How to separate in Italy: where to start

How a couple separates depends on two things: whether the spouses agree and whether there are children. Only the spouses can ask for a separation (Article 150 of the Italian Civil Code), and the law provides different routes for those who agree and for those who do not. Before choosing one, the spouses need to know what will have to be decided and which rules already apply in the first days.

The possible routes

A separation can be consensual or judicial. A consensual separation (separazione consensuale), decided by the spouses by agreement, can be obtained in three ways; a judicial separation (separazione giudiziale) is requested when there is no agreement.

In court, the spouses file a joint application (domanda congiunta), that is, a petition signed by both of them. The petition sets out the terms on the children and on the financial relations (Article 473-bis.51 of the Italian Code of Civil Procedure). In court, a consensual separation takes effect only with homologation (omologazione), the review by which the court checks the spouses’ agreement and gives it effect. If the agreements conflict with the children’s interests, the court summons the spouses and indicates the changes to be made; if the solution remains unsuitable, it rejects the application.

With assisted negotiation (negoziazione assistita), the process in which the spouses, each with their own lawyer, seek an agreement outside the court, at least one lawyer per party is required. With the clearance (nullaosta) of the public prosecutor, the go-ahead by which the prosecutor declares that no irregularities have been found, or with the prosecutor’s authorisation, the agreement reached takes the place of the court’s decision (Article 6 of Decree-Law No. 132 of 2014). This route is also open where there are minor children or children who are not financially self-sufficient: in that case the public prosecutor authorises the agreement when it is in their interests.

Before the civil registrar (ufficiale dello stato civile), at the municipality, the assistance of a lawyer is optional. The municipality route is not available if there are minor children, adult children who are incapable or have a serious disability, or children who are not financially self-sufficient, and the agreement cannot contain clauses transferring property (Article 12 of Decree-Law 132/2014). The spouses return to confirm the agreement no earlier than thirty days after their declarations.

Without an agreement, one of the spouses files a petition for a judicial separation. It can be requested when there are facts that make continuing to live together intolerable or that seriously harm the children’s upbringing (Article 151 of the Civil Code). How the proceedings unfold is explained in the article on how judicial separation works.

The matters to settle

The agreement or the judge’s decision settles the children, the family home and maintenance. In a joint application the spouses can also settle their property relations, in whole or in part.

As to the children, the judge first considers whether they can remain in the custody of both parents, that is, shared custody (affidamento condiviso). The judge sets when and how the children spend time with each parent and how much each parent contributes to their maintenance (Article 337-ter of the Civil Code). Unless otherwise agreed, each parent maintains the children in proportion to their own income. The judge takes note of the parents’ agreements if they are not contrary to the children’s interests.

As to the family home, the right to live in it is assigned taking the children’s interests into account first, and the judge takes this into account when settling the financial relations between the parents.

As to the spouse, when pronouncing the separation the judge grants the spouse who bears no attribution of fault (addebito), that is, no declaration that the separation is due to their conduct contrary to the duties of marriage, the right to receive from the other what is needed for their maintenance, if they have no adequate income of their own (Article 156 of the Civil Code). The amount depends on the circumstances and on the income of the spouse who pays.

As to property, unless the spouses have chosen a different regime by agreement, the statutory community of property (comunione legale dei beni) applies: purchases made during the marriage, jointly or separately, belong to both spouses, except those relating to personal assets (Article 177 of the Civil Code). The community is dissolved by the personal separation.

The first days

Even once the decision to separate has been made, the duties of marriage remain: the mutual obligation of fidelity, moral and material assistance, cooperation in the interest of the family and cohabitation. Both spouses contribute to the needs of the family, each in proportion to their own means and their capacity to work (Article 143 of the Civil Code).

Leaving home has a specific consequence. A spouse who leaves the family residence without just cause and refuses to return has their right to moral and material assistance suspended (Article 146 of the Civil Code). Filing an application for separation is just cause for leaving. A parent of minor children who changes residence or domicile must inform the other parent within thirty days; a parent who fails to do so is liable for the damage the other spouse or the children suffer from the difficulty of finding them.

The Criminal Code punishes anyone who, by abandoning the family home, evades the duties of assistance inherent in parental responsibility or in being a spouse.

As to the children, important decisions remain joint. The parents decide by mutual agreement on the child’s habitual residence, that is, the place where the child lives on a stable basis, and on choices about the child’s education and upbringing (Article 316 of the Civil Code). If they disagree on matters of particular importance, such as habitual residence or school, either parent can apply to the judge.

If one spouse’s conduct causes serious harm to the physical or moral integrity or the freedom of the other, the judge, on application by a party, can issue a protection order (ordine di protezione), the civil court order that removes the violent spouse or cohabiting partner from the home (Article 473-bis.69 of the Italian Code of Civil Procedure). The judge can do so even when the spouses no longer live together.

The first consultation

It is possible to speak to a lawyer before saying anything to the other spouse. A lawyer is bound by professional secrecy and the utmost confidentiality about the facts learned, also when giving legal advice and not only in court proceedings (Article 6 of Law No. 247 of 2012), and cannot be compelled to testify about what they learned in the exercise of the profession, save in the cases provided for by law.

When accepting instructions, the lawyer must inform the client of the possibility of using assisted negotiation. In a judicial separation, representation by a lawyer is compulsory (Article 473-bis.14 of the Code of Civil Procedure). The judge, for their part, can at any time inform the parties about family mediation (mediazione familiare), a process with a mediator chosen by the parties to reach an agreement on the children and on the separation, and invite them to contact a mediator.

The financial situation matters from the start. In a petition for a judicial separation, if there are minor children or a financial contribution is claimed, documents on income and assets are attached, including the tax returns for the last three years (Article 473-bis.12 of the Code of Civil Procedure). A joint application also states the income and assets of the last three years. The judge can take into account the conduct of anyone who gives inaccurate or incomplete information about their financial circumstances. If the parents’ financial information is not sufficiently documented, the judge orders the tax police to investigate their income and assets.

The costs of each route are covered in the article on how much a separation costs.

How to proceed

Speaking to a lawyer before taking any step matters above all if there are children or if you are thinking of leaving the home, because these are the cases in which the law attaches specific consequences to the choices made in the first days. In separation and divorce matters, the firm handles consensual and judicial separation, divorce, assisted negotiation and variation of arrangements. The first consultation is for framing the case: you describe the situation, the firm reads the documents and tells you which routes are open and which are not. At the end of the first consultation you receive a written quote and decide afterwards, with the figures in front of you.