You may already know that in the “Bella vita” country if your marriage breaks down you have no choice but to face a judicial separation before you can apply for a divorce. Until 2015, you had to wait three years before you could proceed to a divorce and, only in 2015, this window was reduced to 6 months (if separation was made by consent) or one year (if separation was made within contested proceedings). But still, you had to go through two different proceedings, meaning paying legal fees (and court fees) twice, wasting months and months in duplicate negotiations and thus increasing the level of acrimony with your ex.
The legge Cartabia in 2022 has finally simplified this process. The new law introduced the possibility to file a single application, asking the court to make a judicial separation order first and then a decree of divorce (once the relevant timeframe has lapsed).
However - since Italians love to overcomplicate matters and get lost in rhetorical issues – some local Tribunals (such as Treviso, Florence) have refused to grant applications from spouses who jointly filed single applications on the basis of the new law. In a nutshell, they stated that the new law could not be applied in case of consensual proceedings but only within contentious proceedings. On the contrary, some other Tribunals (such as Milan) immediately allowed the parties to file joint single applications on the basis of the new law. As a result, Italian separating couples (and their solicitors) have been thrown into chaos for the last twelve months.
Ultimately, the issue was referred to the Corte di Cassazione to decide and clarify when and how the new law should be applied. On 16 October 2023, the Corte di Cassazione gave a final say to this matter and made it clear that, pursuant to the new law, you can always apply simultaneously for separation and divorce.
But what this would mean in practice? There are two main consequences. The first one is that this implicitly recognises the validity of nuptial agreements. Indeed, if you agree with your spouse on the terms of your divorce, before you are legally separated, you are de facto drawing a postnuptial agreement. Clearly, this is a milestone decision for Italian law in the long-controversial battle for the recognition of prenuptial agreements. Further decisions from local Tribunals are now expected to follow over the coming months supporting the validity of prenups.
Secondly, from an international law point of view, the possibility to pursue separation and divorce at the same time brings Italy into the pool of countries (such as France) where separation and divorce are part of the same proceedings. This should also resolve the long-standing debate as to whether separation proceedings in Italy can be ‘converted’ into divorce pursuant to Article 5 of Brussel IIa.
The relevance of this is that, in the past, it was often argued that since separation and divorce proceedings were separate, if one applied for separation, the Italian jurisdiction was not automatically seized for divorce too. Now, if you want to secure the Italian jurisdiction, filing a single application should give you some peace of mind and (hopefully) cast out the risk of jurisdictional proceedings.
Now, we can just sit back and watch out what other interesting decisions are going to follow from the Italian Tribunals.
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