Divorce in Italy: divorce by mutual consent and judicial divorce
In recent years, regulations on divorce in Italy have been subject to major and interesting transformations.
Divorce in Italy may be divided into:
- divorce by mutual consent (consensual divorce or amicable divorce), in which the spouses, who are assisted by one or several lawyers, mutually initiate proceedings before the Court of the place in which at least one of the two parties is resident.
The appeal shall contain the provisions which will regulate it, comprising provisions regarding child custody as well. In case of minor children, the public prosecutor shall be present. Divorce by mutual consent may bring great benefits to the spouses: it is quicker and less expensive.
- judicial divorce, it is initiated by one of the two spouses (the applicant), who asks for dissolution of matrimonial ties, and further demands as charging for cost of divorce, alimony check, settlement of the economic relations etc...
The Court in which the applicant resides shall be of competent jurisdiction and shall decide on the divorce application.
The other spouse has the right to set out his defence and submit his own requests.
The judicial divorce procedure may be structured in two phases:
- First summary phase, it is undertaken before the Court President who will attempt to achieve conciliation.
In case of negative result of conciliation, the President will proceed with hearing the spouses separately. After that, he will issue a decree containing urgent provisions and temporary provisions (including those related to children), and will schedule a hearing ordering the parties to appear before the examining judge appointed for the second phase (of merit);
- Second phase, it follows the procedure of jurisdiction on merits.
It ends with a judgement which may confirm provisions taken by provisional order or, on the contrary, may modify those.
Divorce in Italy : quick divorce
On May 26, 2015 divorce in Italy has opened up to a “quick” formula (L. 55/2015), thus allowing the spouses to put an end to the marriage civil effects in shorter time compared to the past.
Indeed, prior to the reform filing for divorce was possible 3 years after legal separation of the spouses. Today, the timeframe has been extremely reduced:
- 12 months for judicial separation, from the date in which the spouses appeared before the Court President;
- 6 months for separation by mutual consent, whether or not the spouses had children, to be counted from:
1) the date in which the spouses appeared before the Court President, in case of separation by mutual consent;
2) the date in which the spouses appeared before the Court President, in case of changing from judicial separation to separation by mutual consent;
3) the certified date of the separation agreement resulted from negotiations;
4) the date in which the separation agreement was concluded before the civil registrar.
By means of a lawyer’s assisted negotiation agreement, in case of both judicial separation and separation by mutual consent, and regardless of the presence of children, it is possible to put forward a request for quick divorce.
Quick divorce shall be available:
- in Court, 6 months after the separation agreement;
- before the mayor of the Municipality, without need of legal assistance, and six months after separation.
Requirement for quick divorce before the mayor is that there are no minor or adult children not able to support themselves. Moreover, asset transfer agreements may not be handled.
Divorce between foreign spouses in Italy
Divorce in Italy is also related to foreign spouses, who are both residing in Italy, however did not get married in Italy, but got married abroad.
In this respect, the marriage and consequently its dissolution shall be subject to Italian jurisdiction.
However, in case of marriage celebrated abroad between spouses residing in Italy , it is possible to ask for separation/divorce in Italy only after transcription into the civil status records of the Municipality the spouses belong to.
The transcription procedure requires that the foreign civil registrar issues the marriage certificate in its original copy, after that the spouses shall submit it to the consular office that in turn will forward it to Italy for the transcription into the civil status records of the relevant Municipality.
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