Divorce is a relatively recent development in Italy and has only been legal since 1970. There have been several amendments to the laws since then, and now you must normally go through a period of legal separation before you divorce. So how does divorce work in relation to Italy? What is the separation process? How do child custody and access arrangements work? And how are assets and property divided on divorce in Italy? Here we discuss these issues and more.
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Separation before divorce in Italy
If you want to divorce in Italy, you must first go through a period of separation (apart from some exceptional circumstances – see below).
Separation does not end your marriage, but you no longer have to live together, remain faithful, or legally share property. However, you do continue to be responsible for any children and any dependent spouse.
There are two main types of separation in Italy: mutual consent and judicial separation.
Separation by mutual consent
If you agree to the separation, you can submit a joint request. If you have come to agreements regarding the division of property and arrangements for your children then the court can approve these.
As you have to be separated for six months before you can get a divorce in Italy, the six-month period starts from the date of the hearing.
If you do not agree on the conditions of the separation then you will have to go through a judicial process.
Here, one of you will submit a request for separation based on the fact that you can no longer live with your spouse. A court will hear from both of you and then determine which of you is responsible for the failure of the marriage. They can then agree the separation.
Divorce laws in Italy
In 2015, the divorce law in Italy changed and reduced the separation period required to get a divorce. Previously, you had to be separated for three years to apply for a divorce, but now you have to be separated for:
- 6 months in the case of mutual consent
- 1 year in the event of judicial separation.
Most divorces in Italy are on the ground of separation. However, there are other grounds for divorce such as:
- your spouse has committed a serious crime and has been sentenced to a prison term of 15 years or more
- your marriage was not consummated
- your spouse has legally changed their gender
- violence towards you or your children.
Child custody and support arrangements in Italy
If you can agree where your child should live, contact and support payments then a court can accept your agreement. If you can’t agree, a court will make a ruling.
Since 2006, ‘shared custody’ has been the default legal regime. Here, both you and the other parent must actively participate in the care of your child, and you both should be involved in major decisions regarding your child.
Sole custody is now only ordered in exceptional cases where it is not in the best interests of a child for shared custody to be granted (for example, if one parent is violent or is an addict).
While shared custody is the default position, this does not mean that your child should spend an equal amount of time with each parent. It is unlikely that your child’s best interests will be met by alternating between two homes, and so in most cases your child will live mainly with one parent and have regular contact with the other parent.
Factors that the court will consider when ruling on child arrangements include:
- your child’s age, gender and health
- each parent’s ability to provide for your child
- the emotional bond between your child and each parent
- your lifestyle
- whether there is a history of any abuse or harm.
If your child is aged 12 or over (or under 12 where a court deems it appropriate), their wishes and views will be considered when a court makes an order.
Italy is signatory to both the Hague Convention on Child Abduction and is party to the Brussels IIa regulations. If your child is taken out of Italy without your consent, or taken to Italy from another EU or Convention country, you can apply to the appropriate authority in Italy for assistance in ensuring your child is safely returned to their ‘home’ country.
How property is divided, and support payments are agreed after divorce in Italy
If you separate by mutual consent and submit a written agreement regarding the division of your property, the court can approve this. Note that the court only provides approval for any transfer of property – you will need a separate deed to actually undertake the transfer.
Similarly, the judge presiding over your separation/divorce proceedings only has powers to issue orders for either spousal or child support. They have no powers to issue orders to transfer assets or property from one spouse to another. This must be done in separate proceedings.
The default ownership regime in Italy is that of ‘common ownership of property’. Any assets acquired either individually or jointly during your marriage fall under common ownership (with some exceptions; often personal assets or inheritances).
A court will generally order that the family home is awarded to the parent with whom your child lives, in order to minimise disruption to your child’s life.
As Italian divorce law still sometimes has a ‘fault’ element, the spouse who the court considers is not to blame for their end of your marriage is entitled to support.
In the past, such spousal support payments had been ordered with the aim of ensuring the spouse enjoyed the same standard of living after divorce. This meant that such payments were often generous in nature.
However, a recent ruling in the Italian court has stated that payments should now be aimed at ‘ensuring the independence or self-sufficiency of the spouse who requests it’. This means that if you have independent assets or you are capable of working then any support payments you receive may be smaller than in the past.
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