LEGAL SEPARATION IN ITALY
The Italian legal separation of the spouses is regulated by the Italian Civil Code, the procedural code and related statutes.
The legal separation in Italy does not break up the marriage, but instead divides the legal communion, the duty of marital fidelity and necessity to cohabitate.
Moreover, the legal separation of the spouses in Italy, unlike a divorce, is temporary so that the couple can reconcile, without formalities before the Tribunal or in the City Hall of their residence issuing an ad hoc declaration.
• Separation by mutual consent in Italy: In this case, both spouses decide to separate by mutual consent. An agreement between them on aspects of the separation is required and must be reached. A joint recourse must be filed with the competent Italian Court. Once filed, the first hearing is fixed wherein both spouses must appear before the Italian Court for the compulsory attempt to reconcile required by 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. After the three year period has elapsed, if the agreement between the spouses is considered by the Italian Court fair and not prejudicial to any of them or the children, the Italian Tribunal may grant the separation adopting it by decree (‘decreto di omologa’). The conditions provided therein can be modified or revoked if new facts come to light.
• Italian Judicial separation in Italy: If there is no agreement between the spouses to require a separation by mutual consent, each spouse can file a recourse for judicial separation. The spouse can also ask the Italian Tribunal to ascertain the violation by the other spouse of one of the duties descending from the marriage (e.g. duty of marital fidelity, cohabitation, etc.). In this case, the appealing spouse can ask for a judicial separation “with charge” (‘con addebito’). If the charge is recognized by the Tribunal, the spouse at issue may not be entitled to the maintenance and may lose some other rights as against the other spouse. Similar to the case of separation by mutual consent, at the first hearing, both spouses must appear before the Court for the compulsory attempt to reconcile as required by Italian law. The Italian Court may take the necessary measures to safeguard the financially weaker spouse. The proceedings carry on according to the ordinary procedure and at the end a final judgment is granted by the Italian Court. However, at the first hearing, the Italian Court can also grant a not-definitive judgment, immediately pronouncing the separation of the spouses and carrying 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 this 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.