The Court of Udine (Order 3 October 2024), in the context of a cumulative separation and divorce proceedings introduced pursuant to Article 473bis.49 of the Code of Civil Procedure, found that the time limit of 12 months from the parties’ appearance at the separation hearing had not elapsed, as a temporal requirement provided for by Article 3 of Law no. 898/1970 for the pronouncement of dissolution of the marriage bond.
Specifically, the separation and divorce proceedings had been commenced as litigation and, at the separation hearing held in January 2024, the parties had formalised a consensual agreement.
At the hearing set for the divorce, the Court noted that the period of 12 months had not elapsed since the parties’ appearance at the separation hearing, on the assumption that the separation was introduced as contentious, albeit concluded by agreement between the parties and not by mutual consent.
In support of the decision, the court referred to the wording of Article 3 of Law 898/1970, according to which ‘the separation must have lasted uninterruptedly for at least twelve months from the date of the hearing at which the spouses appeared in a contested separation proceedings and for six months in the case of separation by mutual consent, even when the contentious proceedings have turned into a mutual agreement’.
I believe this decision is wrong.
As a preliminary remark, a correct reading of the law, even if perhaps it is not exactly clear and straightforward in its drafting, leads to the conclusion that Article 3 provides for a six-month period even when the separation proceedings have been changed from contentious to consensual.
In respect to the court decisions on this point, in the last few years the Italian Courts (for example, the Court of Milan, judgment no. 37959 of 9 July 2015, rendered shortly after the 2015 amendment and the Court of Verona, judgment no. 761 of 16 May 2020) had observed that article 3(2)(b) of Law no. 898/70, as amended by Law no. 55 of 6 May 2015, specifies that the six-month (and not annual) time limit is applicable for the purpose of filing a divorce petition, even where the separation, which started as contentious, has turned into a mutual agreement.
This view is based not only on the law but also on the fact that, otherwise, it would create an unnecessary unequal treatment, which is contrary to the principles of fair process pursuant to Article 101 of the Italian Constitution and the aim of the new legislation, which is to reduce the time required to dissolve the marriage.
In addition, anchoring the different running of the time limits for instituting divorce proceedings to the type of petition that introduced (contentious or consensual) or settled the separation (decree of approval or judgment) would constitute a disparity of treatment between substantially identical procedural situations, although formally distinct in relation to the nature of the final judgment, which does not appear to be unequivocally linked to the wording of Article 3 of Law no. 898/1970.
For the sake of completeness, the time limit for filing a divorce runs from the time the spouses appear before the Judge when he authorises them to live separately in the separation proceedings and, in the case of judicial separation converted into a consensual separation, the effects of the separation (including that relating to the termination of the legal communion regime pursuant to Article 191 of the Civil Code) always run from the first hearing.
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