FAMILY LAW IN ITALY: A SHORT GUIDE FOR EXPATS
In The Light Of The Latest Reforms of April 2015
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 unconsciounable, unreasonable or unfair
However, a considerable number of couples are nowadays opting for separation of assets at the moment of marriage (64,2% ISTAT Census 2011).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.
SEPARATION AND DIVORCE: CONTRACTS AND ORDERS
In an absolute majority of cases, divorce in Italy follows a one-year separation period (only 6 months for consensual divorce: reformof April 2015). The law provides for other 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 photocopy of the first (separation) though not as far as legal fees are concerned, which are simply doubled! One more reason to choose to negotiate (see below)-
Unlike other countries, a couple that wishes to divorce in Italy needs to seek an Order from the President of the local Court (Tribunale) to live in a state of separation, regardless of the presence of children, properties, or length of the matrimony.
This application for separation must be filed with the Local Court (art. 706 civil procedure code).
Separation and divorce in Italy is a no-faults 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).
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(“unreasonable behavior” is enough and this is then listed as “intolerable continued cohabitation”). 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 the law when a Joint Application application is filed, as long as there are no children. The parties can submit any legal arrangement whatsoever.
The Court will be ready to overrule a Consent Order following the Separation agreement only when this contrary to the interests of the children.
Only a few, very recent, decisions seem to allow 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.
Contrary to this very short, and inexpensive Joint Application, when the Separation or Divorce Order is a result of contentious proceedings (fewer than 10% in 2007) the average length of such proceedings will be that of two to three years, and sometimes longer.
ORDERS AND AGREEMENTS ABOUT HOUSING & ALIMONY
Children must be supported until they become financially independent (25% of the annual income per one child is generally considered an average support amount).
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 the default Court decision since 2006 (article 337 ter of the civil code), except when there are serious grounds for challenging this request (337 4th e.g. when one spouse is addicted to alcohol, drugs or behaves dangerously).
Finally, 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 ever be awarded by the Court for any reason whatsoever (art. 9 bis II alinea, Divorce Law)
The Civil Code provides other regulations regarding the Estate Succession of divorced couples.
DE FACTO FAMILIES, COHABITATION AND CIVIL PARTNERSHIPS.
De facto couples (as opposed to married couples) receive little or no protection as such 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 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 couples in the absence of children.
Civil partnerships, and same sex unions remain totally unregulated by the law.
Some changes in the “case law” are still in progress and for instance -although nothing like a spousal support is being provided for, by the Italian law- several judgments have recently awarded a redress of damage for “the breach” of a cohabitation to the weaker partner. The matter is evolving very fast (last important decision of the Supreme Court on April 2015): therefore always have a quick check with an expert lawyer before making any decision, to be on the safe side.
The new Legislative Decree 2014/1323 coming 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 mediation needs approval by the Court but no hearing is required. .
Rome, last updated April 30th 2015
Avv. Marco Calabrese, International Family Lawyer.
Dr. Stefania Citone, JD & LLM in Family Law