When can I be found at fault in a separation in Italy?

In Italian family law, being found “at fault” for a separation – known as addebito – means the court has formally determined that the breakdown of the marriage is attributable to one spouse’s conduct.

It is not an automatic finding. One of the spouses must expressly request it during the judicial separation proceedings, and the judge must find sufficient evidence that one party’s behaviour directly caused the marital crisis.

What does ‘fault’ mean in legal terms?

Under Article 151 of the Italian Civil Code, fault can be assigned when a spouse has seriously violated the duties arising from marriage, such as:

• Fidelity
• Moral and material support
• Cooperation for the family’s wellbeing
• Cohabitation

However, a mere breach of these duties alone is not enough. To establish fault, the court must find a direct link between the wrongful behaviour and the irretrievable breakdown of the relationship.

The causal link: when is guilt truly decisive?

Italian case law consistently holds that fault can only be declared if the spouse’s conduct was the real cause of the marital crisis.

If, on the other hand, the emotional and practical bond between the spouses had already collapsed for other reasons, actions such as adultery or leaving the family home will not in themselves justify a finding of fault.

In short, if the marriage was already over in substance, subsequent behaviour cannot be said to have caused its end.

In these cases, it is for the accused spouse to prove that the crisis predated their conduct - that what they did was a consequence, not the cause, of the breakdown.

For example:

• Infidelity: An extramarital relationship does not automatically result in fault unless it can be shown to have triggered the marital crisis, rather than merely followed it.
• Leaving the marital home: If one spouse moves out due to an already intolerable situation or after expressing the intent to separate (even via a lawyer), it may not be considered fault.

When fundamental rights are violated?

There is one area where Italian courts are uncompromising.

When a spouse’s behaviour infringes the other’s fundamental rights - such as physical integrity, safety, or dignity - the causal link is presumed.

Serious verbal or physical aggression, threats, and all forms of domestic violence automatically render cohabitation intolerable. In such cases, fault is found regardless of any previous crisis between the parties.

A striking example comes from the Tribunal of Tivoli, which declared fault against a husband who had threatened his wife’s life in front of their children - behaviour deemed to have destroyed the very foundation of mutual respect required by marriage.

The consequences of being found guilty

A declaration of fault carries primarily financial and inheritance consequences.

• Loss of maintenance rights: The spouse found responsible for the separation loses entitlement to maintenance, even if they are financially weaker. They may only claim alimenti - a minimal subsistence allowance granted in cases of genuine need.
• Loss of inheritance rights: The guilty spouse also loses any right to inherit from their former partner.

These rules reflect a principle of fairness: a person whose conduct caused the marriage to fail cannot continue to benefit economically from it.

Fault versus damages: two distinct issues

It is important to distinguish between being found “at fault” for the separation and being held liable for civil damages. The two findings address very different interests.

• Fault (addebito) concerns the consequences of separation and requires proof that the wrongful conduct caused the marital breakdown.
• Civil damages (under Article 2043 of the Civil Code) apply when one spouse’s behaviour violates the other’s fundamental rights - such as health, dignity, or moral integrity - and causes unjust harm.

The two can coexist or diverge. A court may reject a claim for fault because the marriage was already failing, but still award damages if the same conduct caused harm to the other spouse’s person or dignity.

This was the case before the Tribunal of Naples North, which ordered a husband to pay compensation for physical and psychological abuse committed during the marriage, in a separate civil proceeding from the separation itself.

In summary

Being found guilty of the separation means the court has established that your behaviour was directly responsible for the breakdown of the marriage. It is a serious finding, with both moral and financial implications - leading to the loss of maintenance and inheritance rights.

However, the Italian system does not treat fault as punishment.

Rather, it serves to uphold fairness and accountability, distinguishing between ordinary human failings and conduct that crosses the line into the violation of another person’s dignity and fundamental rights.