ITALY Trends and Developments Contributed by: Romualdo Richichi, Studio Zanetti Vitali
to broker an agreed solution and could immediately grant temporary measures which allowed the parties to manage at least the more urgent issues related to relocation (eg, accepting employment offers, finalising house rentals or purchases, and making arrangements concerning school enrolments or health insurance). Conversely, under the new Cartabia procedure, in order to speed up the proceedings after the active intervention of the judge, almost the entire weight of the process related to the defence of the parties is now allocated to the initial phase of the judgment: this means that, before appearing in court for the first hearing, according to Article 473 bis 17 of the Code of Civil Procedure, the petitioner is required to file three separate written defences (the first petition and two extended briefs by which all requests directed at fact-finding must be submitted to the court), while the defendant will be called to submit two different briefs. Additionally, the deadlines for submitting the last two defences are very tight, requiring that replies be filed within five or ten days from the filing of the preced - ing briefs, notwithstanding the fact that, due to tech - nicalities related to the functioning of the IT system adopted by Italian courts, full days may pass before a defence filed by one of the parties becomes avail - able to the other. Furthermore, whenever proceedings involve children, both parties are required to attach to the first written defences a large quantity of docu - ments, which, at least in theory, should reveal their financial position, even if neither of them has made a financial request. Before the Cartabia reform, whenever talks con - cerning a possible relocation between parents who had already ceased to live together in an “official” way (being legally separated or, if unmarried, hav - ing obtained orders concerning custody) reached an impasse, starting proceedings immediately tended to be a very sensible choice, since there was a reason - able expectation that the intervention of the judge could soon bring about an agreement or a decision without forcing the parties to incur excessive expens - es. Now, however, the “wheels” of the new proceed - ings have become so ponderous that setting them in motion should not be an option until any possible alternative had been ruled out.
According to Article 473 bis 15 of the Code of Civil Procedure, the parties may request an urgent order ( provvedimenti indifferibili ). Although these types of urgent orders should not be issued in the context of already pending proceedings, it would be possible to apply for them if a relocation is so imminent that it would be impossible to wait for the outcome of an ordinary judgment; consequently, applying for an urgent order would not be a viable option whenever a decision is needed concerning a move abroad well in advance of a move. Therefore, a contested relocation can still be han - dled fairly simply only when the parents disagreeing over the move are still living together (ie, not legal - ly separated or divorced), or if they are not but the orders in place will not need to be modified in any way, despite the change of the place of residence of the child (which, while not completely impossible, is very unlikely, in particular when the orders in place are very detailed, when the relocation would impact on the visiting calendar in place (making it unviable) and when the new circumstances impact on the financial arrangements related to the maintenance), because, in this case, the authorisation to relocate could be sought by starting the simplified proceedings set out in Article 473 bis 38 of the Code of Civil Procedure. However, even in this case, some judges require that the full Cartabia procedure be followed anyway, pos - sibly with tighter deadlines – and if, after the filing of the petition, one of the parties applies for a “full” legal separation or custody judgment, the case should be dealt with in the context of the latter proceedings, and only urgent and temporary measures could be taken in the simplified judgment. Furthermore, according to the letter of the law, the parties will be required to provide the court with a full financial disclosure in any proceedings dealing with children and, therefore, also in the frame of the simplified judgment set out in Article 473 bis 38 of the Code of Civil Procedure, even if the precondition of this judgment is the lack of any need of rulings concerning the financial arrangements – a lack that should, per se, make the disclosure com - pletely superfluous.
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