which procedures must (s)he follow?

In maintenance claim cases heard by a justice of the peace, the parties may personally appear in court and orally state their case provided the value of the claim does not exceed EUR 516.46; the justice of the peace may also authorise personal appearances for claims for higher amounts.

In other cases, the parties must appear in court with legal representation, except where the law provides otherwise (e.g. a party who is also a practising lawyer may appear without representation).

9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can (s)he obtain legal aid to cover the costs of the procedure?

A “standard fee for entering cases on cause list” has been in force in Italy since 1 March 2002, replacing all previous fees for civil, criminal and administrative cases (see the Single Text approved by means of Presidential Decree No 115 of 2002). It is a fixed-rate payment system, where amounts payable vary according to the amount of the claim or, in some cases, are flat-rate. Finance Act No 311 of 2004 recently amended some of the thresholds and corresponding fees.

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As from 1 January 2005, a contribution of EUR 30.00 is to be made for claims up to EUR 1 100.00; this contribution gradually increases reaching EUR 1 110.00 for claims exceeding EUR 520 000.00; a fixed-rate fee is paid for cases involving movable and immovable assets (EUR 200.00 for immovable assets and EUR 100.00 for all other cases); payment is facilitated by the use of forms or special post-office giro slips (please consult Agenzia Entrate it).

Opposition and precautionary proceedings, including enforcement proceedings, involving the award of child maintenance are exempt from the fixed-rate fee; also exempt are proceedings involving family issue and legal separation.

The winning party is entitled to a reimbursement of the costs incurred by their lawyer and any sums paid for investigative activities (e.g. necessary technical advice); the judge clears the expenditure by means of a tariff scale with upper and lower limits.

Those persons with an annual taxable income of less than EUR 9 269.22 may be entitled to free legal representation. Income received from a person’s spouse and other family members, if they live together, are taken into account.

The Council of professional lawyers’ associations has set up an information and advice service for free legal representation (see the free legal representation form).

10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of changes in the cost of living or family circumstances?

The legal provision which determines the kind of maintenance granted and orders payment is a court sentence constituting an enforcement order.

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The judge orders the liable party to provide whatever is necessary to ensure the beneficiary may meet their basic vital needs, i.e. food, accommodation and clothing costs and costs for items and services necessary to live with dignity. The judge must take the liable party’s financial situation into account when deciding on what kind of maintenance is to be granted.

In the case of maintenance to be granted to a separated spouse or divorcee, the judge must also take into a count the standard of living enjoyed during the marriage. When determining maintenance to be provided to minors and children who have reached majority but are not yet financially independent, the judge must take into account their educational and training needs.

The maintenance and payment arrangements may be changed, upon application of either the liable party or the beneficiary.

11. How and to whom will the maintenance be paid?

Maintenance is paid to the beneficiary.

Maintenance for minors is paid to the parent with custody of the child; for children having reached majority but not yet financially independent, whichever parent has custody of the child and continues to provide for them is legally entitled (in parallel to the child’s different form of legal entitlement) to receive that child’s maintenance payments.

The judge lays down the payment amounts and arrangements; in cases of legal separation, the judge may order third parties to make part-payments directly to the beneficiaries, as well as regular payments to the liable party.

12. If the maintenance debtor does not pay voluntarily, what action can be taken in order to force him/her to pay?

Beneficiaries have all the usual methods at their disposal to ensure the debtor honours their financial obligations. They can obtain precautionary measures to protect their credit and enforce payment by seizing goods and money owed by third parties.

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Non-payment of maintenance may constitution a violation of family support responsibilities (Article 570 of the Criminal Code); it is a punishable offence if a complaint is received by the wronged party, with automatic prosecution if the maintenance beneficiary is a minor. In Italy, legal recourse has proved effective in preventing spouses without custody of their children from not failing to honour their responsibilities.

13. Is there an organisation or government department (central or local) which can help me to recover maintenance?

Government departments shall not participate in legal proceedings on behalf of the beneficiary or bring any other pressure to bear on the liable party.

Recent legislation (Act No 6 of 2004) introduced the concept of a support administrator which the judge can appoint (without the need for legal defence), indicating what they may do on behalf of any interested party who is partly or entirely unable to provide for daily life (e.g. disabled people, elderly people, alcoholics, drug-users, prisoners). This administrator may also be called upon to request maintenance in court.

14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? What if the petitioner is in Italy and the person providing maintenance has his/her residence in another country?

In Italy support for the needy is also provided by private social groups whose task it is to protect those marginalised from society or people living in poverty. These activities are voluntary and may be carried out in many different ways depending on specific needs and capacity.

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The Constitution requires the State and public authorities to provide social assistance to those people who are in financial need, unable to work or without relatives to provide them with maintenance.

The national health service should in turn intervene to protect the health of the poor by providing care and shelter. Regional authorities should do likewise by providing public canteens and accommodation and care and shelter institutions for the elderly and infirm.

These activities replace family support responsibilities, except in any event that of being entitled to claim support from relatives who are legally liable to honour their obligations. Such claims are governed by the law on creditor institutions (section 9 of the Hague Convention of 2 October 1973).

If the petitioner is in Italy and the person providing maintenance is in another country, the criteria established by the law of the petitioner’s state are applied to define the limits and scope of maintenance responsibilities and methods and terms of payment, in accordance with the Hague Convention of 1973, which follows the general criterion of the law of the state in which the beneficiary lives.

15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Italy?

Organisations may always provide assistance in the form and under the conditions established by them. Government departments must provide assistance in the ways and to the extent described in the previous answer.

16. If so, how can that organisation or government department (central or local) be contacted?

There are many charities in Italy whose workers are voluntary.

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The government departments which must provide assistance are: the regional, prefectorial, provincial and municipal authorities and the National Health Service Offices.

All these bodies have offices specifically responsible for examining interested parties’ applications and to undertake the most appropriate action once the case at hand has been assessed (for further information, please consult the appropriate websites).

17. What kind of assistance can the petitioner receive from this organisation or government department (central or local)? What if the petitioner is in another country and the maintenance debtor is in Italy?

Private institutions have the power to select the type and scope of the support to be provided according to the provisions laid down in their statutes and according to their financial capacity. Actions carried out by government institutions are established by law.

If the petitioner is in a different country to where the liable party resides, the amount of maintenance and the methods and terms of payment are determined:

  • primarily in accordance to the law of the place of usual residence;
  • in accordance to the law common to both parties, if the first option is not possible;
  • in accordance with the law of the authority called upon, failing the above two options.

For separated or divorced couples, whichever law governed the separation or divorce shall apply.

The above is regulated by Articles 1, 4, 5, 6 and 8 of the Hague Convention of 2 October 1973 on maintenance obligations, ratified by Italy in 1980.

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18. Can the petitioner address directly a request to an organisation or government department (central or local) in Italy?

Private organisations may carry out support activities in whichever ways they see fit. Generally there are no fixed procedures to be followed.

Both public and private organisations carrying out support activities should have an office responsible for receiving requests for support, accepting those requests that meet their criteria and fall within their institutional scope, which is generally set out by the laws and regulations governing them.

19. If so, how can that organisation or government department (central or local) be contacted?

Government department addresses are available on municipal, provincial and regional websites. There is also information of the website of the Ministry of the Interior it.

There are no specific contact formalities. The requester need only apply in person or via a representative if they are unable to do so.

20. What kind of assistance can the petitioner receive from this organisation or government department (central or local)?

Both private and public institutions act in accordance to and within the limits of their ambit.

To obtain support, the petitioner should seek information on available services at the various support institutions. Support may come in the form of subsidy, shelter, necessary health care, home help or other forms of assistance specifically provided for in the regulations and statutes governing public and private institutions in this sector.

« Maintenance claims - General information | Italy - General information »

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Last update: 25-05-2006

 
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