Ministero della Giustizia

Last updated on 27 March 2020 by the Ministry of Justice

LIVING IN A COUPLE WITH DIFFERENT NATIONALITIES: SEPARATING AND DIVORCING

 

What is the law applicable to separation and divorce?

In the event of legal separation and divorce or dissolution of a civil partnership, the EU rules on conflict of laws (Regulation (EU) No 1259 of 2010) take precedence over national rules of private international law (Law 218/1995).

Regulation (EU) No 1259 of 2010 allows spouses (or civil partners) to choose the applicable law provided that it is:

• the law of the Member State in which both partners are currently living; or
• the law of the State where the partners were last jointly resident, insofar as one of them still resides there at the time of the agreement; or
• the law of the State of nationality of either partner at the time the agreement is concluded; or
• the law of the forum.

In the absence of agreement on the applicable law, the above connecting factors are applied in hierarchical order (the first takes precedence over the second and so on).

 

How to get a divorce

The law lays down the legal requirements for divorce (see section 2). The court must verify that the legal requirements for issue of the divorce order are met.

These checks must be carried out even if the two spouses lodge a joint application for divorce; the agreement of the spouses is not in itself a ground for divorce – in reality, therefore, there is no such thing in Italy as a divorce by mutual consent: the court must always establish the facts underlying the application before granting a divorce.

If the marriage was contracted under the Civil Code, the divorce dissolves it, while if it was celebrated in church and duly recorded in the civil register of births, marriages and deaths, the divorce terminates its civil law effects. The public prosecutor must take part in the proceedings.

Relevant legislation:

Law No 898 of 1 December 1970 (Rules on the dissolution of marriage, also known as Divorce Law)

 

What are the grounds for divorce?

Either spouse may apply for divorce on any of the following grounds:

• where, after the wedding has taken place, the other spouse is sentenced by final judgment for a particularly serious crime, whether committed before or after the wedding, namely:

1. sentenced to life imprisonment or to a term of imprisonment of more than 15 years, even by separate judgments, for intentional offences, with the exception of political offences or offences committed for ‘reasons of particular moral and social value’;
2. sentenced to a custodial sentence for incest (Article 564 of the Criminal Code) or sexual offences under Articles 609-bis (sexual abuse), 609-quater, 609-quinquies, or 609-octies (introduced by Law No 66 of 1996);
3. sentenced to any custodial sentence for murdering an offspring or for the attempted murder of the spouse or of an offspring;
4. sentenced to a custodial sentence, where the person has been found guilty on two or more counts of grievous bodily harm, failure to fulfil family support obligations, abuse in the family or of minors, exploitation of the vulnerable spouse or child, except where the spouse seeking divorce has also been convicted as an accessory to the offence or where the couple have resumed cohabitation;

• in cases where:

the other spouse has been acquitted of the offences of incest or sexual abuse mentioned in points 1(b) and (c), if the court establishes that the respondent is unfit to continue or return to live with the family;

the couple have been legally separated, either by mutual consent or on the application of one of the parties, for an uninterrupted period of

1. at least 12 months since the couple appeared before the court in legal separation proceedings
2. six months in the event of consensual separation, including where the court procedure was initially adversarial but then became consensual
3. or six months from the date of the separation agreement reached following negotiations assisted by a lawyer, or from the date of the separation agreement concluded before a civil registrar;

criminal proceedings for one of the offences listed under points 1(b) and (c) were discontinued because the offence was time-barred, but the divorce court establishes that the person was indeed criminally liable for the offence;

a criminal prosecution for incest ended with a finding of no criminal liability because the act did not cause ‘public scandal’;

the spouse, being a foreign national, has obtained the annulment or dissolution of the marriage abroad or has entered into a new marriage abroad;

the marriage has not been consummated;

one of the spouses has legally changed gender: in this case the divorce petition can be submitted by either spouse.

In summary, apart from the ‘criminal law’ scenarios (which include, in addition to convictions for serious offences, cases where the person was acquitted on the grounds of diminished responsibility, cases where the offence is time-barred, and cases of incest where the objective requirement of criminal liability is not met), additional grounds for divorce include:

• legal separation;
• where the spouse has obtained the annulment or dissolution of the marriage abroad or has entered into a new marriage abroad;
• non-consummation of the marriage;
• legal change of gender.

 

Legal consequences of divorce with regard to:

1. The personal relations between the spouses (e.g. the surname)

The granting of a divorce entails the following:

• the marriage relationship is dissolved: each party reverts to single status and is free to remarry;
• the woman loses the husband’s surname, which she had added to her surname; however, on application, the court may allow the woman to retain her husband's surname in addition to her own, where this is shown to be in her or her children’s interest for reasons deserving protection.

The granting of a divorce does not entail the following:

• divorce does not break the ties of affinity; in particular it does not set aside the impediment to marriage constituted by affinity in the direct line (Article 87(4) of the Civil Code);
• after divorce, foreign spouses do not lose the citizenship they acquired through marriage.
   

2. The division of the spouses’ property

Divorce dissolves the joint estate established by law (comunione legale, which includes all purchases made by the spouses jointly or separately during the marriage, apart from the personal items listed in Article 179 of the Civil Code) and also any fund set aside for the needs of the family (fondo patrimoniale). However, such a fund continues to exist until any children have reached the age of majority. Divorce has no effect on standard shared ownership (comunione ordinaria, for example assets acquired on a pro-quota basis before the marriage or even during the marriage if contracted under the separation of property regime): standard shared ownership may be dissolved on the application of one of the spouses.

A parent who lives with a minor child may be granted the right to continue to live in the family home where it is in the child’s interest to remain in that home.

3. The minor children of the spouses

The court granting the divorce will:

• award joint custody of minor children; only in exceptional cases are the children placed in one parent’s exclusive custody;
• establish the rules on the time to be spent by the minor children with the non-cohabiting parent (the parent who is not cohabiting with the minor);
• give instructions regarding the administration of the children’s property;
• set the monthly contribution towards the minor children’s maintenance to be paid to the cohabiting parent.
   

4. The obligation to pay maintenance to the other spouse

In the divorce decree, the court, on the application of a party, will also determine the amount of periodic maintenance to be paid to the party who lacks sufficient income and is unable for objective reasons to earn income. The obligation to pay maintenance ceases if the recipient remarries. Where both parties are in agreement, support may also be paid in a single transaction by transferring ownership rights on a property to the benefiting spouse. (For more details see ‘Maintenance claims – Italy’).

Spouses who fail to pay maintenance in the event of separation or after divorce commit the offence of failing to assist their family (Article 570 of the Criminal Code).

There are other effects. A divorced spouse that receives maintenance payments and has not remarried is also entitled to a share of any severance payment made to the other spouse; if the paying ex-spouse dies, the maintenance recipient is entitled to any survivor’s pension or, if the ex-spouse remarried, to share the survivor's pension with the new spouse, and to receive a payment from the deceased’s estate, if the maintenance recipient is in financial hardship. The law also allows a maintenance recipient to register a judgment mortgage or obtain seizure of the assets of the spouse required to pay maintenance.

 

What does “legal separation” mean in practice?

Legal separation means that the law no longer requires the spouses to live together. Mere de facto separation is without effect (except for separations before the new Family Law No 151 of 1975).

Legal separation does not break up the marriage tie but weakens it.

Legal separation may be by order of the court or by mutual consent.

Relevant legislation:

Civil Code (Royal Decree No 262 of 16 March 1942)

the substantive rules are set out in the Civil Code (Articles 150 et seq.; on questions regarding inheritance, see Articles 548 and 585)

 

What are the conditions for legal separation?

Judicial separation – i.e. separation by order of the court – requires a finding that the spouses are no longer able to live together.

Where this condition is met, the court will issue a separation order at the request of one of the two spouses, even against the other’s wishes. In exceptional cases, the court may place responsibility for the separation on one of the spouses: this has implications for the award of maintenance during separation and after divorce, and for inheritance rights. The public prosecutor must take part in the proceedings.

Legal separation by mutual consent is based on an agreement between the spouses, but becomes effective only after approval by the court, which is responsible for ensuring that the agreements reached by the spouses meet the family’s overriding interests. In particular, where an agreement regarding child custody and support goes against the children’s interest, the court will reconvene the parties and request the necessary changes. If the parties fail to comply, the court may refuse to approve the separation.

 

What are the legal consequences of legal separation?

Personal relationships: legal separation (by order of the court or by mutual consent) removes the requirement for all the forms of assistance associated with living together. It also removes the presumption of paternity. The wife does not lose the husband's surname that she had added to hers but, on the husband’s request, the court may forbid her to use it where such use may cause him serious harm. Likewise, the court may allow the wife to refrain from using her husband’s surname where such use may be to her detriment.

Ownership of joint property: the joint estate is dissolved upon a declaration of the absence or presumed death of one of the spouses, annulment, dissolution or cessation of the civil effects of the marriage, legal separation, judicial separation of assets, a mutually agreed change to the matrimonial relationship, or one of the spouses being declared bankrupt.

In the event of legal separation, the common property regime between the spouses is dissolved when the court authorises the spouses to live separately, or from the date on which the consensual separation agreement is signed before and approved by the judge. The order authorising the spouses to live separately is sent to the civil registrar so that the dissolution of the joint estate can be recorded.

Parental responsibility: the court granting the separation rules on the custody of any minor children and establishes the amount of child support payable by the non-cohabiting parent (or, in the exceptional case of sole custody, by the parent without custody). The right to live in the family home is usually granted to the parent living with the child

Award of maintenance: on request, the court grants the spouse not responsible for the separation the right to maintenance from the other spouse, if he or she does not have sufficient income. The spouse in financial need is entitled to maintenance payments even where the separation was on the grounds of his or her fault.

Automatic adjustment of maintenance payments for inflation is expressly provided for in the case of divorced couples; case-law has extended this to separated couples.

The arrangements set out in the court order concerning custody of the children and calculation of maintenance payments for children and for a spouse may be subsequently revised. Failure to make the maintenance payments is an offence under Article 570 of the Criminal Code.

Separation with and without responsibility: Separated spouses who are not held responsible for the separation continue to enjoy the same inheritance rights as spouses who are not separated.

Spouses held responsible for the separation are entitled only to maintenance from the estate of the deceased, and only if at the time of the inheritance proceedings they were entitled to maintenance payments from the deceased spouse (Articles 548 and 585 of the Civil Code).

Further effects: a judgment mortgage can be registered on the basis of a separation order; in the event of failure to pay maintenance, the entitled party may ask the court to seize the assets of the liable spouse or issue an order for attachment of earnings.

 

What does “marriage annulment” mean in practice?

Articles 117 et seq. of the Civil Code set out the cases in which a marriage may be declared null and void. The subject is best considered in terms of invalidity, looking at the grounds for invalidity and the law applicable in each case.

A marriage is invalid if it is vitiated by one of the defects set out in law, which must be invoked by bringing an action in court.

An action to annul a marriage is not transferred to heirs unless the case is already pending. The public prosecutor must take part in the proceedings.

 

Relevant legislation

Royal decree No 262 of 16 March 1942 - Civil Code

the substantive rules are contained in Articles 117 to 129-bis of the Civil Code.

 

What are the grounds for annulling a marriage?

A marriage may be invalid for any of the following reasons (Articles 117 et seq. of the Civil Code):

1. one of the spouses is already married; in this case invalidity is absolute and imprescriptible; the action to declare the marriage void may be brought by either spouse, by a direct relative in the ascending line, by the public prosecutor, or by anyone with a legitimate interest;
2. impedimentum criminis: one of the spouses has been convicted of the murder or attempted murder of the other person’s spouse; the invalidity is absolute and irremediable, and the action to declare the marriage void may be brought by either spouse, by the public prosecutor or by anyone with a legitimate interest;
3. lack of mental capacity of one of the spouses; this also applies if the lack of capacity is declared by the court after the wedding, but is found to have started before the wedding; in this case, the action for annulment may be brought by a guardian, the public prosecutor or anyone with a legitimate interest;
4. one of the spouses was not of sound mind (incapacità naturale); the marriage can be challenged by a spouse who, though not certified as lacking mental capacity, proves that he or she contracted the marriage while of unsound mind; this action may not be brought if the couple lived together for more than one year after the applicant regained his or her mental faculties;
5. one of the spouses was under age; the action may be brought by either spouse, by the public prosecutor, or by the parents; the minor’s right to lodge the action lapses one year after coming of age;
6. relationships by blood, affinity, adoption or ‘affiliation’ (quasi adoption); the action for annulment may be brought by either spouse, the public prosecutor or anyone with a legitimate interest, except where a year or more has passed since the wedding and authorisation for the marriage could have been sought despite the family relationship;
7. duress, fear or error (consent was extorted under duress, or was due to exceptionally serious fear of events outside the spouse’s control; or there was mistaken identity or an error regarding an essential personal prerequisite of the other spouse, pursuant to Article 122 of the Civil Code); applications may be brought by the spouse whose consent was defective on one of these grounds, unless the spouses have lived together for one year after the cause of duress or fear ended or the error was discovered;
8. simulation: the marriage may be contested by either of the spouses where they contracted marriage having agreed not to meet the obligations or exercise the rights deriving from it; the application for annulment must be brought within one year of the wedding; it cannot be brought if the spouses have lived together as husband and wife after the wedding, even for only a short time.

 

What are the legal consequences of marriage annulment?

If the spouses acted in good faith (i.e. they were unaware of the impediment when they married), the marriage is deemed valid until it is annulled, and the annulment is effective only from the time it is ordered (the ‘putative marriage’ principle). A voided marriage retains the effects of a valid marriage with respect to any children, even if both spouses acted in bad faith.

The court may also require one of the spouses to make periodic payments to the other, for no more than three years, where the other spouse does not have adequate means and has not remarried.

Where only one of the spouses acted in good faith, the marriage has effects for the benefit of that spouse and any children. The spouse who acted in bad faith is required to pay fair compensation corresponding to maintenance for three years and to pay further maintenance if no other persons have an obligation to provide support.

 

Out-of-court procedures for resolving divorce-related disputes

Decree-Law No 132 of 12 September 2014, converted into Law No 162/2014, introduced two new alternative out-of-court procedures:

• the parties may draw up an assisted negotiation agreement, whereby they undertake to settle a dispute amicably with the assistance of lawyers.

This option applies, even if the spouses have minor children or adult children with serious disabilities or financially dependent, in the following cases:

• separation by mutual consent;
• cessation of the civil effects of marriage (if celebrated in church) or dissolution of marriage;
• amendment of the conditions of separation or divorce.

Through assisted negotiation, the spouses can avoid court proceedings (Articles 2 and 6);

• in cases where there are no minor children or disabled or financially dependent adult children, the law has recently introduced the possibility for the spouses to conclude an agreement before a civil registrar confirming their legal separation or the dissolution or cessation of the civil effects of their marriage, or amending the conditions governing their separation or divorce (Article 12). Such agreement may not contain asset transfer arrangements. This procedure must be done at the municipal offices. Legal assistance is optional.

For information, see the websites of individual courts, in particular:

• Public Prosecutor’s Office at the Court of Lodi
  (http://www.procura.lodi.it/it/Content/Index/30679)
• URP (Public Relations Office) of the Court of Genoa
  (https://www.ufficigiudiziarigenova.it/comefare.aspx?id_ufficio_giudiziario=458&cfp_id_scheda=1681)
• Court of Varese
  (http://www.tribunale.varese.it/index.phtml?Id_VMenu=1435)

 

Where to apply for divorce/legal separation/marriage annulment, steps to follow and documents to provide

The rules on divorce proceedings also apply to legal separation proceedings, mutatis mutandis; Articles 706 et seq. of the Code of Civil Procedure remain applicable.

The proceedings take the form of a special fact-finding procedure governed by different rules from ordinary proceedings, particularly in the preliminary stage (this is basically a two-tier process: the conciliation phase and the examination-litigation phase).

Jurisdiction: the competent court is the general court (tribunale), sitting as a panel of judges, of the place of the spouses’ last joint residence or of any other place indicated by law (Article 706 of the Code of Civil Procedure), or, where the respondent cannot be contacted or resides abroad, the court of the place of residence or domicile of the applicant; where both parties live abroad, any Italian court may hear the case. Where divorce is by mutual consent, the spouses may choose the place of residence or domicile of either.

Proceedings: the petition for separation or divorce takes the form of an application to the court (ricorso) which is lodged with the clerk of the court having jurisdiction. Any supporting documents should be enclosed with the application but may also be produced at the hearing. The applicant is responsible for ensuring that the other spouse is notified of the application and of the order of the presiding judge setting the date for the hearing of the spouses. If the attempt at conciliation during the first hearing is unsuccessful, the presiding judge will issue interim orders in the interests of the spouses and their children, and set a date for a hearing before the examining magistrate, who will examine the case in accordance with the ordinary rules of evidence.

 

Divorce by joint application: a joint application can be made where the spouses have already reached an agreement as to the divorce and as to custody and financial matters. In this case, the procedure is simplified.

On account of the sensitive matters at issue and their major financial and personal consequences, the assistance of a lawyer is required in some courts. The application for divorce must include:

• the court seized
• details of the spouses
• the subject-matter of the application
• a statement of the grounds for the dissolution of marriage and the form of order sought
• the existence of children born in or out of wedlock to or adopted by both spouses during the marriage.

(for more information: https://www.giustizia.it/giustizia/it/mg_3_1_2.page?tab=d)

The joint application for divorce must be signed by both spouses and can be submitted to the court of the place of residence or domicile of either spouse.

If both spouses live abroad, the application may be made to any court in the Italian Republic.

If one of the spouses is in prison, he or she may sign the application and the lawyer’s appointment with signature certified by the prison director. On the day of the hearing, the incarcerated person will be transferred to the Court on his/her request.

(for more details: https://www.giustizia.it/giustizia/it/mg_3_1_2.page?tab=w)

Additional information can be found on the websites of the courts:

• URP (Public Relations Office) of the Court of Genoa
  (https://www.ufficigiudiziarigenova.it/comefare.aspx?id_ufficio_giudiziario=458&cfp_id_scheda=1678)
• Court of Varese
  (http://www.tribunale.varese.it/index.phtml?Id_VMenu=1339)

Relevant legislation:

Law No 898 of 1970 as amended (Rules on the dissolution of marriage, also known as Divorce Law); for legal separation, Articles 706-711 of the Civil Code remain applicable.

 

Legal aid to cover the costs of the procedure

It is possible to obtain legal aid (patrocinio a spese dello Stato) and hence legal representation without having to pay the lawyer’s fees and other court costs. Legal aid is also available to foreign nationals legally staying in Italy. The eligibility conditions are set out in Law No 1990/217. Applications for legal aid must be submitted to the relevant bar association (Consiglio dell’ordine degli avvocati); see the bar association websites and the Ministry of Justice’s website.

Relevant legislation: Law No 217 of 1990, as amended by Law No 134 of 2001. (On access to legal aid for low-income individuals)

 

Appealing a decision relating to divorce/legal separation/marriage annulment

Legal separation, divorce or annulment orders can be appealed. Non-final rulings in divorce proceedings (e.g. rulings on the spouses’ status) or in separation proceedings (e.g. rulings on responsibility or on maintenance payments) cannot be challenged at a later stage, i.e. together with an appeal against the final judgment: they must be challenged within the ordinary legal time limits.

 

Obtaining recognition in Italy of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State

Regulation (EC) No 2201/2003 of 27 November 2003 applies. It provides for a standard procedure in all EU Member States.

Recognition is automatic. Therefore, no special procedure is required for updating the Italian civil status records following a judgment relating to divorce, legal separation or marriage annulment against which no further appeal may be brought.

However, any interested party may apply for a decision that the judgment be or not be recognised. The grounds for non-recognition are set out in the Regulation. The application to this effect must be lodged with the court of appeal with jurisdiction over the place of implementation of the judgment, in accordance with internal law. The court shall rule without delay, with or without hearing the other party, and the ruling is notified to the applicant.

 

Competent court for actions for the non-recognition of judgments relating to divorce, legal separation or marriage annulment issued by a court in another Member State and applicable procedures

Either party may lodge an appeal against a recognition decision before the court of appeal which issued the decision, within one month of its notification (two months if the other party is resident in another country). At this second stage, both parties must be heard in accordance with the ordinary adversarial principle, and the ordinary rules of litigation apply.

The ruling delivered on this appeal may in turn be appealed before the Court of Cassation (see the Annexes to the Regulation).

 

Applicable law in divorce proceedings between spouses who do not live in Italy or who are of different nationalities

Legal separation and divorce are governed by the law of the country of which both spouses are citizens at the time of the application for separation or divorce. If the spouses are of different nationalities, the law of the country in which most of their marital life takes place, as determined by the court, is applied.

Where the applicable foreign law makes no provision for legal separation or divorce, Italian law applies (Article 31 of Law No 218 of 1995), as in this case the lex fori prevails. It should be noted that Italian law applies irrespective of whether the applicant is an Italian national: indeed, its application may also be invoked by a non-national in a mixed marriage or in a marriage of two non-nationals.

Italian spouses who have lodged applications for legal separation or divorce in Italy are subject to Italian law even if they are not resident in Italy. Spouses of different nationalities are subject to the law of the country in which most of their marital life takes place; however, where the law of the country in question does not provide for legal separation or divorce, the Italian court will apply Italian law.

• Legal separation means that the law no longer requires the spouses to live together. Mere de facto separation is without effect (except for separations before the new Family Law No 151 of 1975).
• Legal separation does not break up the marriage tie but weakens it.
• Legal separation may be by order of the court or by mutual consent.

Relevant legislation:

Civil Code (Royal Decree No 262 of 16 March 1942)

the substantive rules are set out in the Civil Code (Articles 150 et seq.; on questions regarding inheritance, see Articles 548 and 585)

For more information: https://e-justice.europa.eu/content_divorce-45-it-it.do?member=1

 

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