ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce In order for a divorce to be pronounced, the judge must be satisfied that there has been an irreparable dissolution in the spiritual and mate - rial communion of the spouses. In other words, the judge is required to ascertain the irretrievable breakdown of the marriage, which must have its cause in one of the grounds indicated in Article 3 of Law No 898/1970 (the “Italian Divorce Law”). The list is exhaustive, with the consequence that the divorce cannot be pronounced if none of them is met. The grounds for divorce can be divided into the following two groups: • facts that coincide with the commission of specific crimes: (a) one of the spouses is convicted, with lifelong or long sentences; (b) incest; (c) crimes against sexual freedom; (d) crimes linked to prostitution; (e) murder or attempted murder of the other spouse or children; or (f) abuse or injuries against the other spouse or children; and • facts that are incompatible with the persis - tence of the spiritual and material communion of the spouses: (a) a period of protracted legal separation; (b) the foreign spouse has obtained a di - vorce or a declaration of annulment of the marriage abroad, or has contracted a new marriage abroad; (c) failure to consummate the marriage; or (d) one of the spouses undergoes gender reassignment surgery.
This list is more apparent than real, given that – in daily practice, in almost all cases – the most common ground for divorce is an uninterrupted personal legal separation lasting for six months in the case of mutual separation, or one year in the case of judicial separation. Divorce can be obtained through a judicial pro - cess or through ADR. Judicial Process Recent reform in Italy A relatively recent reform (the so-called Cartabia reform) of civil proceedings in Italy (contained within Law No 206/2021 and Legislative Decree No 149/2022) has had a significant impact on family law matters, with significant changes for legal separation and divorce proceedings start - ed after 28 February 2023. Divorce proceedings when both parties apply for a consent order If the spouses have reached an agreement on all terms and conditions of their divorce (children’s custody, visitation rights, maintenance, house, etc), they can submit a joint petition in court. If the agreement between the spouses is fair and does not conflict with the interest of the children, the court rules on the divorce in accordance with the parties’ agreement. The parties can ask to replace the hearing in their presence with a hear - ing on papers, without having to go to court. Such procedure normally lasts approximately three or four months. In Italy, it is now possible for the spouses to file a joint petition for both legal separation and divorce cumulatively; this means that the joint petition contains the spouses’ agreements for both the legal separation and the divorce (Arti - cles 473-bis.49 and 473-bis.51 of the Italian Civil Procedure Code). Nevertheless, an uninterrupt -
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