ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
Agreement signed before the mayor As ruled by Decree Law No 132/2014 converted into Law No 162/2014, this procedure offers the possibility for the parties to divorce by reaching a mutual agreement, without lodging a petition with the court. The assistance of a lawyer is not mandatory. The procedure only applies if there are no chil - dren, and it cannot include any clause con - cerning the transfer of any assets between the spouses. The mayor’s check is merely formal. Once the agreement is authorised and registered with the Italian public records, it has the same effects as a court order. Other Processes There are other processes for ending a marriage in Italy. By way of example, according to the Ital - ian Civil Code, spouses can obtain the annul - ment or nullity of a civil marriage, which is an ordinary civil procedure, if: • the conditions provided by Italian law for matrimonial capacity are not met (ie, being unmarried, being adults, not being relatives, not having been charged with the murder of the other spouse’s previous husband/wife); • there was a vice of consent; • the parties did not have legal capacity; or • the marriage was simulated. If the marriage was celebrated according to the Catholic rite, the nullity of the marriage can also be ruled by the ecclesiastic courts. The decision of the ecclesiastic court must be recognised in Italy by proceedings for the “exequatur” of the decision, which take place in front of the court of appeal of the place where the marriage was celebrated.
When a judicial document has to be transmitted abroad and an EU member state is involved, EU Regulation 1784/2020 applies; when a judicial document has to be transmitted abroad and a non-member state is involved, the Hague Ser - vice Convention of 1965 applies. When the Hague Service Convention does not apply and there are no bilateral agreements, the Italian Civil Procedure Code states that service is made by registered mail addressed to the recipient, and a copy of the document is also delivered to the Ministry of Foreign Affairs (Article 142 of the Ital - ian Civil Procedure Code). ADR Collaborative practice (convenzione di negoziazione assistita) As provided for in Decree Law No 132/2014 converted into Law No 162/2014, this proce - dure offers spouses the possibility of divorcing by reaching a mutual agreement, without lodging a petition with the court but with the (mandatory) assistance of (at least) one lawyer for each of the spouses. The procedure applies whether or not children are present. Extensive collaboration by the parties, disclo - sure of their assets, and (almost) absence of conflict are necessary. The agreement reached by the parties with the assistance of the lawyer is subject to scrutiny by the public prosecutor. An agreement will be authorised if it is in the best interest of the chil - dren. If there are no children, the public prosecu - tor’s check is purely formal. Once the agreement is authorised and lodged with the Italian public records, it has the same effects as a court order.
185 CHAMBERS.COM
Powered by FlippingBook