The new rules governing separation and divorce – the new single rite – concern proceedings initiated from Wednesday 1 March.
The proceedings already pending on February 28, however, will continue to be governed by the previous provisions.
According to Istat data dating back to 2020, the peak of divorces in our country occurred in the years 2015 and 2016. This was following the reform that introduced the so-called “quick divorce”.
Italy was one of the very few countries where there was still the requirement of two separate cases for separation and divorce, significantly lengthening the timescales. From today, everything can be done in one step.
But are we sure that this will shorten the time of justice and make life easier for the people involved in these proceedings?
We'll see... some doubts remain especially because there is a lack of staff in the Tribunals.
First of all let's see what the objectives of the reform initiated by former Minister of Justice Marta Cartabia.
The main one is the speed up of the proceedings.
An extraordinary innovation introduced by Legislative Decree no. 149 of 2022 concerns the possibility of simultaneous filing of the application for judicial separation and the application for divorce which significantly shortens the times.
The other objective of the reform is to arrive by October 2024 to unite the skills in a single Family Court that, in these processes, can protect above all the children.
These will be both district structures, in smaller cities, and district structures. There will no longer be fragmentation between the ordinary Court, the Juvenile Court (this remains in force but with more specific functions) and the Guardianship Judge.
Only adoptions and procedures falling under the jurisdiction of the Immigration sections are excluded from this merger.
In the end, third goal, you want protect minors and victims of violence because this reform provides that, in exceptional cases of danger to minors or serious urgency (to avoid the risk of imminent and irreparable harm during the 90 days to get to the first hearing) the Court can immediately issue (i.e. before the hearing) urgent provisions.
These are measures contained in a decree issued by the President without the prior consent of the other parties, in the interest of vulnerable subjects (abused children or wives) in the event of imminent or irreparable harm, or when the summoning of the parties could jeopardize the implementation of the provisions.
The decree must be confirmed, modified or revoked in a specific hearing set within the following 15 days.
But what is the procedure for separation and divorce?
Let's say right away that the lawyer's defensive activity will have to be carried out with greater care, compared to the past, even before the initial hearing.
It will be necessary to collect in advance all the elements necessary to propose the appeal.
The introductory act, the appeal, signed by the parties personally, must already contain the complete allegation of facts and evidence (documents, receipts, photos, witnesses, etc.). It is necessary to clearly indicate one's position. We keep in mind that the hearing, convened within ninety days of the appeal, can end with the definition of the entire case if the Judge considers that the conditions are there.
The need to attach everything already at the appeal stage was foreseen for a dual motivation: on the one hand to allow the Judge to issue complete provisional measures already at the first hearing because he will have many elements available and on the other to avoid that during the continuation of the process the parties can advance a request to modify them.
And it is precisely in the need to immediately clarify the position that I believe a first problem arises: in a matter as delicate as family relationships it is not always possible and above all useful to go into the smallest details of the conflict, to underline the shortcomings of one and the other, to highlight the parental shortcomings because there is the risk of exacerbating an already tense situation. The door is closed in the face of the possibility of a consensual solution.
Separation, often desired by one of the subjects, represents a personal failure and in the immediate aftermath of the events one does not always have the clarity to think about mutual respect and less conflict for the good of the children.
What I mean is that there is a risk of transforming into a judicial separation a separation that in the initial intentions could and would have been consensual.
Obviously, if this were the case, the times and costs would increase.
Returning to the procedure, we said that with a single appeal it will therefore be possible to ask the same Judge for separation and divorce. There will no longer be a "two-phase" procedure, that is, first the presidential hearing and then the one before the investigating judge, but the President will appoint a rapporteur who will deal with the matter.
Together with the appeal it will be necessary to present a detailed parenting plan certifying the children's daily activities, parental and friends' visits, school and sports activities, holiday plans and so on.
This will help the Judge to have a complete picture of the children's daily commitments and activities, thus facilitating him in taking temporary and urgent measures in their interest, including custody and visitation rights.
Furthermore, the two former partners will be required to demonstrate to the judge their financial status by filing a list of registered movable assets owned by them, company shares, bank and financial statements and tax returns for the last three years.
Within 3 days from the filing of the appeal in the Court, the first hearing is set - by decree - in which the spouses must be present in person. The hearing is set within a short time, i.e. within 90 days.
The defendant must appear in court at least 30 days before the hearing and the plaintiff must serve the defendant with the appeal and decree at least 60 clear days before the hearing.
After the appellant has notified the defendant spouse of the appeal and the decree setting the hearing, the parties will have the opportunity – before the hearing – to file additional documents to clarify their requests and investigative requests. Therefore, before the first hearing the parties will be able to file additional documents and evidence, so as to give the investigating judge a complete picture.
The forfeitures apply only to applications concerning available rights, while new applications and new means of proof can always be introduced for the custody and maintenance of minor children, including new applications for maintenance for non-self-sufficient adult children and also for the spouse if there are changes in the circumstances or following new investigative investigations.
At the first hearing, the Judge verifies the regularity of the adversarial proceedings, hears the parties and carries out the attempt at conciliation. If the parties intend to replace the hearing with the filing of written notes, they must request this in the appeal, declaring that they do not wish to reconcile.
If, however, the parties are present and the conciliation fails, the Judge, by order, adopts the temporary and urgent measures in the interweaving of the parties within the limits of the request, and in the interest of the children, and provides for the investigative requests by preparing the hearing calendar.
If the case is ready for a decision at the first hearing, the Judge shall specify the conclusions, pronounce the temporary provisions and order the oral discussion of the case at the same hearing, or at the request of a party at another hearing.
The hearing for the assumption of the admitted investigative means must take place within the following 90 days.
At the end of the preliminary investigation, the Judge sets the hearing for the referral of the case for decision, assigning the terms of 60 days before the hearing for the filing of written notes and conclusions, 30 days before the hearing for the filing of final briefs and 15 days before the hearing for the filing of replies.
To establish the divorce it is necessary the finality of the partial separation sentence and that the “non-cohabitation” is uninterrupted.
With the “partial sentence”, the Court pronounces – immediately after the first hearing – the separation without having to wait for the conclusion of the trial which will continue for the other issues, such as the request for debit, child custody, maintenance allowance, etc.
Therefore, if at least 6 or 12 months have passed since the separation, depending on whether the separation was pronounced following a consensual or judicial judgment, without the spouses having reconciled, a divorce may be obtained.
As regards the competence, the appeal is lodged before the Court of the place of residence of the children and, if there are no children, the common court of the spouses or, in their absence, the court of the residence or domicile of the defendant.
Sanctions are foreseen.
The parent who accepts the proposed parenting plan but then does not comply with it in the time and manner may be sanctioned by the Judge. If one of the parties does not fully declare their financial situation (does not produce, or produces only partially, the income tax return, bank accounts, list of properties, etc.) in order to pay a lower maintenance contribution, they may be ordered by the Judge to reimburse the other spouse's legal fees and to compensate for any damages suffered.
Regarding the listening of minors
There is an obligation to listen to a minor who has turned 12 or even younger if capable of discernment. He or she can be listened to directly by the Judge or indirectly through a consultant, such as psychologists and neuropsychiatrists, or through social services. From the age of 14, minors can directly request the appointment of a special guardian to protect and represent them.
It is right to think about streamlining procedures and reducing costs but I believe that the reform will be able to achieve the desired objectives only if there is an increase in the number of professional magistrates and administrative staff, otherwise, as often happens, it will fail miserably.
Attorney Maria Furfaro
