How is separation between bride and groom (Italian law)

As long as separation does not separate you!

This could be the slogan that distinguishes the marriage.

Yes, because contrary to the known "until death you separate", the most probable and recurring causes of the end of a marriage are not to be found in the death of one of the bride and groom but in the will of one or both.

In the Italian legal system the termination of marriage (divorce) is inevitably preceded by a phase, we call intermediate, called separation.

After which, now 6 months (initially 3 years), each of the bride and groom s or both by mutual agreement, can request a divorce, which involves the actual termination of marriage.

But what is separation?

From the act of marriage derive from the individual spouses precise obligations, provided for by art. 143 italian cod.civ.

In particular, the obligation to:

- loyalty

- moral and material assistance

- collaboration in the interest of the family

- cohabitation.

Separation leads to the elimination of these obligations.

Concretely each of the bride and groom  can then choose another domicile, undertake a new relationship, not cooperate in every respect with the spouse (except the hypothesis in which there are children), etc.

Originally the separation solutions foreseen by the legal system were concentrated in two types:

- judicial separation (debit or debit)

- consensual separation

Both took place before the competent court on the initiative of one of the bride and groom  (judicial separation) or on the initiative of both (consensual separation).

And both ended with a provision of a judicial nature.

Now, as a result of the decree-law on the reorganization of civil justice (DL 12 September 2014, No. 132), the administrative reduction of some cases of separation and divorce has been introduced in order to lighten the workload of the courts, hoping in this way to shorten the time necessary for the definition of judicial proceedings.

In certain cases it will be possible, as an alternative to the judge, to contact a lawyer or the officer of the Civil Status to end the marriage bond.

But let's go by order.

As for the judicial separation, this originates, as mentioned, from the initiative of one of the bride and groom  who, through a lawyer (obligatory), appeals to the court asking for the separation.

The causes of separation can be the most varied.

Even a simple intolerance of coexistence can be a valid reason for separation.

But there are also causes of very different nature that stem from precise, let's say, alleged defaults of the other spouse to the duties arising from the aforementioned art. 143 italian cod.civ.

The most frequent are those arising from infidelity (and in this regard there is a large number of jurisprudence that investigates the various hypotheses) as well as those deriving from the alleged violation of the remaining obligations provided for by the aforesaid art. 143 italian cod.civ.

The end point of this path is the obtaining of a sentence of separation with debit from which it will achieve as primary effect, in case of acceptance of the application by the court seised, the loss for the spouse we say guilty of the right to the maintenance allowance while maintaining however the right to food.

The "food" allowance must in any case be paid regardless of the responsibility regarding the separation, given the different function of "food" compared to that of the "maintenance" allowance

It deserves to be noted that while the maintenance allowance pursues the aim of guaranteeing, to the spouse who benefits from it, the enjoyment and preservation of the same economic conditions existing during the course of the marriage, the maintenance allowance is instead recognized in order to allow the economically weaker spouse the necessary and sufficient means to meet the economic needs related to the satisfaction of their primary needs.

The effects of the ruling of the charge of separation in succession are also important.

The separated bride and groom  with charge loses the inheritance rights inherent in the marital status.

He retains only the right to a life allowance if, at the opening of the succession of the other spouse, he already enjoyed the maintenance of the latter.

This annuity enjoyed by the surviving spouse with debit is clearly of an assistance nature and succession.

Its amount can not exceed the amount of the food allowance received before the death of the feeding spouse.

Further consequences of the debit of the separation are found in terms of social security benefits recognized to the deceased spouse, such as the right to survivors' pensions and other allowances provided for by law.

If the separated bride and groom  "without charge" is certainly entitled to such social security benefits, the separated spouse "with charge" will still retain the right to receive such payments only on the basis of the actual enjoyment, in the life of the other spouse, of the food allowance.

Lastly, the influence of the debit or otherwise under the different profile of the adoption of measures by the judicial authority on the assignment of children must be specified.

Their moral and material interest is in fact completely disconnected from the ascertainment of responsibility for the separation and the consequential declaration of charge.

As for the consensual separation, the path is much easier.

This is based on a separation agreement previously achieved by the bride and groom  and that is confirmed before the President of the Court during the hearing of appearance at the end of the failure of the conciliation attempt.

On this occasion, the agreement will be approved if it respects the rights of each spouse and any offspring.

As for the consensual separation before the civil registrar this is allowed only under certain conditions:

- the couple must not have had children from the union who are still minors, adults who are not self-sufficient, disabled or incapable. Children born from any previous relationships are not considered: so their presence is not impediment to separation in the municipality. Separation or divorce in the municipality is possible if the offspring now work and are independent from an economic point of view;

- the couple must have found an agreement on all aspects of separation, both with regard to the more markedly personal and patrimonial matters. In essence, the separation or divorce in the municipality replace the so-called consensual separation / divorce that was previously done, in a single hearing, before the President of the Court;

- the agreement can not regulate transfers of assets between bride and groom  such as, for example, the assignment of the house, furniture and other furniture in the home, the car, bank accounts, securities, deposits, savings books, etc. In other words, this means that the husband and wife can not establish, in the deed signed in the municipality, the division of goods (for example the bedroom, the television, the car, etc.) They can do it with a separate private writing or using the negotiation assisted lawyers, which is a further means of separating or divorcing.

The agreement may also contain pacts concerning the maintenance allowance and the divorce allowance.

Bride and groom  can go both to the Municipality where they have been married and to the Municipality of residence of one of the bride and groom  or both. In particular, it will be necessary to report to the Registry Office.

The actual procedure is carried out in two meetings:

- at the first meeting the Mayor or the registrar writes the separation agreement that the bride and groom declare to have reached. After completing the agreement, the public official gives the spouses an appointment for a second meeting that can not be earlier than 30 days;

- at the second meeting, bride and groom  are asked to confirm their intention to separate or divorce. The reason for this time frame is to allow them a pause for reflection on the choice in progress.

If bride and groom are present at the second meeting, the separation agreement is valid and has the same effect as the separation sentence approved by the court. If, on the other hand, no one or bride and groom are present at the second meeting, the separation agreement is not valid and will expire even if the bride and groom can then present themselves at any subsequent time to start the whole procedure again.