Separation and divorce proceedings in Italy can be:
- by mutual consent or
- by litigation in front of the Court.
Separation and divorce by mutual consent are often the best and fastest option for all the married couples whose relationships are not, or not overly, conflicted.
When the spouses have already reached - or are willing to find - an agreement about conditions upon their personal and economic issues (i.e., custody and maintenance of children, allocation of the marital home, whether maintaining the weaker spouse, how to divide common property) they can choose between different options to officialize their separation agreement:
- the proceeding before the Court;
- negotiation assisted by attorneys.
Both proceedings require the assistance of a lawyer.
The client can sign the POA:
- at the presence of the attorney, who will authenticate his/her signature;
- before a Public Notary, if overseas.
The procedure requires the following steps.
1) Negotiation phase
The appointed lawyers conduct negotiations to help their clients to reach an agreement.
The negotiations are strictly confidential, and lawyers cannot forward to their clients, nor add to the dossier of the case, communications between them.
This phase can last as long as the parties need.
2) Joint claim
The attorneys draw up a joint claim and deposit it at the competent Court (for the registration to the role of the Court a tax for the amount of € 43,00 has to be paid).
After 3/4 weeks the Court schedules a hearing before its President.
At the hearing, which both spouses have to attend in person, assisted by their respective lawyers, the Court rates the adequacy of the conditions agreed.
Please note that if one or both the parties fail to attend the hearing, no decree will be issued.
From the joint claim's deposit to the first hearing usually spend 3/4 months.
The judge has not the power to modify the agreement but, in case he believes that it does not adequately protect the best interest of children, he can ask the parties to make some changes, based on his suggestions. If the new agreement is not reached, the Court does not emit the homologous decree.
5) Separation decree
After the hearing, the Court transmits the dossier to the competent Public Prosecutor and, obtained his authorization, after some days issues a homologous decree of consensual separation.
Consensual separation and divorce can also be obtained through the negotiation assisted by attorneys, a procedure in which the parties who have already reached an agreement or intend to, cooperate to resolve the dispute amicably.
This procedure does not contemplate the presence of a third party and requires the following steps.
1) Invitation to negotiate
One party's attorney sends an invitation to negotiate to the other party.
The letter must be followed by acceptance within 30 days of its receiving: the lack of answer within this time limit, or the refusal, will allow the inviting party to petition the Court and can be considered by the judge a reason for condemnation to pay the damages from the misconduct during the dispute.
2) First agreement
The parties, each one assisted by its lawyer, enter into a first agreement that has to specify:
- the term for the completion of the proceeding that has to range between one and three months;
- the object of the dispute.
3) Negotiation phase
The parties, assisted by their lawyers, will try and reach an agreement about every aspect of the matter.
The negotiations are strictly confidential, and lawyers cannot add to the dossier of the case communications between them.
4) Final agreement
The attorneys will draw up the final draft of the negotiated settlement that must comply with mandatory regulations.
5) Public Prosecutor examination
The final agreement must be submitted for examination to the competent Public Prosecutor who can either grant or deny the certificate of no impediment: in this last case, the parties will have to try and reach a new agreement.
6) Transmission to the Civil Officer
Whenever the certificate of no impediment is granted, the lawyers will be responsible for the transmission of a certified copy to the competent civil officer in which the marriage was recorded or transcribed to conclude the procedure successfully. The conditions stated in the agreement will be legally binding.
Negotiation assisted by attorneys can also be an alternative to judicial proceedings concerning the revision of separation and divorce conditions.
This procedure is generally faster than the ones before the Court.
The proceedings are identical to the separation ones.
As for the proceeding before the Court, a joint claim will be drawn up by the appointed lawyers, and the Court will issue a sentence of divorce complying with the conditions stated in the application.