Divorce for expatriates living in Italy
This article sets out the applicable law and procedures for expats wishing to divorce in Italy. The article includes details the financial provision available for expatriates divorcing in Italy, as well as the provision available for children.
Separation and Divorce
In a majority of cases, divorce in Italy follows a one-year separation period (only 6 months for consensual divorce: “fast track” divorce reform of April 2015). The law provides for few cases of immediate divorce (incestuous relationships; total incapacity of the spouse(s); change of sex, life imprisonment etc.) but these seldom occur.
As a matter of fact the dissolution of a marriage is a result of two separate proceedings taking place one after the other. The second (divorce) being often a mere copy of the first (separation) though not as far as legal fees are concerned, which are simply doubled! This is one more reason to choose to negotiate a divorce in Italy (see below)-
Unlike other countries, an expat couple that wishes to divorce in Italy needs to seek an Order from the President of the local Court (Tribunale) in order to live in a state of separation, regardless of the presence of children, properties, or length of the matrimony. De facto separation can never justify a divorce.
This application for separation must be filed with the Local Court (art. 706 civil procedure code).
Separation and divorce in Italy is based on a no-fault system. However successfully blaming one party for the marriage breakdown may still be important in order to establish the right to, and amount of, ancillary relief (maintenance).
The recent Legislative Decree 2014/1323 which came into force on February 6, 2015 provides ‘Assisted Negotiation’ for separation and divorce. This is basically divorce through mediation rather than in the courts, although lawyers are present to represent each party. The settlement reached through this type of collaboration only needs to be rubber stamped by an officer of the court but no hearing is required.
Since the 1975 Family Law Reformation Act, community property has become the default legal state unless otherwise agreed to in writing between the spouses (art. 159 of the Civil Code).
This (not-so-recent) Reformation Act is aimed at protecting the weaker party: who may be susceptible to the other’s demands such as entering a separation of assets agreement even though unconscionable, unreasonable or unfair.
However, a considerable number of couples are nowadays opting for separation of assets at the moment of marriage. This contract, which takes place during the ceremony, is legally binding and cannot be challenged before the Court in case of divorce under any circumstances as long as the marriage itself is valid.
As a result in the event of a separation of assets (a contract that we may define nuptial agreement as opposed to pre-nuptial agreement of the Common Law Countries) all estates, legacies and donations belonging to one spouse will not be included in communal property unless otherwise specified by the will or donation contract (179 cc.): which seldom happens.
Thus, in the event of a divorce, if one spouse is richer than the other, that spouse may as well be ordered to pay a high amount of spousal maintenance and child support. However if the wealthier spouse had instated a nuptial agreement, as above specified, they would be protected from paying as much as they would in Common Law Countries, where equitable distribution is the norm.
Joint applications for “Consent to separate” can be filed with the Court in the same way as listed above, without the need to list a specific reason for the marriage breakdown. Generally speaking, the approval of the separation from the Court will follow within two or three months.
No minimum standards for dispersal of property are set by law when a joint application is filed, as long as there are no children. The parties can submit any legal arrangement whatsoever.
The court may overrule a consent order following the separation agreement if it is contrary to the interests of the children.
Only a few, very recent decisions have allowed parties to change their minds. In all other cases the court will issue the consent order as required, and the parties must accept the consequences of what they have freely and knowingly agreed to.
When matters do not proceed by joint application, and the separation or divorce order results in contentious proceedings, the average length of such proceedings are two to three years, and sometimes longer.
Housing & Alimony
Children must be supported until they become financially independent (25% of the annual income of a spouse for one child is generally considered a good level of support).
There is no age limit for financial independence, conventionally a maximum age of 26 (in case of University studies) is considered appropriate.
The house stays with the children normally, until they become independent (art. 337 6th of the Civil Code).
Full ownership of the family home must be passed to the original owner as soon as the children become independent, unless the custodial parent is also the owner such as it happens in case of “community property”: when the financial independence of children is reached the house is normally sold and the proceeds shared.
Shared custody of children is standard except when there are serious grounds for challenging this request (e.g. when one spouse is addicted to alcohol, drugs or behaves dangerously).
There are still remnants of the “fault based” divorce in Italian law. The partner who is ‘not to blame’ for the family breakdown is entitled to personal maintenance. This implies not only alimony but a higher monthly amount for her/his support (normally hers). This ancillary relief can be paid as a lump sum, called ‘alimony in gross’.
When alimony in gross is paid no further financial redress can be awarded by the court for any reason whatsoever. The Civil Code provides further important regulations regarding the Estate Succession of divorced couples.
De Facto Families, Cohabitation And Civil Unions
Civil partnerships and civil unions are now regulated by the Statute issued in Italy in 2015.
Civil Union: this is only for same-sex couples. It produces nearly the same rights and obligations as a marriage. Spouses can choose joint ownership of assets. A divorce is needed to dissolve a civil union. No adoption is formally allowed, save a case by case decision from the courts.
Registered Civil Partnership: this is for heterosexuals and homosexuals. Residency must be declared to the Registrar of the Municipality. A contract of cohabitation may be drafted by a (private) lawyer. In case of separation, the party in need is entitled to receive survival alimonies (a smaller form of support).
De facto couples: Those living under unregulated cohabitation receive little protection under Italian Law unless there are children. Legislative Decree n. 154/2013 equalised the legal position of all children regardless of the marital status of their parents. An example is the social housing regulation described earlier and is applied equally to children of de facto and married couples. Few other regulations, mainly local administrative regulations, grant basic aid to unmarried and unregistered couples in the absence of children.
With thanks to the attorney Marco Calabrese for the preparation of this article. Mr Calabrese can be contacted for legal advice at:
Marco Calabrese | Avvocato, Attorney
Owner | Family Law Italy
Website | www.familylawitaly.com
Family Law | Estate| Collaborative Practice
20, via Domenico Chelini | 00197 ROMA (ITALY)
Mobile +39.328.9112809 | Office +39.06.8075014