Lawyers for Separation and Divorce in Italy | Family Law
Dimarco & Partners International Law Firm
Our Lawyers in Italy are specialized in separation and divorce legal assistance in the whole italian territory. In our team, all the professionists are english speaking lawyers. In Italy it is possible to require different court trials or in-house procedures, depending if between the housband and the wife there is a will to reach an agreement or not. In Italy it is compulsory to file the separation to obtain the divorce with a separate procedure. The experience of our italian lawyers can often permit the parties to find an agreement before the court trial also in cases of important conflicts between the housband and the wife. During the years we assisted many expatriates ("expats"), advising in english and providing a very understandable and clear assistance for a foreign Client.
We can resume the family law concerning separation and divorce proceedings in Italy as follows:
1. SEPARATION IN ITALY BY MUTUAL CONSENT IN FRONT OF THE COURT
If the parties agree on the conditions of the separation they can hire an italian lawyer to file a lawsuit - in favour of both of them - to require the judge to confirm the conditions purposed. The judge sets a court hearing in which the parties wil be heard personally in order to evaluate their common will of separation and in order to check the correctness, according by the law and by the concrete situation, of the conditions required by the housband and the wife.
After the evaluation, the judge will issue a judgement (homologation) that will allow the parties to live separate.
The main elements that will be examined are the destination of the family house where the parties used to live together, alimonies in favour of one the parties or in favour of the children, custody and visitation of the children and the division of the assets like cars or bank account.
The marriage is not broken at the end of this procedure but the judge authorize the parties to live separated, without the duties of marital fidelity and cohabitation. The ratio of this procedure, together with the time the parties have to wait before filing for the divorce, is studied to permit the couple to reconciliate. Before the time to file the divorce was 3 years, reduced to 6 months by the law 55/2015. After the separation, at any time, the parties can file a recourse to modify the conditions of separation.Normally the first court hearing takes place in 3/4 months after delivering the lawsuit to the competent court, and the judgement requires in the biggest court districts 3 or 4 months to be available.
2. IN-HOUSE SEPARATION IN ITALY MADE BY THE LAWYERS "NEGOZIAZIONE ASSISTITA"
Recently the decree 132/2014 introduced in Italy the procedure called "negoziazione assistita", which is the fastest in case the parties are willing to find an agreement concerning the separation, the family house, the custody of children, the alimonies and the division of the goods instead of filing a lawsuit. The in house separation can be used as well for the consensual divorce and to modify the conditions of separation. In this case the lawyers lead all the procedure, without the need to file any recourse to the court, saving a considerable time for the parties.
In the first stage the lawyer of one of the parties "invites" the other party to join the procedure, giving a term of 30 days to communicate the acceptance or the refusal.
Then the parties, with the help of the lawyers, set all the conditions of the separation (or divorce), included the custody of the children, and they are signed directly in the law firm. The lawyers authenticate the signatures of the parties and the agreement is sent to the Pubblic Accusator (Pubblico Ministero) of the competent district (to obtain the confirmation of the conditions) and to the municipality where the marriage was registered.
We always advise to follow this procedure as it takes 2/3 months to be finished and it can be applied to any situation that before needed a Court Trial.
In case there is a transfer of a real estate connected to this procedure, it will not be subjected to "imposta di registro", which is a relevant tax, as confirmed from the Tax authorities, resolution n. 65/E, made on 16.07.2015.
3. JUDICIAL CONTENTIOUS SEPARATION IN ITALY
Our Law Firm, in case the parties cannot reach an agreement in the pre-contentious phase, will represent the client in a judicial separation proceeding, which is an ordinary judgement.
The separation has to be filed to the competent Court which, according to art. 706 of the italian civil procedure code could be, with subsidiaries criterias:
The spouse could also require the Court the separation "with charge" in case some violation of the duties descending from the marriage are ascertain during the procedure (for example if there is a violation of the marital fidelity or the family house is left by one of the spouses).
During the procedure it is possible to treat about the separation, the family home, the custody of the children, the visit of the children and the division of the goods.
The procedure is a normal first instance Court trial where the judge will analyze the proves and issue a sentence of the end of the procedure. The estimated time, in general, is between 1.5 and 3 years.
4. DIVORCE IN ITALY BY MUTUAL CONSENT
Once the parties are separated, they can require the divorce lodging a mutual claim to the court with the same modalities of the separation by mutual consent. This procedure will cancel the effects of the marriage, comprised all the duties from one spouse to the other. The judge will issue the definitive sentence of divorce.
Normally the parties, in order to file the divorce, they have to wait 6 months aftert the separation in case of consensual separation and 1 year in case of judicial separation.
5. IN-HOUSE DIVORCE IN ITALY MADE BY THE LAWYERS "NEGOZIAZIONE ASSISTITA"
As for the separation, it is possible to obtain the separation directly in the office of the italian lawyer, with the same modalities of the in-house separation. Normally the parties, in order to file the in-house divorce, they have to wait 6 months aftert the separation in case of consensual separation and 1 year in case of judicial separation.
6. JUDICIAL CONTENTIOUS DIVORCE IN ITALY
In case the parties do not agree in the conditions of divorce, each spouse can lodge a claim addressed to the Court in order to require the sentence of divorce according to the law 898/1970 and further modifications.
The divorce has to be filed to the competent Court which, according to art. 4 comma 1 could be, with subsidiaries criterias:
The spouse could also require the Court the divorce "with charge" in case some violation of the duties descending from the marriage are ascertain during the procedure (for example if there is a violation of the marital fidelity).
With the divorce the marriage does not exist anymore and the spouses can get married again.
We will be at your disposal in order to provide our profesionality to assist you in separation or divorce cases