Judicial separation in Italy: if your spouse won't agree

A separation can be obtained even when the other spouse does not agree, does not reply or does not cooperate. In that case the separation is a judicial separation (separazione giudiziale), that is one decided by the court when there is no agreement. One of the spouses files a petition with the court and the judge decides. It is not a defeat, but the tool the law provides so that a decision is reached all the same. The costs of a separation are covered in a separate article.

When it can be requested

A judicial separation does not require the other spouse’s consent. It can be requested when there are facts that make continuing to live together intolerable or that seriously harm the children’s upbringing, even regardless of the will of one or both spouses (Article 151 of the Italian Civil Code).

If one of the spouses asks for it and the circumstances are met, the judge who pronounces the separation also declares to which of the two it is attributable (addebito), that is caused by that spouse’s conduct contrary to the duties of marriage.

The petition

The petition is filed through a lawyer, because legal representation is compulsory. The court follows the proceedings concerning persons, minors and families (procedimento in materia di persone, minorenni e famiglie), the single set of rules under which the court handles separations, divorces and cases about children, in force since 2023. The petition sets out the facts and the legal grounds on which the claim is based, with the conclusions and the evidence offered (Article 473-bis.12 of the Italian Code of Civil Procedure).

The petition is filed with the court of the place where the minor children have their habitual residence (residenza abituale), that is the place where they live on a stable basis; if they were moved without authorisation less than one year ago, with the court of their last habitual residence before the move. Without minor children, the competent court is that of the place where the other spouse resides or is domiciled. If the other spouse cannot be traced or lives abroad, it is that of the place where the spouse filing the petition resides or is domiciled (Article 473-bis.47 of the Code of Civil Procedure).

In a separation, the petition and the other spouse’s reply must always be accompanied by the tax returns and the bank and financial statements for the last three years, and by the documents showing ownership of real estate, registered movable assets and company shares (Article 473-bis.48 of the Code of Civil Procedure).

With minor children, the petition must also include the parenting plan (piano genitoriale), the document describing the children’s life: school, activities, relationships, holidays.

When a maintenance payment is claimed, the judge can also order of their own motion, that is without either party asking, that the documents be supplemented, and order investigations into income, assets and the actual standard of living, including with regard to third parties and with the help of the tax police (Article 473-bis.2 of the Code of Civil Procedure). The judge can take into account the conduct of a party who gives inaccurate or incomplete information about their financial situation.

The first hearing

Within three days of the petition being filed, the president sets the first hearing at which the parties appear (udienza di comparizione). No more than ninety days may pass between filing and the hearing (Article 473-bis.14 of the Code of Civil Procedure). The petition must be served on the other spouse at least sixty clear days before the hearing, and the other spouse must enter an appearance, that is file their reply, at least thirty days before it. If the petition has to be served abroad, the maximum period before the hearing rises to one hundred and twenty days and the period for service to ninety. If there are reasons of urgency, the judge can shorten these periods by up to half.

At the hearing the spouses must appear in person, save for serious and proven reasons. The judge hears them, together or separately, in the presence of their lawyers, and attempts conciliation; the judge can also make a reasoned settlement proposal (Article 473-bis.21 of the Code of Civil Procedure). If conciliation fails, the judge issues the temporary and urgent orders (provvedimenti temporanei e urgenti), the rules on the children, the home and maintenance payments that apply until another order replaces them. If instead the spouses are reconciled, that is they reach an agreement, the judge makes the necessary orders and refers the case for decision, that is takes it to judgment.

If the other spouse fails to appear without good reason, the judge can take this into account in assessing their conduct and in awarding costs, and issues the orders all the same.

The judge can also invite the spouses to see a family mediator and, with their consent, postpone the temporary and urgent orders to allow an attempt at family mediation.

Temporary and urgent orders

The judge issues them by order (ordinanza), in the interests of the children and, within the limits of the claims made, of the spouses (Article 473-bis.22 of the Code of Civil Procedure). When the judge requires one of the two to make a financial contribution, the judge sets the date from which it runs and can backdate it as far as the date of the application.

As for the children, the judge first considers whether they can remain in the custody of both parents, that is shared custody; otherwise the judge decides which of the two has custody. The judge sets the time and the way in which the children stay with each parent and the amount and manner of each parent’s contribution to their maintenance (Article 337-ter of the Civil Code). If the parents have reached agreements, the judge takes note of them, as long as they are not contrary to the children’s interests.

The order is enforceable (titolo esecutivo), meaning it allows what is due to be obtained through enforcement proceedings, without a new case. It remains in effect even if the proceedings are extinguished, until it is replaced by another order. If new facts arise or new findings are made, the judge can vary or revoke the orders.

The temporary and urgent orders can be challenged by a complaint (reclamo), that is by asking the Court of Appeal to review them, within ten days of their pronouncement at the hearing or of their communication, or of service if earlier (Article 473-bis.24 of the Code of Civil Procedure). The time limit is mandatory, that is it cannot be exceeded. The Court of Appeal decides within sixty days of the complaint being filed.

Before the hearing, if there is imminent and irreparable harm, the president or the judge delegated by the president can adopt by decree the orders needed in the interests of the children and, within the limits of the claims, of the spouses. In the same decree the president sets a hearing within the following fifteen days to confirm, vary or revoke them (Article 473-bis.15 of the Code of Civil Procedure).

The judgment

In the order containing the temporary and urgent orders, the judge also sets the timetable of the proceedings and, within the following ninety days, the hearing for the evidence.

Among the evidence, the judge can order a court-appointed expert report (consulenza tecnica d’ufficio), that is an assessment entrusted to an expert, for example a psychologist. In a psychological assessment, enquiries into the parties’ personality are allowed only for the aspects that directly affect their parenting abilities (Article 473-bis.25 of the Code of Civil Procedure).

Once the evidence has been taken, the judge sets the hearing at which the case is referred for decision and gives the parties time limits for their final written submissions. The judgment is filed within the following sixty days (Article 473-bis.28 of the Code of Civil Procedure). The separation itself, however, can be pronounced before the other decisions. When the separation claim is already ready for decision and the proceedings have to continue for the other claims, the judge retains it for decision; the judgment deciding it can only be challenged by an immediate appeal.

When pronouncing the separation, the judge grants the spouse to whom the separation is not attributable, if they do not have adequate income of their own, the right to receive from the other what is necessary for their maintenance, that is spousal maintenance (assegno di mantenimento). The amount depends on the circumstances and on the income of the paying spouse (Article 156 of the Civil Code). As for the family home, the right to live in it is assigned taking the children’s interests into account first.

After a judicial separation, divorce can be requested once the separation judgment has become final (passata in giudicato), that is it can no longer be challenged, and the separation has lasted without interruption at least twelve months from the hearing at which the spouses appeared, or six if in the meantime the separation has become consensual (Article 3 of Law 898/1970). How long a divorce takes is covered in a separate article.

How to proceed

The petition is filed by a lawyer, and the spouse who receives it must enter an appearance at least thirty days before the hearing. With minor children it is worth talking to a lawyer before taking any step, because the petition must include the parenting plan and it has to be assessed whether there are grounds to ask for orders before the hearing. In separation and divorce matters, the firm handles consensual separation (separazione consensuale), judicial separation, divorce and variation of arrangements. The first consultation is used to frame 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.