1. How can we divorce in Italy and where?
Divorce in Italy always follows a judicial proceeding. The couple or one of the spouses must lodge an application for divorce (ricorso) in front of the competent Court.
The application must be filed to the Court of the place of spouses’ last residence, or of the other spouses (convenuto) place of residence, or if he/she resides abroad, of the place of residence or domicile of the applicant. If both parties live abroad in front of any Italian Court.
2. What are the most common reasons that spouses may invoke?
In Italy there is not a “consensual” type of divorce, you are only allowed to divorce under the circumstances indicated in art 3 (l. n.898/1970), and only if the necessary preliminary requirement is met, that is, if the spiritual and material communion between the spouses has ceased, and it cannot be restored.
Divorce may be asked under art. 3 when the other spouse has committed specific serious crimes; has obtained abroad the annulment or the termination of the marriage; if the marriage has not been consummated; if one of the spouses has legally changed their gender.
In addition to the above mentioned cases, the main reason for divorce in Italy follows a phase of separation, that can be judicial or consensual.
3. How long does it take to divorce in Italy?
Two different periods of time apply after the phase of separation, depending on if it was judicial or consensual.
If the spouses cannot agree on the terms of the separation, the Court will decide with a judgment having the force of res judicata (judicial separation). The separated couple may request a divorce after 12 months from the date of the hearing.
In the case of a consensual separation (the agreements reached by the spouses are approved by the President of the Court) the period of time before they can file for divorce is reduced to 6 months.
The 6 months period of time also applies if the spouses decide to separate via assisted negotiation or through a declaration given in front of the mayor (ufficiale di stato civile).
4. What are the consequences of a divorce?
Divorce ceases matrimonial ties, and the divorced couple can contract a new marriage (there are some exceptions, i.e. under art. 89 c.c. the woman cannot marry during the 300 days following the divorce).
Other aspects that need to be settled regard the exercise of parental authority in case of minor children and the division of the assets between the couple.
A spouse may be obliged to pay a periodic check to the other spouse if he/she does not have adequate means to survive.
It is important to point out that divorce also ceases the civil effects of a catholic marriage concluded in accordance with the Patti Lateranensi signed in 1929 and then modified by the Accordi di Villa Madama of 1984 (matrimonio concordatario).
5. Is my presence necessary when divorcing?
Divorce is characterized by a proceeding that initially takes place in front of the President of the Court, that will listen to the spouses- separately and then together- attempting to achieve a conciliation. If it is not possible, after hearing the spouses, their lawyers and the minor child, and deciding what urgent and temporary measures are necessary, the President will nominate a judge scheduling the hearing at which the spouses will have to appear in front of him.
It is mandatory for both spouses to be present personally during the hearings.
6. What kind of temporary measures concerning children can be ordered during divorce proceedings?
During a divorce case, the court may order temporary measures regarding the children’s residence, the right of the spouse to keep in touch with his/her children, the obligation of one of the spouse to pay child support.
7. In case a parent lives in another EU State, is that an obstacle for joint custody?
No, a parent living in another EU State is not an obstacle when applying for joint custody.
8. How can a divorce resolution issued in Italy be acknowledged in another EU State?
A divorce resolution is automatically recognized in another EU country.