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I assume that we all know that, while a divorce legally dissolves the marriage, a legal separation is a Court’s Order that mandates the rights and duties of the couple while they are still married but living apart.
In Italy, as you may know, traditionally we have always had a mandatory two steps proceeding: a legal separation is like putting your marriage on hold until you get a divorce. Typically, both spouses would move to different homes and start living separate lives. After a cooling-off period of legal separation -that generally equals to six months (separation by consent) or one year (in case of litigated divorce)- the parties to a marriage are allowed to seek a divorce order and terminate their matrimonial life.
Other possible grounds for divorce are: annulment, dissolution or a new marriage entered into by the other spouse abroad; non-consummation of the marriage; and change of sex. As you can see, being the cooling-off period dictated by the Court very short, the other cases of divorce listed above are quite uncommon.
There are some key differences between legal separation and divorce: but as far as the purpose of this article is concerned it is important to know that a LEGAL separation means that a mere DE FACTO separation is without effect: you always need to get an order of the Court for the cooling-off period to start running. This double step Court process implies that two separate proceedings have to be started in Court: at least this is what happened until the so called Cartabia Reform came into force on 10 october 2022, D.Lgs.149 (from the name of the proponent of the Law: the former Minister of Justice Marta Cartabia).
These two orders had to be sought separately: one after the other. First of all, the spouses needed to apply for legal separation, whether by consent or litigated, and only after getting an order of Legal separation could they finally apply for divorce.
Consequently, despite the fact that over 85% of legal separation orders were issued by consent, and not at-fault, you could hardly hope to get to a final divorce order before 24-36 months.
SO, WHAT IS THE BIG NEWS?
The big news is that since the Reform Law was fully introduced (March 1st, 2023) married couples may apply for separation and divorce simultaneously. In other words, a Legal Separation Order that mandates the rights and duties of the couple while separated is issued immediately. The court proceeding will be put in a stand-by mode for six months or one year (in case of litigated divorce): then the divorce order will be issued immediately without the need to apply a second time for a divorce order.
This also applies to same-sex couples, whose marriage is called Unione Civile.
Legal fees are expected to be seriously diminished, if not halved.
Marco Calabrese is an International Family Law Attorney and Collaborative Attorney shortlisted by the US and UK Embassy in Rome Owner of the Family Law Italy, a boutique law firm, located in Rome, Italy.