Judicial separation and consensual separation in Italy
In Italy, the legal separation does not break up the marriage: unlike a divorce, it is temporary, so that the spouses can reconcile without involving a Tribunal or the City Hall.
Nevertheless, a legal separation does have a significant impact on the spouses’ lives, as it divides the legal communion, the duty of marital fidelity and the necessity to cohabitate.
For the Italian Law, there are two types of legal separation: the consensual separation and the judicial separation. The latter comes into play when the spouses cannot reach an agreement on crucial aspects such as the economic claims or the management and custody of children.
Let’s see the difference between the two.
The consensual separation in Italy
A consensual separation is so called because the spouses manage to amicably make a personal separation agreement.
This agreement regulates financial and non-financial aspects, including:
> care and custody of the children
> access rights of the children
> the amount of maintenance or child support to be paid, if any
> the allocation of the matrimonial home and other property forming part of the community of acquests.
The personal separation agreement must be submitted to the analysis of the competent Italian court, in order to assess that the conditions are consistent with the law and that the rights of the offspring are respected. Once a joint recourse is filed, both spouses are called to appear before the court for the compulsory attempt to reconcile required by the Italian law. The Italian Court may take necessary measures in safeguarding the weaker (non-moneyed) spouse. From this date, the three-year term necessary to be entitled to divorce begins to accrue.
The judicial separation in Italy
The judicial separation is a procedure that can be started upon the request of one of the spouses, when:
> marriage obligations have been violated by one of the spouses (e.g. duty of marital fidelity, cohabitation, etc.).
> the relationship between the spouses is no longer sustainable for objective circumstances, and there is no agreement on separating by mutual consent.
If any duties descending from the marriage have been violated, the appealing spouse can ask for a judicial separation “with charge” (‘con addebito’). If the charge is recognized by the Court, the other spouse may lose some rights, such as the right to maintenance.
As in consensual separations, a first hearing before the Court is scheduled and both spouses are obliged to try to reconcile. If they don’t, the ordinary proceedings carry on, ending with a final judgment granted by the Italian Court.
In some cases, the Court can immediately pronounce the separation of the spouses and carry on the proceedings just on the disputed matters. In this case, the three-year term for the spouses to be entitled to task for the divorce starts to accrue from the first hearing, so that they could require the divorce before the definitive judgment of separation is granted.
A proceeding for judicial separation in Italy can also be converted into a proceeding for separation by mutual consent.
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