FAQ

What documents do I need to file a petition for separation or divorce?
The minimum documentation needed to initiate a separation or divorce proceeding – whether joint or contentious – is as follows:

• certificate of residence for both spouses
• family status certificate of both spouses
• full marriage certificate (in the case of separation, a summary excerpt of the marriage certificate is sufficient)
• income tax returns for the last three years for each spouse
• certified copy of the separation order (in the case of divorce)

What happens in separation and/or divorce proceedings?
In joint proceedings, the procedure is very brief. The petition containing the agreed conditions is filed after being signed by both spouses. In a short time the Court schedules the hearing, which both spouses attend to confirm their consent to the terms of the petition. Then the Court rules in accordance with the agree conditions.
In contentious proceedings, the procedure may be very long, although it is possible for the parties to reach an agreement and settle the case at any time. The ordinary sequence of events in contentious proceedings is as follows:

• the petitioner, who may be either of the two spouses, files the petition
• the Court schedules the hearing and sets the legally prescribed deadlines
• the petitioner serves a copy of the petition and of the order scheduling the hearing to the other spouse
• the other spouse, who is the respondent, files his/her own statement of defence
• both spouses attend the court hearing held before the Presiding Judge, who tries to reconcile the spouses. If this attempt fails, the Presiding Judge issues a court order containing temporary and urgent measures, including, in separation proceeding, the authorisation to live separately, and measures relating to custody of the under-age children, if any, their placement, assignment of the family home, visiting rights for the noncustodial parent and maintenance orders
• the investigatory phase begins: the petitioner files a supplemental plead, and the respondent files a statement of reply
• at the hearing in front of the Instructing Judge, each party may request a deadline to present evidence briefs, which the Judge may not deny
• if such a deadline is requested, each party files:
  • a written statement clarifying the claims previously filed, to be submitted within 30 days
  • a second submission within a further 30 days, presenting evidence and documents
  • a third written submission within a further 20 days replying to the counterpart, also submitting contrary evidence
• this is followed by a hearing pursuant to Article 184 of the Italian Code of Civil Procedure (CPC), when the Instructing Judge can admit the evidence, setting the schedule for its acquisition
• on completion of the investigatory phase, the parties define their claims and file the final briefs of the proceedings: the final defensive statement and the following brief of reply
• the Court pronounces its ruling

How long after separation may divorce be requested?
After the amendment of Law 898/70, introduced by Law 55/2015, divorce may be requested:

• one year after the spouses appear before the Presiding Judge in the case of judicial separation
• six months after the spouses appear before the Presiding Judge in the case of consensual separation

If one of the spouses is foreign, may divorce be requested without the need for prior separation?
This depends on the specific situation. It will be possible to file for divorce immediately if the spouses agree to apply the law of the Country:

• of which one of the two is a citizen, or
• where they had their habitual residence, when one of them still lives there

and if that law does not require separation prior to divorce

Is it possible to amend a separation and/or divorce decree?
Yes, changes of this kind are possible under the terms of Article 710 of the CPC and Article 9 of Law 898/70 respectively.
If the separation or divorce decree is to be amended, however, new facts have to have arisen which modify the arrangements put in place at the time when the decree was issued.
The amendment proceedings, which may be contested or uncontested, are held in the Judge’s Chambers.

What documents are necessary to file a petition for the settlement of custody, placement, and support for a child born to unmarried parents?
The minimum documentation needed to file a petition for regulation of the exercise of parental responsibility is as follows:

• residency certificate for both parents and the minor(s)
• family status certificate for both parents and the minor(s)
• summary excerpt of the birth certificate for the minor(s)
• income tax returns of both parents for the last three years

How is the child support payment determined?
Article 337ter of the Civil Code indicates the parameters on the basis of which the child support payment is determined. These parameters are:

• the child’s needs
• the standard of living enjoyed by the child while living with both parents
• the time spent with each parent
• the economic resources of both parents
• the economic value of the domestic and care duties taken on by each parent

Until what age is the child entitled to be maintained by the parent?
Attainment of the age of majority is not sufficient to terminate the parents’ duty to support their children. That duty ceases only when the child becomes economically self-sufficient, and thus when he/she effectively or potentially earns sufficient income to support him or herself.

What has to be done in the case of international abduction of a minor?
If the minor is taken abroad by a parent without the other parent’s consent, we first have to determine whether or not the Hague Convention of 25 October 1980 applies between Italy and the state to which the minor was illegally taken.
If that convention does apply, the repatriation procedure has to be set up immediately through the Central Italian Authority at the Ministry of Justice Department for Juvenile and Community Justice (“Dipartimento per la giustizia minorile e di comunità”), or by applying directly to the Juvenile Court of the state where the minor is held.
If a minor residing in a foreign country is brought to Italy by a parent without the other parent’s consent, we first have to determine whether the Hague Convention of 25 October 1980 applies between the state from which the minor was transferred and Italy.
If this is the case, the proceedings are identical, and the Italian Juvenile Court located in the district where the minor is located has jurisdiction.
If the Hague Convention of 1980 does not apply between Italy and the foreign state, other, less direct, approaches are necessary, such as filing separation/divorce or settlement of parental responsibility proceedings, taking the Hague Convention of 19 October 1996 into account as and when applicable.

In a same-sex couple, does the non-biological parent have the right to adopt his/her partner’s child?
Although Article 1, paragraph 20, of Law 76/2016 explicitly rules out the applicability of Law 184/1983 on the adoption of minors by the parties in a civil partnership, recent case law permits the same-sex partner to adopt his/her partner’s child pursuant to Article 44, sub-paragraph d), of Law 184/83, on the basis of a specific interpretation of that statute.