Judicial separation and consensual separation in Italy
The Italian divorce lawyers of Palmigiano Law firm has assisted and assists clients in legal and consensual separations. The firm welcomes clients with different nationalities from around the world and our multi-lingual lawyers can assist clients involved in complex cross-border separation and divorce cases. Our divorce lawyers act for international clients across Europe who are embarking on divorce or separation or other regimes.
The firm advises on all areas of family and children’s law, including custodial parental rights and the creation of alternative family structures. Palmigiano Law Firm has a specialist children department with specific expertise in all aspects of international children law. The firm understands that going through a divorce can be an upsetting experience and our Italian lawyers will put you at ease by advising you at every stage of the process.
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The wealth of expertise Palmigiano’s team has in handling cross-border divorce allows us to undertake matters as swiftly as possible, minimising the impact of the stress involved in the process. Palmigiano offers a comprehensive range of family law services which include divorce and separation, children and financial disputes, civil partnerships (international solutions for Italian residents or rights of foreign gay couples living permanently in Italy) cohabitation issues and associated property disputes. Palmigiano’s Italian divorce lawyers have experience of international child abduction.
Our professionals regularly advise in cases involving the choice of jurisdiction in relation to international assets. Couples who have sufficient connection with a foreign country may have a choice as to the jurisdiction in which they would prefer to divorce.
The consequences of obtaining a divorce in one jurisdiction as opposed to another may be very different. Palmigiano’s divorce lawyers can advise on the benefits and detriments of the potential jurisdictions to ensure that the correct choice is made to provide the most favourable result, taking into account the comparative financial settlements, costs, timescale and ease of enforcing any orders obtained.
Within European Union countries, it is crucial to be the first to issue proceedings in the chosen jurisdiction as whoever is first to start the action in their chosen jurisdiction is where the divorce will be heard. It is imperative to act as speedily as possible to prevent the other spouse from issuing in another less favourable EU country.
Our specialist Italian divorce lawyers are well-regarded in the field of Italian child abduction, children disputes and forced marriage cases. The firm has specialists who speak English, French, Italian.
In Italy, the legal separation does not break up the marriage: unlike a divorce, it is temporary, so that the spouses can reconcile without involving a Tribunal or the City Hall. Nevertheless, a legal separation does have a significant impact on the spouses’ lives, as it divides the legal communion, the duty of marital fidelity and the necessity to cohabitate.
For the Italian Law, there are two types of legal separation: the consensual separation and the judicial separation. The latter comes into play when the spouses cannot reach an agreement on crucial aspects such as the economic claims or the management and custody of children.
Let’s see the difference between the two.
The consensual separation in family law in Italy
A consensual separation is so called because the spouses manage to amicably make a personal separation agreement.
This agreement regulates financial and non-financial aspects, including:
- care and custody of the children
- access rights of the children
- the amount of maintenance or child support to be paid, if any
- the allocation of the matrimonial home and other property forming part of the community of acquests.
The personal separation agreement must be submitted to the analysis of the competent Italian court, in order to assess that the conditions are consistent with the law and that the rights of the offspring are respected. Once a joint recourse is filed, both spouses are called to appear before the court for the compulsory attempt to reconcile required by the Italian law. The Italian Court may take necessary measures in safeguarding the weaker (non-moneyed) spouse. From this date, the three-year term necessary to be entitled to divorce begins to accrue.
The judicial separation in Italian separation law
The judicial separation is a procedure that can be started upon the request of one of the spouses, when:
- marriage obligations have been violated by one of the spouses (e.g. duty of marital fidelity, cohabitation, etc.);
- the relationship between the spouses is no longer sustainable for objective circumstances, and there is no agreement on separating by mutual consent.
If any duties descending from the marriage have been violated, the appealing spouse can ask for a judicial separation “with charge” (‘con addebito’). If the charge is recognized by the Court, the other spouse may lose some rights, such as the right to maintenance.
As in consensual separations, a first hearing before the Court is scheduled and both spouses are obliged to try to reconcile. If they don’t, the ordinary proceedings carry on, ending with a final judgment granted by the Italian Court.
In some cases, the Court can immediately pronounce the separation of the spouses and carry on the proceedings just on the disputed matters. In this case, the three-year term for the spouses to be entitled to task for the divorce starts to accrue from the first hearing, so that they could require the divorce before the definitive judgment of separation is granted.
A proceeding for judicial separation in Italy can also be converted into a proceeding for separation by mutual consent.
International separation and divorce: the rules on custody of minors and the reason why to entrust an Italian divorce lawyer
In addition to allowing couples to choose the law applicable to their divorce or separation, the international law establishes the rules that mixed couples must follow for the custody of minors.
In the event of divorce or separation, it is important to determine whether the children will live with only one parent or with both, in alternating periods. In the absence of an agreement between former spouses with different nationalities and residency in different countries, international law regulates the procedures of assignment in the primary interest of the welfare of the minor. Thank’s to the expertise of the Italian divorce lawyers of Palmigiano Law Firm, you will be able to entrust a professional specialized in divorce law that knows how to provide a legal assistance to avoid any problems about an international separation.
The criteria of competence of the judge and the modalities of shared custody are sanctioned in the Hague Convention, which establishes that the court competent for the custody of minors is that of the country in which the child is permanently and continuously resident. In the case of child refugees, or if it is not possible to establish the habitual residence of the child, the jurisdiction will be of the judge of the state in which the minor is because of his status.
However, there are exceptions. In particularly complex cases, the competent court may appeal to the authority of another one to more effectively evaluate the child’s interests, requesting the adoption of measures relating to the child or inviting the parents to promote the judgment before this authority. This is possible only if the judge operates in a state where the child is a citizen or in which the child’s property is located, or if he is competent to rule on the separation or divorce of the minor’s parents, or if he belongs to a state which presents a close relationship with the minor subject.
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