EXPLAINED: What you need to know about divorce law in Italy

EXPLAINED: What you need to know about divorce law in Italy
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After her American friend's marriage unexpectedly broke down in Italy, blogger Emma Cuthbertson looks at what foreign spouses need to know about the country's separation and divorce laws.

After ten great years of marriage and a beautiful son, my American friend and her Italian husband decide to relocate from the US to Umbria in Italy.

My friend’s husband has a family home there, and they agree they could better progress careers while having a better quality of life for the entire family.

At first, living in Italy is fantastic. They live close to the husband’s family and his new business ventures thrive. My friend launches herself full-on into local life. She renovates the apartment, learns the language, builds a network of friends in the local community, cooks up a storm of Italian cuisine at home, and nurtures her family.

Eighteen months into life in Italy, my friend’s husband unexpectedly announces that he wants to separate.

Initially they talk and agree to marriage counselling. One morning, however, he gets an unusual 5am call on his cell phone that awakens the whole household. It soon becomes clear that he is having an affair. My friend asks him to leave.

My friend was left mid-air, emotionally and financially. No parachute. No warning.

READ ALSO: Italy's divorce rate shoots up by 60 percent during pandemic

Her husband was absent initially for five weeks, with complete radio silence with her and their son. My friend tried to access their main bank account in Europe, where all their monies had been transferred after the move and sale of their US property. The account was in her partner’s name and access was not possible.

Italian law has no leverage nor jurisdiction to appeal for access to overseas bank accounts under this kind of scenario.

If this happens to you outside of your home country, outside of your cultural safety zone, you will automatically kick into badass mode because you have to. Those qualities of tenacity and perseverance are what brought you overseas originally and ensured that you thrived.

But regardless of your strength and scrappy resourcefulness, it is still incredibly tough to navigate separation and divorce waters alone in a foreign country.

For that reason, we wrote this piece and asked Marco Calabrese, lawyer and founder of Family Law Italy in Rome, to provide some key information about approaching separation in Italy.

Here's what you need to know.

How long does the divorce process take in Italy?

  • It is a two-step process: Separation and then Divorce. It generally takes 6-8 months to obtain a (provisional) Separation Order either by mutual consent, or whereby it is not viable, via a judicial decision granted by a judge. Add roughly one more year to obtain the divorcée status if no dispute follows the Separation Order. The Separation Order is solely a legal agreement to terminate all legally binding aspects of the marriage and any joint ownership of marital assets. Some maintenance and custodial issues may be settled at this point. If agreement is reached, these conditions will be replicated in the divorce settlement a year later.
  •  A Fast Track Divorce system is in place in Italy; commonly used when a couple is able to reach a mutually amicable separation agreement. This path takes around 10- 12 months. Costs are not comparable to those of a divorce under litigation.
  • Alternatively, since 2015 in Italy, there is a collaborative path (negoziazione assistita) whereby the two parties and their lawyers come to a mutual agreement. The lawyers process the paperwork, and a divorce status can be reached in a matter of months without entering a courtroom. Finances may also remain undisclosed.
  • If it is impossible to mutually reach a separation agreement the average timelines for divorce in Italy are around five years minimum to complete the two steps. If one or both spouses wishes to remarry it is possible to obtain divorcee status (in around 18 months) even if maintenance or custody of the children are still not resolved.

How are assets divided?

It is important to mention that, in the case of contentious cases, an Italian divorce settlement will never get to the point of assigning marital assets to either party. Even with joint ownership of assets the divorce settlement will only make a decision on custody of the children and maintenance.

A separate judicial hearing on “who gets what assets” is often necessary under these circumstances. This needs to be filed in civil court only once the formal separation has been granted in family court (a section of the civil courts). The two proceedings are completely separate, from the Italian legal standpoint.

A lot depends on where your marriage took place:

  • If you are a mixed nationality couple and your marriage took place outside of Italy – and you both are in agreement- you can apply for divorce in the country where your marriage took place and choose which law should regulate your divorce: for instance, divorcing in Italy following the Texan Law in order to get divorced without a separation period. Or divorcing in France following the Italian Law.
  • If your marriage took place in Italy, you will have decided whether to opt for Joint or Separate Ownership of Assets. Separazione dei beni is somewhat similar to a lifetime prenuptial agreement. Under this option, all assets that each partner acquired independently prior to and during the marriage will remain in that person’s name solely. Conversely, Joint Ownership of Assets (Comunione dei beni) covers most assets acquired in both names of the spouses after and during the marriage. The idea of marriage as a partnership, as generally perceived in Anglo-American culture, is however, almost unrecognized by the Italian Legal System.
  • For EU internationals residing in Italy that married abroad, unless specific arrangements were made (e.g. prenups), these marriages fall automatically under the Joint Asset Ownership system in Italy. This is the same for most western non-EU internationals residing in Italy that have also officially registered their marriage in Italy.

Children and their place of birth

  • Children may not be removed from their habitual residence without the parents’ consent. Regardless of where children have been born, if they have lived in Italy for an appreciable period of time and they are taken out of the country without a partner’s consent, it is highly likely that they will be forced to return to Italy under the Hague convention and EU regulations. There are very few exceptions provided by the international law to this rule.
  • If it is not possible to get a partner’s consent to leave the country with the children, it is necessary to apply for a special permit from the family courts. Only once the permit has been granted is it possible to leave Italy with the children.

Financial Legal Aid

Free legal aid (Patrocinio dello Stato) is available when net yearly income is lower than €11.493,82 (add €1.032,00 per every child and/or dependent cohabiting).

Useful Resources:

Hooked to a Country (part II): International Relocation Orders and the Italian Courts – Marco Calabrese
Family Law in Italy: a new guide for expats – Marco Calabrese
Hague Convention Case Studies – Globalarrk
Survival Tips for Stuck Parents – Globalarrk
The Power of Finding Solutions Together – Divorce Dialogue Podcasts – Miller Law Group
Divorce and Mediation Videos – Miller Law Group
Joint Custody with a Jerk – Julie A. Ross, Ross Corcoran, Judy Corcoran
Crazy Time: Surviving Divorce and Building a New Life – Abigail Trafford
International Parental Child Abduction – US Department of State
Divorce and legal separation – European Union
Support Guide to Women’s rights and Resources in Milan – Comune di Milano

About the author:

Emma Cuthbertson, based in northern Italy with her family, is a Salesforce Marketing Cloud Consultant who also blogs regularly for MumAbroad. This is an edited version of an article originally published on MumAbroad.


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