Divorce and separation in Italy: legislation development

95Marradi, A., 2006, 29 May. “Italy’s referendum on divorce: survey and ecological evidence analyzed” European Journal of Political Research.

"yes")96. Censors felt that the song could be a subliminal message and a form of propaganda to influence the Italian voting public to vote yes in the referendum.

As the divorce law did not become a reality until 1970 in Italy, decades after most of western countries introduced a divorce law, its later development determined its contemporary peculiarities. In 1987 the five-year separation rule was amended by a three-year rule, but Italian procedure of the dissolution of marriage remains extremely complex. The procedure for the dissolution of marriage occurs in two steps – legal separation and divorce. Legal separation in its turn implies two variants –judicial separation and separation by mutual consent97.

The judicial separation can only be granted in case sufficient justified causes for separation exist98. Roberta Ceschini suggests to breakdown the process of the judicial separation into three stages, calling the first one “ phase before the President of the Court ”99. At first the President of the Court initiates a hearing to make sure that the reconciliation is not an option in this particular case. Then he/she issues a decree specifying the right of the spouses to live separately and awards child support, alimony and possession of apartment to one of them. According to Ceschini, this stage lasts from one to three months. Then spouses enter “ the investigating phase ”100 in order to confirm, revoke or modify the previous decree. The investigating judge may modify the decree if he/she finds any relevant new evidence. The evidence is not collected by the judge, but requested by the spouses. At “ the final phase ”101 the spouses face the Panel of three judges of the Court again (including the President of the court, the investigating judge and one more judge). During this stage lawyers of the separating spouses present their oral arguments and the Panel issues a final decision, regarding “custody, alimony and patrimonial arrangements”102. Such award is enforced immediately, although it can be appealed due to possible procedural errors. The judicial separation can be interrupted at any stage if the spouses wish to modify it into a separation by mutual consent.

In case of separation by mutual consent the process is less time-consuming in general and requires fewer steps. The spouses withdraw a document in the presence of a competent judge, declaring their mutual consent to live separately and mutual dispositions regarding their children if there are any. The judge has a right to modify it if in his opinion it affects the children in undesirable way103. As in case of judicial separation, the judge initiates a hearing to make sure that the reconciliation is not an option. If reconciliation fails, the judge authorizes the mutual consent. Getting a valid mutual consent form or a separation decree

96Mendes, R., 2012, 18 May. “Historical Eurovision Song Contest Facts: 1974.” Eurovision Contest official website. 97Piacentini, V., 2014. Italian Civil Code translated into English. GruppoWolters Kluwer, Art. 150 98Codice di procedura civile, Art. 706

99Ceschini, R.,1994. Divorce Proceedings in Italy: Domestic and International Procedures. American Bar Association: Family Law Quarterly.

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• ¹⁰²Codice di procedura civile, Art. 189

• ¹⁰³ Codice di procedura civile, Art. 711

enables the parties to proceed with their divorce three years later.

Next step is the procedure of divorce, which again can be initiated by one spouse (“litigated divorce”104) or by both of them in case of mutual consent. In the first case, a spouse seeking a divorce files a petition for divorce. Again, both parties must confirm their unwillingness to reconcile in order to proceed with the litigation. The judge has a right to modify any Court decisions made during the separation proceedings both during the initial and the following hearings105. At the end of this proceeding a divorce decree is granted, which is similar to a separation decree and can be appealed in a similar way. According to Ceschini, such proceedings usually take from two to four years.

In case of mutual consent, both parties sign a petition for divorce, agreeing on child custody and related arrangements106. The judge then verifies and approves the agreements of the spouses. The judge has a right to issue a litigated divorce if in his opinion the petition signed affects the children in undesirable way.

Law 898/1970 also known as “Fortuna-Baslini Law” regulates a procedure of separation independently of any legal institution. Such procedure requires special conditions, such as a conviction of statutory regulated groups of crime, such as crimes against sexual freedom, attempted homicide of a child or a spouse, physical harm to a pregnant woman and crimes, implying more than 15 years of imprisonment. Other reasons to dissolve a marriage in a simplified procedure are mental illness of a spouse and obtainment of divorce in a foreign country in case one of the spouses is a foreign citizen. Also Italian government recognizes a change of sex of a spouse as a sufficient condition to a simplified divorce procedure.

Every procedure is highly individual. Some spouses fight for years over their children’s custody, while some cannot agree on division of property. Furthermore, the process is quite expensive. Overall, the procedure and time requirements for obtaining an Italian divorce are much more severe than similar requirements in other countries. This causes the extreme popularity of separation de facto, while staying married de jure, though when a spouse decides to remarry, he has to go through the process from the very beginning, including reconciliation hearings and a three year waiting rule. Italian couples have been seeking ways to get a divorce in a faster and cheaper way, which lead to a massive divorce cancellation by the Family Division of the High Court of Italy in 2014.Non-Italian Courts generally have no jurisdiction to consider divorce applications by parties who are both residents abroad, and in case of cross-border divorces English law, for example, obligates a person seeking a divorce in England to prove his/her residency in England. So,180 couples lied in their petitions by faking residency in order to

104Ceschini, R.,1994. Divorce Proceedings in Italy: Domestic and International Procedures. American Bar Association: Family Law Quarterly.

105Calabrese, M. 2010,  30 May. “Law 898/1970” An introduction to family law in Italy.

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106lbid avoid Italian procedure, choosing to dissolve their marriage in the UK107.

Such radical changes outline even more radical changes of mentality of contemporary Italians. Traditional family values are substituted with the value of rights – a right to divorce, a right to abortion, a right to free love. Law, being a “living matter”, reflects such changes, which results in legislation amendments. Delays in such amendments in Italy caused mass annulments of fraudulent dissolutions of marriages, a rise of a number of children born outside marriages and etc. Meanwhile, today, outside of Italy, there are many couples who divorce with the first dispute over everyday problems. It is wise to remember that, regardless of state’s legislation concerning divorces, a drop of common sense could have prevented many divorces and even more marriages.