Divorce and Child Proceedings in Italy
Welcome to our Italian Family Law Team
For over a decade our Family Law Department has been providing assistance to people with Family law issues.
Our Italian Family Law Team, which is led by Partner Avv. Alessandro Gravante and Avv. Nicoletta Neglia, comprises a team of Italian lawyers who specialise in advising exclusively foreign clients on divorce, ancillary relief, judicial separation and child proceedings throughout Italy. Our Italian attorneys provides a range of services which include divorce and separation, children and financial disputes, civil partnerships, cohabitation issues and associated property disputes.
We have all the competencies to protect clients with complex financial conditions or diverse sources of income. Our legal experts in family law at the firm offer legal advice to those who intend to submit an application to the C.S.A. to take advantage of a contribution to child support.
The firm is also able to assist on every aspect of family and children’s law, including custodial parent rights and the creation of an alternative family structure.
At Giambrone we have a specialised children department with specific competencies in international children’s law.
We welcome clients of different nationalities from around the world and our English and Italian speaking lawyers can assist clients involved in complex cross-border divorce cases.
Our Italian lawyers act for international clients across Europe and internationally who are embarking on divorce or separation in Italy.
We are one of the first family law teams who has specialised in “Collaborative Divorce Proceedings”, which have been introduced by the new Legislative Decree 2014/1323
This new Decree has introduced “Assisted Negotiation” as a compulsory step for Separation and Divorce proceedings in Italy; the new procedure is similar, in broad terms, to divorce through mediation rather than via the judicial proceedings courts, although lawyers are required to represent each party. Any agreement reached through “Assisted Negotiation” needs approval by the Court but no hearing is required.
At Giambrone, our multilingual divorce lawyers offer you legal advice in:
- Divorce and separation;
- Italian child abduction;
- Forced marriage cases;
- Custodial parent rights;
Our aim is to offer the appropriate solution to the customer respecting both the legal background and specially the human aspects of each case minimising the impact of the stress involved in the process.
Giambrone’s Family Law Team includes members of the International Bar Association as well as many international family law organisations and has well-established connections with other international law firms worldwide.
Judicial separation in Italy
The Italian legal separation of the spouses is regulated by the Italian Civil Code, the procedural code and related statutes.
When a couple decide to separate, they need to personally appear before the President of the local Court (“Udienza Presidenziale”) who offers them the choice of reconciliation or a formal separation (separazione formale) for one year. Financial matters should also be dealt with at this time.
There are two types of legal separation in Italy. The first is consensual separation, which stems from a mutual agreement between husband and wife, and which is then approved by the court. The second is judicial separation, in which hearings and discussions are normally involved before an agreement is reached and the judge determines which spouse is responsible for the failure of the marriage.
The legal separation in Italy is a temporary measure as it does not terminate the effects of the marriage; the main consequences are that the joint ownership of assets between the parties is divided, the duty of cohabitation under the matrimonial home is interrupted and the duty of marital fidelity is no longer applicable.
Separation in Italy is a no-faults system but being able to successfully blame the other for the breakdown of the marriage is an important factor to establish the right to ancillary relief and maintenance
Within the judicial separation proceedings, the parties come to a temporary determination of their personal and financial circumstances and interim orders are made in respect any ancillary relief and patrimonial issues; the attribution of the family home; the maintenance (usually in favour of the wife) and the custody and visitation of the children
Divorce in Italy
In an absolute majority of cases, divorce in Italy follows a one-year separation period, or only 6 months for consensual divorce, following the "fast track" divorce reform of April 2015.
Since April 2015, Italy has reduced the time it takes to get a divorce to six months from three years as the so-called "fast track" divorce reform” has reduced the time a divorcing couple has to wait for a divorce to six months in uncontested cases and a year in contested ones.
Before the reform, a couple divorcing by consent had to wait three years to be divorced but couples not divorcing by consent should have waited up to five years after fault has been proved.
The proceedings for divorce are expressly regulated by the Italian civil code, the civil procedural code, and by Statutes no. 898/1970 and no. 74/1987. Under Italian law, a divorce is the legal dissolution of the marriage, which puts an end to the spouses’ legal duties and responsibilities deriving from the marriage
Anyone could apply for divorce in Italy if the marriage took place there or if a member of the couple is Italian or a resident in the country. For two non-Italians or when only one partner is Italian, foreign law may take precedence over Italian law.
The mother is usually given custody of the children, with access for the father on terms to be agreed between the parties, and once they reach the age of ten, the children can decide which parent they want to live with.
As in the case of separation, the divorce proceedings can occur by mutual agreement or on a contested basis.
In the former case, both the spouses agree on the terms of the divorce and they both file a joint application for divorce with the competent Court. They can be represented by the same lawyer if no conflict arises.
In the latter scenario, each spouse can be the “applicant” to file the petition for divorce and the grounds for divorce are indicated in art.3 of the Divorce Statute law 898/1970
No minimum standards for the division of matrimonial assets are set by the law in the case of uncontested divorces, as long as there are no children, as the Court will not usual interfere with the free determination of the parties. A Court may overrule a Consent Order when it would be contrary to the interests of the children.
In general, consensual divorce proceeds fairly quickly; judicial procedures, on the other hand, are more time‑consuming and depend upon the individual circumstances. After the decree absolute issued by the Court, the parties can get re-marry and the wife loses her former husband’s surname.
The protection of the children in Italian divorce proceedings
The Court must also take into consideration the interests of the children.
During both the judicial separation and the divorce proceedings, the judge will determine which spouse will have custody of the children, if any, and establish the type and amount of support the other spouse will provide.
At any time after the separation, the spouses may request a review of the conditions on which the separation was granted, especially in regard to the exercise of parental authority, amount and type of child support. Spousal support may also be sought if the spouse seeking support was not at fault for the separation and has no means or insufficient means for his or her support.
Children must be supported until they become financially independent and, although there is no age limit for financial independence, usually the standard test applied by the Italian Family Courts is when the child reaches the age of 26 in case of University studies. The average child support is equivalent to 25% of the annual income per child
The matrimonial home is allocated to the parent who also retain custody of the children until they become independent but full ownership of the family home will be transferred to the original owner as soon as the children become independent.
Alternatively, if the matrimonial home is jointly owned, after the children become independent, it is normally sold and the proceeds shared between the spouses.