Italy
An international divorce is very different from other divorces.
Consideration must be given to the court’s jurisdiction, applicable law, recognition of the foreign marriage and enforcement of the court’s order.
When a parenting plan has to be made, it is more complicated when the parents do not live in the same country.
On this page you can read how this is regulated in Italy.
Country Reporter:
Alessandro Gravante
Alessandro is an international family lawyer in Italy, with over 20 years of experience in litigation. He is qualified to act before the Italian Supreme Courts.
He is a Senior Partner at Giambrone & Partners, with offices in many different countries.
Alessandro has volunteered to keep this page about Italy up to date.
Lawyers and mediators in Italy
We provide a list of lawyers and mediators in Italy, who can assist you with your international divorce.
Divorce procedure: Italy
Divorce procedure
Under Italian law, it is not possible to apply directly for divorce (apart in very rare cases such as tentative homicide of the spouse or homicide/tentative homicide of a child or if the other spouse has been sentenced to life imprisonment), but it is always necessary to apply for legal separation first.
Only after 6 months (if the separation proceedings have been consensual) or 1 year (if the separation proceedings have been contentious) from the date in which the spouses attended at the hearing in front of the President of the Court and after the separation order becomes final and not appealable (res iudicata), it is possible to apply for the divorce.
The separation/divorce proceedings have been reformed in March 2023 when the new family proceedings law (Riforma Cartabia) entered into force.
In order to apply for separation/divorce, it is necessary to lodge an application to the Court (ricorso) with the assistance of a lawyer.
The Court will then schedule a hearing for the spouse to personally attend; the hearing has to take place within 3 months.
The Court will also order the petitioner to serve copy of the petition and of the order on the defendant, who needs to lodge a defence 30 days before the hearing.
The petitioner can reply to the defendant’s defence 20 days before the hearing, providing also the evidences to be submitted to the Court; the defendant can lodge a new defence 10 days before the hearing and the petitioner can lodge a final reply defence 5 days before the hearing.
Both parties need to lodge the last 3 years tax returns, copy of the bank and credit card statements for the last 3 years and a sworn declaration on the financial assets, properties, income etc.
At the first hearing, the Court interrogates the spouses and tries to make them reconcile; if a reconciliation or an agreement is not possible, the Court issues an order with the interim decisions on spouses’ alimony, marital dwelling, parental authority, placement, visitation rights and maintenance for the children.
In the same order, the Court takes a decision on the evidences provided by the parties and schedules the court proceedings’ hearings to get oral evidences, such as interrogation of the witnesses, expert determination and financial investigations.
In the final judgment, the Court pronounces the legal separation/divorce and issues the final orders in respect to spousal alimony, marital dwelling, parental authority, placement, visitation rights and maintenance for the children.
The Court also gives instructions to the Municipality where the marriage is registered to record the separation/divorce order.
Since March 2023, it is possible to apply jointly for separation and divorce with the same petition, so once the separation judgment is issued and becomes final, the Court will automatically schedule the first hearing for the divorce, without the necessity to lodge a new petition.
Italy does not allow same sex marriage; therefore, same sex couples can apply for the so called “unione civile” or civil partnership, that awards similar rights to the parties as for the marriage, as for choice of surname, community property/separation of assets, duty to provide moral and material assistance, to live together and to contribute to shared needs.
The main difference between marriage and civil partnership is on the rules on adoption as same sex couples have no access to it and on the legal discipline of the relation between a child and the partner of the biological parent, who is not recognized as a parent.
Amical divorce: Italy
In respect to amical separation and divorce proceedings, it is necessary to lodge a joint application with the agreement that has been reached by the parties, that must include financial arrangements between the spouses, marital dwelling, placement, custody, maintenance and visitation rights for the children, if any.
Since March 2023 it is possible for the parties to be authorized not to personally attend at the hearing to confirm the agreement, and they will only need to lodge a written skeleton argument to confirm the agreement.
Once the parties confirm the agreement and the Public Prosecutor confirms that it is not contrary to the Italian laws and Public Order, the Court issues the order to approve it.
The parties can jointly apply for amicable separation and divorce in the same petition, so that the Court will automatically schedule the hearing for the divorce after that the separation order is issued.
Amical separation and divorce may also be obtained out of court.
In particular, the spouses can use the so called “negoziazione assistita”, where the separation or divorce agreement is reached by the parties with the assistance of the lawyers only. The lawyers will then need to get the approval of the Public Prosecutor and register the separation/divorce at the competent Municipality.
Another option of out of court consensual separation and amical divorce is registering the separation or divorce agreement at the Municipality where both or one of the spouses lives or where the marriage has been recorded.
This option is only possible when there are no minor children in the family or when the children are more than 18-year-old and financially independent and when there is no transfer of property between the parties.
The spouses need to book an appointment at the Municipality to lodge a written agreement and they need to confirm it again attending the Municipality at a second meeting that needs to take place after a minimum of 30 days from the first one.
In this case, it is not necessary to be assisted by a lawyer.
Treaties and regulations: Italy
Italy is member of the European Union so EU Regulations apply.
In particular:
EU Regulation n. 2019/1111 (Brussels II ter) on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction
EU Regulation n. 2009/4 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
EU Regulation n. 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
Italy is also a Contracting State to the 1996 Hague Convention on Parental Responsibility and Protection of Children as well as the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance of 23 November 2007.
Court decisions: Italy
In contentious separation and divorce proceedings the main court orders are interim decisions and final order.
Any order must include personal and patrimonial arrangements between the parties and decisions on family home and children, if any.
Separation and divorce proceedings cannot deal with the division of assets; the division of assets must be dealt in a separate court proceeding and it can be initiated only after the first hearing in the separation proceedings, when both parties are authorized to live separately.
Interim decisions are issued at the end of the first hearing when both parties personally attend and are interrogated by the Court.
Interim decisions relate authorization for the spouses to live separately, alimony, marital dwelling, parental authority on children and placement, visitation rights and child support.
The family home is always assigned to the parent where the children are going to live and ownership has no influence on it.
In respect to alimony and child support, there are no schedules to be applied to determine the relevant amount; the Court determines it on the basis of the financial capability of the parents, time spent with the children, children’s needs and standard of life.
In relation to parental authority, the standard rule is joint parental authority; exclusive parental authority is awarded only in exceptional cases, when there is a high risk for the wellbeing or security for the child, in case of violence, addiction ecc.
The final order overrules and replaces the interim decisions.
The spouse who is awarded with alimony has the right to get a share of the TFR of the other spouse when he/she retires, in proportion to the duration of the marriage. In case of death of the spouse who was ordered to pay alimony, if he was retired, the other spouse has the right to get a share of the pension.
Children : Italy
Since March 2023, when there are children in the family, the parents must lodge a parenting plan together with the separation or divorce petition.
The standard rule is joint parental authority except when there is a high risk for the wellbeing of the child, in which case exclusive parental authority is awarded.
Parents must contribute to the children’s needs in proportion to their financial capacity, time spent with the children, with the view to guarantee them the same standard of life as during the marriage
Young children are usually ordered to live with the mother with at least 2 days per week visits and alternate weekends to be spent with no-custodial parent.
Usually, children under 3 years are not ordered to stay overnight with the non-custodial parent.
Recently it is becoming more common equal time sharing, in particular when children are older.
The Court must interview the child if 12 years old or more; the Court can also interview the child even if younger than 12 years if the child is mature enough to talk to the court.
When there is a high conflict between the parents or when the Court believes it is in the interest of the child, the Court appoints a Curator for the child to represent the child in Court.
Relocation of the parent living with the children is not easy.
The parent who is seeking relocation in a different city or country needs to provide the Court with evidence that the relocation is in the best interest of the children.
In order to take a decision on relocation, it is a common principle that Court needs to take into consideration
1) the motivations for the relocation;
2) the protection of the time to be spent with the children;
3) willingness of the other parent to move in order to allow him/her to maintain his/her parental role;
4) safeguarding and guaranteeing the child’s relationships with the other key figures and family members;
5) effects of the relocation on the child;
6) analysis of the characteristics of the social and family environment to which the parent intends to move compared to the current one;
7) age of the children.
Legal aid: Italy
If you are residing in the Italy or if you are involved in a legal procedure in Italy, you can get free, non-means, non-merit tested legal aid from a panel solicitor.
To find out whether you can get subsidized legal aid, you can visit the government website.
Websites : Italy
Blogs about Italy
An analysis of the law in cases of cumulative separation and divorce proceedings in Italy
In Italy spouses must wait for a period of 12 months (starting at the day of the first hearing in the separation proceedings) to get a divorce. Or 6 months, if it is a seperation by mutual consent. But what if a mutual agreement is reached after the procedure was started? Italian Family lawyer Alessandro Gravente explains.
Case law in Italy
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