Contested separation and divorce must be filed before the competent Court anytime a married couple cannot find an agreement.
Each party has the right to file for separation (even when the other spouse does not agree) on the grounds of the intolerability of the cohabitation and/or the severe prejudice to the upbringing of the children.
The procedure requires the following steps.
The appointed lawyer will draw up a claim, and deposit it at the competent Court (for the registration to the role of the Court a tax for the amount of € 98,00 has to be paid).
2) Hearing scheduling
The Court schedules a hearing before its President.
From the application to the first hearing usually, spend 3/4 months.
The decree of the Court fixing the first hearing must be served, together with the claim, to the counterparty.
3) First hearing
The President of the Court adopts temporary and urgent measures relating to custody and child support and other personal and economic issues. The parties must strictly comply with the ruling.
Please know that if the defendant does not enter a formal appearance, the judge declares him/her in default, and the separation/divorce procedure can go on regularly.
4) The procedure then goes on like every other ordinary lawsuit
The Court evaluates all the requests of the parties (with the giving of evidence).
6) Final ruling
At the end of the procedure, the Court issues a sentence of judicial separation.
In particular cases, contested separation can be charged based on fault: the assessment, made by the Court, of one spouse's neglection of some of the obligations deriving from marriage, may result in negative consequences regarding the economic aspect of the ruling.
Time for completion depends both on the workload of the Court and the processual activities carried out during the trial (with an average of at least two/three years).
As for divorce, the proceeding is very similar to the one above seen for separation (also regarding costs and times for completion).
Each party has the right to file for divorce on the grounds listed here.
At the first hearing, the Court will rule upon the personal and economic aspects of the matter. During this phase, the Court, if requested by one or both parties, can issue a sentence for the immediate dissolution of marriage.
Both judicial separation and divorce procedures can turn into consensual proceedings in case the spouses succeed in finding an agreement before the scheduled hearing or even in front of the judge.