VICES OF THE WILL:
A) VIOLENCE AND FEAR : Violence is characterized by threats emanating from one person
and directed at another in order to induce him or her to enter into marriage. Fear, on the
other hand, can arise either from a natural fact or from human behavior (e.g., a calamity or
dangers in one's own country due to the existing political regime) that is not aimed at
inducing the person to contract marriage, but from which he or she intends to escape by
acquiring the conjugal state.
Violence: Since family law legislation does not provide a definition of marital violence, the
rules of Art. 1434 ff Civil Code on contracts apply. Thus the threats must be of such a nature
that a sensible person would fear exposing himself, relatives, property, to unjust and
considerable harm, bearing in mind the age, sex and condition of the victim. Moreover, these
threats must have been determinative of the
consent to the marriage. They have relevance whether they come from the other spouse or
from a third party.
Because of violence, a marriage can be challenged, as the law protects freedom in marriage
choice.
Fear: fear is a cause of invalidity of marriage when it
- it is of exceptional gravity: A fear has the character of exceptional gravity when it is referred
to the dangerous situation and the harm that could result and if the occurrence of the harm
appears extremely probable. Exceptional gravity must then also relate to the threatened
harm, relating to the fundamental rights of the person and not relating to property
- arises from causes external to the spouse (122 cod civ).In addition, the fear must arise from
causes external to the spouse; therefore, it is a cause of invalidity if it arises from the
pressures of the person who arouses the fear in the other, even if the true and proper
characteristics of the threat do not occur.
Violence is fear both involve the annulment of the marriage. Legitimate to appeal is only the
spouse whose will has been vitiated. The action is time-barred in ten years, but the defect is
cured by the cohabitation of the spouses for more than one year after its termination.
B) ERROR: Error is a cause of invalidity of marriage if it falls on the identity of the person or
certain qualities of the person.
The error on quality is relevant if it is essential, that is, if it is determinative of consent and
related to qualities
peremptorily specified by law. It is determinative when the spouse would not have entered
into marriage if he or she had known exactly what was true.
The qualities concerning one spouse and ignored by the other, indicated by law are:
Existence of a physical or mental illness or
an abnormality or sexual deviation such as to prevent the performance of married life.
Existence of a conviction for a non
culpable crime to imprisonment of not less than five years. The spouse's ignorance in this
case is relevant to the social reprobation arising from having been responsible for serious or
infamous crimes.
Declaration of habitual or professional delinquency
Conviction for crimes concerning prostitution to a sentence
not less than two years
State of pregnancy caused by a person other than the
person who has fallen into error. The system wants to protect in this way the man who has
contracted marriage because of the woman's state of pregnancy, holding himself responsible
for it, but it is also intended to protect the man who has ignored the pregnancy altogether,
resulting from relations the woman had with another man in the period immediately
preceding the marriage. In this case the husband must act to disown the child if the
pregnancy was carried to term.
The error that falls on qualities other than those mentioned is irrelevant. A marriage vitiated
by error is voidable at the initiative of the bona fide spouse: he must
prove in court the existence of the invalidating cause and the fact of having ignored it before
the celebration,
while the defendant must prove that the plaintiff knew of its existence at the time of the
marriage.
The defect is cured if spouses continue to cohabit for more than one year from the time of its
discovery, while in the case of failure to cohabit, the ten-year statute of limitations applies
from the time of discovery.
C) IRRELEVANCE OF WILL: Article 122 of the Civil Code does not include wilful misconduct
among the defects of the will that render the marriage invalid.
Therefore, malice is can only cause the invalidity of the marriage insofar as the deceived
spouse has been misled about those qualities that are relevant in the case of error or about
the identity of the person.
The deception may come from the other spouse, from the third party, from both resulting in
liability for causing the invalidity of the marriage.
5.5: SIMULATION
According to Article 123 of the Civil Code, marriage simulation occurs when the spouses
have agreed, before the celebration, not to fulfill obligations and not to exercise rights
descended from the bond.
Simulation results in the annulment of the marriage itself. This is a novelty introduced by the
'75 reform to regulate those marriages that were mutually agreed upon by the spouses to
create an apparent bond to be enforced against third parties, but in reality unintended by the
spouses. The
former discipline did not allow these marriages to be invalidated since the celebration was
nevertheless intended.
The figure of sham marriage is also known in the present day, when the parties want to
create an appearance of the bond in order to socially regularize their relationship, child
status, or to obtain advantages that derive from marital status.
Characteristic element of simulated marriage is the agreement of the spouses to exclude the
establishment of the marital relationship, that is, from the communion of life based on the
duties prescribed by law (absolute simulation). The vice in this case is the lack of intention on
the production of the typical effects of marriage.
If the spouses have excluded the observance of one or some matrimonial duties, there is the
figure of partial simulation. This falls under the discipline of Article 160, which prohibits
derogation from the rights and duties arising from marriage, resulting in the nullity of the
agreement.
Valid for is also marriage in the case of mental reservation, which occurs when the will to
form an apparent bond can be found in only one spouse.
The difference of the simulated marriage with that celebrated as a joke is that in the former
the celebration intended by the spouses to create a semblance of a bond and is voidable,
while in that celebrated as a joke this intention is not there and is void.
Absolute simulation causes the marriage to be voidable.
Legitimate to the action is each spouse within one year of the celebration, but the defect is
curable by the cohabitation
marriage put in place by the spouses after the celebration, even if of short duration.
There are no limits of proof, so spouses can also resort to testimonial evidence.
5.6.THE JUDGMENT OF APPEAL
The court of the place where the defendant has his or her residence, domicile or abode has
jurisdiction to decide in the judgment of appeal.
If the plaintiffs are third parties, defendants are both spouses, as interested in the stability of
the bond; however, if the judgments are taken by one spouse, the other spouse is the
defendant.
The intervention of the prosecutor is always required under penalty of nullity.
In the course of the judgment, the court may authorize the spouses to live separately,
assessing whether there is a situation so serious as to make the continuation of cohabitation
intolerable. The filing of an application for annulment constitutes just cause for removal from
the family home.
An Italian judge is invested with the judgment on the invalidity of the marriage in the following
cases:
One of the spouses is an Italian citizen or resides in Italy The marriage was:
celebrated in Italy
The defendant at home or a representative legitimated
To stand trial in our country
The judgment concerns situations or relationships to which is
applicable our law
The spouses have conventionally accepted the law
Italian law. If a judgment is pending before the foreign court and there is a likelihood that it
may conclude with a measure having effect in Italy, the Italian court must suspend the
judgment, which has begun subsequently before it, and wait for the foreign proceedings to be
settled. This does not happen when the foreign court declines jurisdiction, or the foreign
measure has no effect in the Italian system.
The annulment of a marriage obtained abroad is effective in Italy if certain conditions are
met:
▪ The foreign court had jurisdiction under Italian law
▪ The provisions of the foreign law regarding the summoning of the defendant, the
appearance of the parties or the declaration of default were respected.
▪ The rights of the defense were respected.
▪ The foreign judgment is res judicata
▪ The foreign judgment does not conflict with a final judgment issued by an Italian court or
there are no pending proceedings in Italy, which began before the foreign judgment and have
the same subject matter.
▪ The foreign judgment does not conflict with the principles of public policy.
When the foreign judgment of annulment cannot take effect in Italy, a petition for divorce is
still allowed.
5.7RELEVANCE OF ECCLESIASTICAL JUDGMENTS OF ANNULMENT OR
DISSOLUTION OF THE CONCORDAT MARRIAGE.
The regulations of the Concordat of 1929 stipulated that the cases of nullity of marriage and
dispensation regarding the rato and unconsummated marriage were reserved exclusively to
the jurisdiction of the ecclesiastical courts. The orders, which were made enforceable by
decree of the Supreme Tribunal Della Segnatura Apostolica, were transmitted to the Corte
D'appello which, by order, made them enforceable in the state system.
Initially, therefore, the Court Of Appeals was to automatically execute ecclesiastical
judgments without operating any control. However, the Constitutional Court declared the
constitutional illegitimacy due to violation of the principle of state sovereignty and ruled
against the possibility of making pontifical dispensation orders, relating to rato and
unconsummated marriage, enforceable in the civil order, which went to affect the already
acquired marital status.
This position stems from the fundamental principle that only the civil court's order can
extinguish a marital relationship that has validly arisen. The Court, however, recognized the
exclusive jurisdiction in favor of the ecclesiastical courts regarding the causes of invalidity of
concordat marriages, as a consequence of the recognized civil relevance of canonical
marriage.
This derogation from the jurisdiction of state courts appears justified because it is in keeping
with the principle of guaranteeing the citizen, even in the diversity of discipline, judicial
protection in matters of matrimonial invalidity.
The '84 agreement to revise the Concordat changed the matter concerning judgments of
nullity of concordat marriages.
First of all, judgments of ecclesiastical courts can take effect in civil matters if the following
conditions are met:
▪ The ecclesiastical court must have jurisdiction to decide the dispute
▪ Its decision must have the decree of enforceability of the supreme tribunal of the apostolic
signature
▪ The right of the parties to act and resist in court must be respected
▪ The grounds for invalidity must not conflict with the principles of public policy. On the other
hand, it is believed that pontifical orders of dispensation from rato and unconsummated
marriage cannot be made enforceable.
Referring to the three prerequisites, for ecclesiastical judgments of marriage annulment to be
enforceable in Italy there is a need for:
- The Tribunal Della Segnatura Apostolica checks the competence of the ecclesiastical judge
and the regularity of the proceedings. The decree of enforceability certifies that the judicial
process has been concluded.
- The right to act and resist in court is guaranteed to the parties by the application of the
following rules: there must be regularity of the writ of summons in the protection of the
essential rights of the defense; in addition, there must be regularity of the constitution in court
or of the
declaration of default in the protection of defense rights throughout the trial.
- Jurisprudence questions whether the mechanism provided by the '84 agreement to make
ecclesiastical judgments of marriage annulment effective (deliberation) has been modified by
the entry into force of Law No. 218 / 1995, which recognizes automatic effectiveness of
foreign judgments if there are certain prerequisites, without resorting to deliberation process.
Jurisprudence is leaning in the negative direction since Article 2 of the same law states that
the provisions contained therein do not affect the application of international conventions in
force for Italy, such as the '84 agreement must be considered.
Among the conditions stipulated for making marriage annulment decisions issued by
ecclesiastical courts enforceable in Italy is that they must conform to public policy principles.
Delibability (a judicial procedure that serves to have a measure issued by the judicial
authority in a given country recognized in another country) of the judgment is allowed in the
case of ecclesiastical judgments of annulment due to incapacity, defect of consent, and
simulation, pronounced in the presence of a protracted cohabitation in the period after the
marriage or the termination of the defect. In addition, the Supreme Court has considered as
contrary to public policy or judgments of nullity of marriage due to mental reservation not
known or cognizable to the other spouse, but also any ecclesiastical decisions of marriage
nullity for religious reasons.
Jurisdiction: the attribution to the civil court of significant powers of intervention in matters of
matrimonial invalidity implies a downsizing of the exclusive jurisdiction attributed to the
ecclesiastical court by the Concordat of 29.
However, the '84 agreement introduced a kind of "concurrent jurisdiction" in favor of the civil
courts. From this perspective, the court could review the validity of the concordat marriage on
the basis of state norms. An action for annulment, brought by one spouse before the civil
court would prevent the ecclesiastical judgment from being made enforceable as a result of
the action subsequently initiated by the other spouse. The ecclesiastical court, from this
perspective, may rule on the invalidity of the marriage only at the concordant request of the
spouses or at the request of a groom, provided the ecclesiastical judgment was initiated
before the civil one.
Judgment of Deliberation: the Court of Appeals, in reviewing the reasons for the
ecclesiastical decision, may not go back on the findings made by the ecclesiastical judge,
while it may make independent evaluations of circumstances that are not relevant to the
canonical system and therefore not subject to investigation.
The '84 agreement introduced another important innovation: the deliberation of ecclesiastical
judgments is no longer done ex officio, but only at the request of the spouses, on pain of
nullity of the proceedings.
Pending the ecclesiastical judgment of annulment, a party may apply to the civil court for
emergency measures.
In the judgment of deliberation, The Court Of Appeals may place the payment of an
allowance in favor of one spouse on the other, pending the final decision.
The decision of the Court of Appeals is appealable to the Supreme Court.
5.8.EFFECTS OF THE INVALIDITY OF THE MARRIAGE.
The judgment pronouncing the annulment or ascertaining the nullity of the marriage
terminates the bond and its effects, in some cases retroactively, that is, from the time of the
celebration, and in others from when the judgment has become final.
Generally, the retroactive extinction of effects results from the bad faith of the spouses, that
is, from the knowledge they had at the time of the celebration of the existence of a cause of
invalidity of the marriage.
Effects concerning children: offspring born of the annulled or declared void marriage remain
legitimate, even if there is bad faith on the part of the parents. Thus, in this case, the
pronouncement has no retroactive effect, unless the invalidity of the marriage was due to
lack of freedom of state (adulterous children) or non-dispensable kinship or affinity ties
(incestuous children) the children have the status of recognized natural, provided the
recognition was permitted by law.
On the other hand, if the parents were bona fide, children born of the invalid marriage or
those born earlier (provided they were recognized prior to the pronouncement of invalidity)
retain the status of legitimate.
After the annulment, the custody of the offspring must be carried out: in this case, the criteria
provided for separation and divorce apply, and the same rules apply to the exercise of
parental authority.
Effects concerning spouses: bona fide spouses retain the rights acquired by marriage until
the final pronouncement of annulment or the declaration of
nullity. Spouses in bad faith, on the other hand, lose these rights retroactively from the time
of the celebration.
In favor of the bona fide spouse, a compensatory indemnity is due for the damages incurred
by him or her after contracting the invalid marriage. These indemnities must be paid by the
other spouse or the third party to whom the invalidity itself is attributable. Compensation is
also due in cases where one of the spouses has contracted marriage with a will vitiated by
violence or fear. (Imputable means that the spouse or a third party has engaged in
commissive or omissive conduct, contrary to the general duty of fairness, that contributed to
the marriage). Compensation is due, regardless of proof of the existence of the damage and
the economic condition of the injured party. The minimum amount is equal to the spouse's
maintenance for three years, but the court may award higher compensation in part.
The liable spouse is also obligated to provide alimony to the other, if the other subsequently
comes into need and there is no other obligor able to match it (as the liable spouse ranks last
in the ranking of obligors).
Maintenance allowance: if both spouses were in good standing, the law provides the
possibility that the court may order, against one spouse and in favor of the other, a
maintenance allowance for the duration of up to three years after the annulment.
Prerequisites of the allowance are:
▪ The lack of adequate income and substance to provide one of the spouses with a standard
of living equal to that enjoyed during the marriage;
▪ The economic possibility of the other spouse to pay the check itself.
This is an exceptional case in which the effects of the marriage continue to occur despite the
annulment and is justified by the desire to avoid an abrupt change in the standard of living of
the non-affluent spouse. The right to the allowance is extinguished if the stated conditions
cease to exist and, in any case, with the transition to remarriage of the spouse who should
receive the allowance.
6. THE SEPARATION OF SPOUSES.THE FACTS OF THE CASE
Personal separation constitutes a remedy reserved for spouses by the legal system, in the
event that the relationship had entered a crisis.
The period of separation can be a time of pause, to facilitate the overcoming of
disagreements that have emerged and conclude with the resumption of cohabitation, but it
can also represent the final solution to the crisis, resulting in divorce.
There are two forms of separation: judicial and consensual. Then there is the so-called
temporary separation, which is generally not a final solution to the marital crisis.
In all these cases, separation is said to be legal, because it is sanctioned by the legal system
following the intervention of the court.
Legal separation causes the cessation of community of life between the spouses and affects
marital duties, extinguishing some and modifying others.
Different from legal separation is de facto separation, which occurs when the spouses decide
to separate without recourse to the court. It presupposes the willingness of the spouses to
permanently end cohabitation, that is, marital communion of life, even in the absence of a
judicial pronouncement.
6.2 JUDICIAL SEPARATION
Judicial separation results from a court ruling and presupposes the disagreement of the
spouses on the very decision to separate.
This figure of separation has undergone profound changes since the reform, as under the
previous discipline it could be pronounced only " on the grounds of fault," that is, it was a
sanction against the spouse responsible for the crisis.
With the reform, for the pronouncement of separation, it is necessary that facts have
occurred that make it intolerable for the spouses to continue living together or seriously harm
the upbringing of the offspring. With the reform, therefore, the assignment of responsibility for
marital failure to one of the spouses is only contingent and is not a necessary prerequisite for
the separation judgment.
Regarding the concept of "intolerability of cohabitation," the prevailing interpretation holds
that it presupposes the existence of circumstances which, by their particular gravity, make
the living togetherness between the spouses objectively burdensome. Usually, the
intolerability of cohabitation depends on a series of acts or facts protracted
in the course of married life that assume significance precisely as a whole. Causes of
intolerability of cohabitation could be infertility or a serious nervous illness of one spouse or
the spouse's normal state of drunkenness, the continuous state of tension existing in the
couple, mutual misunderstandings or the long duration of de facto separation.
Intolerability of cohabitation, therefore, also exists when in the life of the couple it has not
been possible to implement a value considered essential even by only one of the spouses.
Separation, however, can also be sought for behavior by one spouse that is seriously
detrimental to the offspring, regardless of whether it has made cohabitation with the other
spouse intolerable.
If a spouse wants separation for reasons that are futile or dependent on his or her own
conduct that is detrimental to marital duties, no one can force cohabitation on him or her, but
if he or she moves away from the marital home, he or she will expose himself or herself to
the consequences of unjustified removal and the other spouse's claims of the separation
charge against him or her.
The debit of separation: may be pronounced by the court, when the intolerability of
cohabitation or the injury to the offspring arise from conscious and voluntary conduct of the
other in violation of marital duties. In assessing the behavior of one spouse, the conduct of
the other spouse must also be taken into account, but it is not necessary that the spouse
responsible for the crisis acted with the intention of provoking it.
Separation can be charged to both spouses in the case of mutual violations of marital duties,
except for those that take the form of an immediate and proportionate reaction to the wrong
received.
Separation for intolerability of cohabitation may change to separation with charge if the
chargeable facts are subsequent to or known after the separation itself. This solution is
grounded in the fact that the spouse by his or her behavior has violated the marital duties
between separated spouses and consequently aggravated the ongoing rift, making it more
difficult to resume cohabitation. However, the charge is also justified in cases where a
spouse has aggravated an already ongoing crisis, resulting in a change in the effects of the
separation.
Furthermore, the Supreme Court has ruled that the causal link between intolerability of
cohabitation and violation of marital duties must be established in order to pronounce the
debit: in fact, if intolerability already existed at the time of the violation, the debit cannot be
pronounced. This means that marital duties cease to exist not at the time of separation, but
from the time when cohabitation has become intolerable, even if it is still in place.
The declaration of debit entails a more intense loosening of the marital bond and the loss or
reduction, to the detriment of the responsible spouse, of certain rights of a financial nature,
such as maintenance or inheritance rights.
The judgment: the proceedings are instituted on the appeal of the spouse to whom
cohabitation has become intolerable.
The competent court is the court of the place of residence or domicile of the defendant at the
time the application is filed.
The proceedings take place in Camera Di Consiglio and the intervention of the prosecutor is
mandatory.
The first phase of the trial is held before the presiding judge who must hear spouses and
must attempt to reconcile them. If he fails to do so, he may arrange for urgent measures in
the interest of the spouses themselves and their offspring. Thereafter, the proceedings
continue before the examining magistrate and conclude with a judgment of the panel, in
which the measures concerning the offspring and those concerning the spouses must be
contained.
The judge, however, can make his own the agreement reached between the spouses
regarding certain effects of the separation, in an attempt to dampen the level of conflict
between the spouses and with certain advantages for the family. A relevant role in this
regard can play the so-called family mediation, there is the intervention of a third party who is
able to facilitate dialogue between the spouses.
When the proceedings must continue in order to allow for further investigation of the personal
or property relations between the spouses, the judge may issue a judgment of separation.
If in the course of the judgment one of the spouses dies, the proceedings may continue at
the initiative of the heirs to enforce property rights that have already accrued.
Also permitted is the modification of a previous request for a debit in separation for
intolerability of cohabitation, just as it is permitted to request the modification at
any time of orders concerning spouses and children, if the conditions on which they were
based have changed.
6.3.CONSENSUAL SEPARATION
It presupposes the agreement of the spouses on the decision to separate and on the
regulation of mutual relations and those with the children. The agreement, therefore, should
regulate the typical effects of separation, contemplating the determination of maintenance
allowance, custody and maintenance of children, and the allocation of the right to inhabit the
family home.
If the spouses do not reach a complete agreement on the separation settlement or it is
deficient, intervention of the court aimed at completing it is permissible only if this task is
given to it by both spouses.
The agreement in question is a bilateral store of a family nature, but it will be productive of
effect only if it is accompanied by the court's decree of approval. It requires capacity to act
and does not admit representation.
The proceedings begin upon appeal by both spouses or only one (the other, however, must
be consenting). The first part of the trial is held before the presiding judge, who must hear the
spouses, first separately and then jointly, and attempt conciliation.
If the attempt fails, the president orders temporary and urgent measures in the interest of the
spouses and the offspring, then remands the case to the panel. The prevailing case law
admits a possible withdrawal of consent, by either spouse, intervened in
the latter stage, as it argues that until approval takes place, the agreement is not binding due
to lack of an element of the case.
The college may refuse homologation when the negotiated content prejudices the interests of
the children and when it contains acts of disposition relating to non-disposable rights. The
parties, in order to obtain probate, must in this case make the changes indicated by the
college.
The decree of homologation is appealable.
Subsequent modifications of the conditions of the consensual separation are always
possible, either through a new agreement or by court intervention at the request of one of the
spouses.
6.4: TEMPORARY SEPARATION:
Spouses may be authorized by the court to live temporarily apart when there is a pending
judgment of annulment of marriage, separation, or divorce between them. In the latter two
cases, temporary separation may be established by the presiding judge in the interest of the
spouses and the offspring.
Temporary separation tends to prevent the spouses from having to continue a cohabitation
that has become difficult and painful.
However, from the point of view of material assistance, the court may arrange interim
measures in favor of the spouse in financial difficulty, settling a maintenance allowance and
possibly awarding the enjoyment of the family home.
It is also argued that in the case of a breach of the duty of fidelity, the de facto situation
created between the spouses with the termination of cohabitation must also be taken into
account for the purposes of the debit: thus, even in the case of temporary separation, the
subsequent breach of marital duties may justify a final pronouncement of debit.
The court must also order the custody of the offspring and the fulfillment of the maintenance
obligation incumbent on the non-custodial parent.
6.5. DE FACTO SEPARATION
De facto separation can result either from agreement or from the unilateral decision of one
spouse that is manifested to the other.
This type of separation is different from the so-called removal from the family home.
The latter presupposes the momentary interruption of cohabitation by the spouse's unilateral
decision: if this decision is based on reasons appreciable by the system, it is called
unjustified removal, otherwise it is called unjustified removal. From the latter, the effects
provided for in Article 146 arise, while from unjustified estrangement there is a limited
modification of marital duties: the duty of cohabitation remains, in fact, suspended, while the
duty of contribution remains, which takes place with the payment of a maintenance
allowance in favor of the needy spouse and for the satisfaction of the needs of the offspring.
De facto separation can result from estrangement in two scenarios:
❖ If the abandoned spouse does not call back, within a short period of time, the other
spouse, showing consent to the situation that has arisen;
❖ If the reasons that justified the estrangement are prolonged over time, creating a situation
of non-cohabitation.
In the case of de facto separation, the spouses may provide for the regulation of relations
with each other and with their offspring. The parent who has custody of children is entitled to
make decisions about daily life and can demand from the other a maintenance allowance for
them.
Since the separation is based on a will not expressed in the form prescribed by law, either
spouse may demand the restoration of marital cohabitation unless the conditions that
justified the estrangement still exist (art146).
In turn, the other spouse may initiate judicial separation proceedings if there is a situation
that would make new cohabitation intolerable. In any case, de facto separation may evolve
into legal separation; if he, however, merely refuses to restore marital life, he exposes
himself to a claim for debit of separation.
6.6. THE SEPARATION IN ITALY OF FOREIGN SPOUSES IN THE SEPARATION OF
ITALIAN CITIZENS ABROAD
Separation can be pronounced by the Italian court against the foreigner if one of the cases
provided for in Law No. 218/95 (see 3.8) is met.
Regarding domestic jurisdiction, Articles 706 and 711 c.p.c. apply (see 8.2 and 8.3).
The prerequisites, personal and property effects of separation are governed by the domestic
law of the spouses at the time of the application or, failing that, by the law of the state in
which married life is predominantly located.
If foreign law does not provide for the institution of separation, the effects are governed by
Italian law.
Italian citizens may obtain a judgment of legal separation abroad, even if their marriage was
celebrated in Italy. It takes effect in our country if the requirements of Articles 64 and 65 of
Law 218/95 are met (see 3.8).
6.7. RECONCILIATION
Reconciliation occurs when the spouses agree to end the separation. This may be done
expressly, by declaration not subject to special formal constraints, or tacitly, by the
reconstitution of the family. The express declaration is subject to registration in the
municipality's computer file.
The family consortium is considered reconstituted when spiritual and material communion
are stably re-established.
Reconciliation removes relevance from the conduct of the spouses in the period preceding it
and interrupts the passage of time to obtain a divorce. A subsequent request for separation
must therefore be based on facts that occurred after the reconciliation itself. In the event that
reconciliation occurs during the course of the trial, resulting in the
consequent abandonment of the separation petition already filed, there is only the extinction
of the proceedings: consequently, it will always be possible to file a new petition, invoking the
same reasons underlying the first one.
7. THE DIVORCE.THE CASES
Until a few decades ago, the only cause for the dissolution of marriage was the death of one
of the spouses, but with the passage of time and the evolution of customs, the idea that it
was necessary to come to the aid of those couples whose communion of life and affection
was now irreparably compromised became established.
Law 898/1970 introduced the institution of divorce, by virtue of which the court is given the
power to pronounce, at the request of even a single spouse, the dissolution of the civil
marriage today declare the termination of the civil effects of the concordat marriage.
The original rules have subsequently undergone significant changes, aimed primarily at
protecting the weaker spouse.
In order to arrive at the pronouncement of divorce, the following conditions must be met (Art.
1 Div Law): That, according to the judge's assessment, the spiritual and material communion
between the spouses cannot be maintained or reconstituted; That the marital crisis depends
on one of the causes peremptorily provided for by law (Art. 1 Div Law).
Divorce may be requested by a spouse who falls under one of the following circumstances:
1) conviction suffered by a spouse, after the celebration of the marriage, including for acts
committed previously:
(a) To life imprisonment or a sentence of more than 15 years for one or more nonnegligent
crimes
(b) To any term of imprisonment for certain crimes against morality and decency (incest,
rape, rape for the purpose of lechery or marriage) or inherent in prostitution (inducement,
coercion, exploitation, aiding and abetting)
(c) To any sentence for voluntary murder of a child or attempted murder toward the same or
toward a spouse
d) To any prison sentence for aggravated bodily injury, breach of duty of care, mistreatment,
circumvention of an incapacitated person, to the detriment of a spouse or child.
2) Failure of the spouse to be convicted of any of the crimes provided for in (b) and (c) due to
his or her total mental defect or due to the extinction of the crime.
In this case, an application for divorce is allowed because of the profound difficulty the
innocent spouse would face in continuing to share life with one who has been convicted of a
particularly serious crime.
The spouse's pre-marital knowledge of the criminal acts committed by the other does not
preclude divorce if the conviction occurred after the celebration. Legitimate to act is only the
innocent spouse.
(3) Legal separation pronounced against the spouses that continued uninterruptedly for three
years. The term
three years runs from the appearance of the spouses before the president of the court for the
attempt at conciliation, in the course of the separation trial.
4) final pronouncement of annulment or dissolution of marriage, obtained abroad by the
foreign spouse; or celebrations, on his part, of a new marriage, in countries where bigamy is
allowed.
This was intended to prevent the Italian spouse from being adversely affected by the foreign
spouse's initiative to free himself or herself from the marriage bond or to contract a new one
while the Italian citizen remained bound by the marriage previously contracted..
The Italian spouse was thus granted a quick and secure means of recovering his or her
freedom of status.
Consequently, divorce could not be granted if it was the Italian citizen who brought the action
before the foreign court.
5) Failure to consummate the marriage after its celebration. This cause of action has its basis
in the nature of married life, which is also characterized by the union of the spouses in sexual
terms. Legitimate to the action are both spouses.
6) intervention of a final pronouncement by which sex attribution rectification is carried out. In
this case, dissolution automatically arises from the sex change, since an essential
prerequisite of marriage, i.e., the sex difference of the spouses, is eliminated.
Compared with the previous discipline, divorce does not take the form of a sanction against
the guilty spouse, but is only a remedy against the irreversibility of the marital crisis.
7.2. THE PROCEEDINGS
The regulations governing divorce proceedings have as their fundamental objective to reach
a decision quickly, to avoid the aggravation of conflict between the spouses and to avoid
prejudicing the position of the weaker spouse and children.
For this reason, the '87 reform reduced the time limits and introduced important innovations,
such as abbreviated proceedings, which can be requested upon joint application by the
spouses (arts. 4 and 23 Div Law).
The abbreviated procedure presupposes an agreement of the parties on the dissolution of
the bond and a complete regulation of mutual property relations and the status of the children
(4 and 13 Div. Law). It is not a consensual divorce, as the court must still verify the existence
of one of the grounds provided by law to justify the dissolution of the marriage.
The proceedings are held in chambers.
Ordinary procedure: is similar to judicial separation. It begins upon an application by one
spouse, to be served on the other party, which must also contain a statement of the facts on
which the application is based. The judge shall set a hearing for the parties to appear within
five days after this submission.
Competent judge is the court of the place where the defendant spouse at residence or
domicile. The intervention of the public prosecutor is mandatory..
The first phase of the trial is held before the president of the court, who must attempt to
conciliate the spouses and, if he or she fails to do so, issue temporary measures in the
interest of the spouses and children, which are immediately enforceable.
The spouses must appear in person, except for serious and proven reasons.
If the application for divorce takes place after the separation has been pronounced, these
measures are necessary only because the arrangement of relations passed at the separation
stage no longer meets the protection of the interests of the spouses and their offspring.
The judgment of the college is appealable on appeal and in the Supreme Court.
The first-instance judgment, which orders the payment of the postnuptial allowance, is
provisionally enforceable, and the court may determine that the allowance is due at the time
of the application (whereas prior to '87 the allowance ran from the passage of the
divorce).
The divorce decree can be appealed by the spouses or by the prosecutor in the interest of
minor children with legally incapacitated.
Divorce proceedings are terminated if the death of one of the spouses occurs before a final
judgment of dissolution of marriage is rendered. Once the judgment becomes final, it must be
recorded
in the marriage register by the registrar of marriages.
7.3. DIVORCE AND RULES OF PRIVATE INTERNATIONAL LAW.RELEVANCE IN
ITALY OF FOREIGN PRONOUNCEMENTS OF DISSOLUTION OF MARRIAGE.
If a divorce is pronounced in Italy with respect to foreign spouses or spouses of different
nationalities or is pronounced abroad and is to take effect in Italy, the same rules examined
in respect of separation will apply (8.11).
Divorce may be pronounced by the Italian court in the cases provided for by Law No.
218/1995 (see 3.8).
The prerequisites, personal and property effects will be governed by the common national
law of the spouses at the time of the application; failing that, the law of the state in which
married life is predominantly located will apply. Relations with children shall be governed by
the children's domestic law.
If foreign law does not provide for divorce, the effects are established under Italian law and
(Art. 31, Law 218/1995).
The foreign judgment of dissolution of marriage can take effect in Italy if one of the cases
provided for in Art. 64-65 Law No. 218/1995 is met and can only be submitted to the civil
registrar for annotation.
It is said to be contrary to the principles of public order, which does not allow the foreign
judgment to take effect in Italy, when the divorce is not a remedy for an objectively
irremediable crisis: for example, when it is based on
discriminatory reasons, such as repudiation, or when peace it was pronounced without prior
determination of the irreversibility of the crisis.
If the foreign divorce decree cannot take effect in Italy, the Italian spouse is still entitled to
obtain an independent pronouncement from the Italian court (Art. 3, n 2, letter e Divorce
Law).
Peculiar rules, for the recognition of foreign divorce, were introduced by the Hague
Convention of 1.6.1970 (see 8.11). In particular, if the spouses are both Italian citizens, it is
necessary that the foreign court has applied our law or, in any case, that the application of
the foreign law does not lead to results different from those that would have been reached
had Italian law been applied
8.2. THE EFFECTS OF SEPARATION WITH RESPECT TO THE
SPOUSES.ONPERSONAL RELATIONS
Legal separation produces significant changes in personal and property relations between
spouses and in those between parents and children.
Regarding the marital duties of cohabitation, cooperation, moral assistance and fidelity, a
minority interpretation asserts their complete extinction. In fact, only the duty of cohabitation
is extinguished, while the duty of cooperation remains if there are minor children.
Even the duty of moral assistance is not completely extinguished, as it is connected to the
marriage bond itself. Moreover, while it is true that the duty to daily moral support of the other
and to make him or her a participant in
one's own life, it is also true that that same support may become necessary in extraordinary
and serious circumstances, such as serious infirmity.
As for the duty of fidelity, this is considered violated only if there is conduct seriously
offensive to the honor and decorum of the other spouse: in particular, when adultery is
flaunted in public displays. In this circumstance, then, the duty of fidelity is translated into a
duty of respect for the other spouse. Obviously, this duty is greatly attenuated, although it is
not entirely diminished: in fact, it is to be ruled out that a spouse may lawfully start a de facto
family, as an alternative to the legitimate one, until the dissolution of the marriage.
Other important effects arising from separation are:
❖ Disappearance of the presumption of conception and by the husband of the child delivered
by the woman more than 300 days after separation, and (232(2))
❖ Possibility for the separated spouse to proceed with "adoption in special cases," without
the other spouse becoming an adoptive parent
❖ Exclusion of possibility for spouses to apply for legitimizing adoption
❖ Possibility of applying to the court for legitimation of one's own natural child without the
need for the separate court's consent
❖ Faculty for the judge to prohibit the wife from using her husband's surname if he may be
seriously prejudiced by it.
8.3. THE EFFECTS OF SEPARATION WITH RESPECT TO THE SPOUSES.ON
PROPERTY RELATIONS
Material assistance: separation does not terminate the mutual duty of the spouses to material
assistance, but this duty undergoes significant changes as a result of the termination of
cohabitation. A spouse who has not been charged with separation is entitled to receive a
maintenance allowance from the other if he or she lacks adequate financial means.
A spouse who is separated with a debit loses the right to maintenance and can only claim
maintenance payments if he or she is in a situation of need.
To obtain maintenance allowance, it is necessary to:
1. State of need of the applicant spouse: this occurs when the spouse has no income or
substance to be able to alienate in order to continue to enjoy the same standard of living as
in the marriage. The state of need, however, does not exist if the enjoyment of the married
standard of living is guaranteed to the spouse by benefits regularly fulfilled by others, such as
the partner, parents or other relatives.
2. Economic possibility of the other spouse to pay it: maintenance must be provided by
the spouse who has sufficient economic resources to guarantee himself or herself, the
children and the other spouse the marital standard of living. In this case, the income and
value of his or her assets should be taken into account, as well as the circumstances. In the
case where the obligor's income is insufficient to provide the other spouse with a standard of
living for maintenance as well, since the fundamental right
of the other spouse to a dignified existence, the obligor must strive for the satisfaction of his
or her needs, even by changing the use of his or her own resources. In addition, since the
obligation of maintenance is placed in the context of the duty to contribute, the spouse is
required, in fulfilling it, to make a more intense effort than if he or she owed only legal
alimony, if the satisfaction of the other spouse's essential living needs is endangered.
Evidence on the economic condition of the spouses can be given by any means.
The right to alimony arises when the conditions required by law are met, and in any case it is
necessary that a separation order has been made or that the proceedings are in progress.
The spouse asserting the claim to receive the allowance must prove the existence of the
constituent elements, i.e., the state of need of the obligor's possibility.
The creditor has a general lien on the debtor's movable property. If there is danger that the
obligor will evade performance, the court may require him to provide suitable collateral
(pledge, mortgage) or personal security (surety bond). The judgment ordering payment, per
Article 156 Paragraph IV, constitutes a title for the registration of judicial mortgage on the
debtor's property.
If the spouse liable for the payment of the allowance is in default, the other may apply to the
court for the seizure of part of his or her property, but there is also allowed the diversion of
part of the defaulting spouse's income. In practice, it consists of the transfer
forcibly, in favor of the spouse who is the holder of the allowance, of a portion of a claim that
the obligor has against a third party. The third party must be served with an order to make
payment directly to the spouse who is the beneficiary of the assignment. The third party will
be able to assert against him the defenses enforceable against the original creditor. If the
third party is found to be insolvent, the maintenance creditor spouse may take action for
performance against the spouse who owes the allowance. These rules also apply to
maintenance allowance liquidated upon consensual separation.
To prevent the allowance from losing value, clauses for indexing the amount may be ordered
by the court. In the absence of this clause, the creditor may still be able to ask the judge to
adjust the original amount for monetary devaluation.
The maintenance allowance may also change as a result of other circumstances: it may be
increased if the creditor's state of need worsens or the obligor's economic condition
improves; it may be decreased if the creditor's needs diminish or the obligor's economic
situation deteriorates.
The right is extinguished if spouses reconcile, if the marriage is dissolved, if the state of need
ceases, if there is economic impossibility of the obligor.
Succession Rights: the spouse separated without charge enjoys the same inheritance rights
as he or she had during the marriage cohabitation: he or she will therefore be entitled as a
legitimary to a share in property that varies depending on whether he or she concurs with
other legitimates (1/2 if he or she is the sole
legitimary,1/3 if he concurs with a child,1/4 if he concurs with more children,1/2 if he concurs
with ancestors ).
The spouse is also reserved the rights of habitation over the family home and the rights of
use over the accompanying furniture, if they belong to the deceased or are common. They
constitute a legacy of legitimacy: consequently, the spouse is both legatee and heir.
The spouse separated by debit is not given rights to the deceased's estate, except a life
allowance, if at the time of the opening of the succession he or she enjoyed legal alimony,
being in a situation of need (548 cod civ).
The amount of the allowance may not exceed that previously enjoyed by the spouse by way
of alimony and must be proportionate to the inherited substances, the degree of relationship
to the testator and the number of legal heirs. The life alimony allowance has a welfare
nature, but it also has an inheritance nature, in that it confers rights on the succession of the
deceased spouse: consequently, the spouse separated by debit will be considered a
legitimary, since the allowance will be configured as a legacy of legitimacy, so it must be
calculated taking into account all the inherited substances.
Subjects obligated to its payment are the heirs, legatees and donees, in proportion to the
benefit received.
Social security protection: the declaration of debit also extinguishes social security rights in
favor of the surviving spouse, except if he or she enjoyed alimony.
As for the reversionary pension, its function is essentially to ensure the continuity of the
means of support that the pension holder was obligated to provide.
Similarly, the spouse separated by debit is also entitled to receive the severance payment, if
he or she enjoyed alimony (2122 cod civ), accrued in favor of the deceased spouse, only if
the former enjoyed alimony (2122 cod civ).
Rights to the family home: the separated spouse may be granted the right to inhabit the
family home.
Property regime: see paragraphs 6.3, 6.14, 6.15
8.8 : THE EFFECTS OF SEPARATION WITH RESPECT TO CHILDREN.
With the interruption of cohabitation between the spouses, the custody of the minor offspring
and the determination of the property rights due to the custodial spouse must be carried out..
(a) Custody of the minor offspring: the basic criterion for proceeding with custody is the
protection and interest of the offspring; custody is usually ordered in favor of only one of the
parents, to avoid involving the children in the couple's conflict.
Therefore, the judge may order joint custody, that is, to both parents, resulting in the
assumption of equal responsibility in the educational program, or alternating custody, that is,
the children are entrusted for one period by the mother, for another to the father.
Another solution is the use of third-party custody, i.e., the temporary placement of the child in
a family other than the nuclear family, or custody to a
third party, when the parents are found to be unfit to care for the children or there are
particularly serious reasons justifying it.
The spouse's choice must fall on the parent who seems best suited from a material,
psychological and affective point of view and to ensure the protection and physical, moral
and psychological development of the child, guaranteeing an environment appropriate to the
needs of the children. Usually, the legal system favors maternal custody.
The non-custodial parent has the right-duty to visit the children and keep them with him or
her for certain periods of the year, determined by the court, unless these relationships may
harm the education and psychological development of the children. In fact, the very interest
of the child is the prevailing criterion for regulating visitation rights.
The exercise of parental authority rests with the custodial spouse for all matters of daily life,
while the other spouse must control this exercise and may seek the intervention of the court
if he or she believes that the custodial parent's decisions are detrimental to the child.
However, those decisions that involve particularly important interests of the child must be
made jointly by the parents. In this case, the custodial spouse must inform the other about
the need to make a decision on the matter, in order to put him or her in a position to
effectively exercise over the powers: any disagreement will be resolved by the judge.
(b) Property rights accruing to the custodial spouse: separated spouses remain obligated to
child support: consequently, the non-custodial parent must pay the other an allowance, in
order to fulfill the
own obligation. The holder of the allowance is the custodial parent, even if the interest
protected by the benefit is that of children. Ownership of the allowance will accrue to the
parent even when the child has come of age and is not yet able to provide for his or her own
support: of course, concurrent legitimation of the children will be needed if cohabitation with
the parent continues beyond attainment of majority.
To ensure the payment of the allowance, the ordinary court may arrange for the same
safeguards as for spousal maintenance allowance, i.e., personal or collateral security and, in
case of default, seizure of the wines and diversion of the obligor's income.
Again, orders, of a personal and economic nature, concerning children may be modified if the
assumptions on which the previous decision was based change.
8.9 : DWELLING IN THE FAMILY HOME
The right to the dwelling of the family home, in the case of separation, usually belongs, and
where possible, to the spouse to whom children are entrusted, according to Article 155,
Paragraph 4.
This means that the right can be granted only when one spouse holds the right of ownership,
surface or usufruct on the property or enjoys the property as a result of a lease or loan
agreement.
The family home then is the property where the family normally lived, and the right of abode
also includes furnishings and everything necessary for the normal enjoyment of the property.
The right of abode in the family home can also be granted to the noncustodial spouse as a
way of fulfilling the maintenance obligation: so this is possible only if the maintenance
allowance is liquidated. However, this right granted under these circumstances should not
only be framed within the framework of the right to maintenance, but also fulfills the specific
function of protecting the interest of the spouse, who is particularly in need, not to change
living environment for reasons of health, work or family relations.
The Supreme Court, moreover, has affirmed that the children's interest in living in the family
home must be put on the back burner when it is not proportionate to the severity of the
solution for the non-custodial parent. For this reason, the court must take into account the
interests of the weaker spouse.
The granting of the enjoyment of the family home to meet the needs of the children entails a
sacrifice of the rights of the spouse who owns the property, since he or she is deprived of the
enjoyment itself. This sacrifice, however, is justified by Article 42 of the Const, which allows
the ordinary legislature to introduce limits on the right to property in order to ensure social
function.
Controversial is the nature of the right that is constituted over the family home when the non-
assignee spouse is not the owner: according to some, a right in rem is constituted (right of
habitation over the house and right of use over the furnishings), according to others, a
personal right of enjoyment is constituted. The thesis followed is on the constitution of the
tenant's own personal right of enjoyment, in favor of the assignee spouse of the family home,
if the other spouse was a tenant of the same or both:
in fact, the former takes over the lease previously entered into by the other spouse, or
becomes the exclusive owner of the lease, if it was entered into by both.
This issue assumes significance in establishing the enforceability of the right of enjoyment
against third parties.
In fact, unenforceability would provide little protection to the spouse assignee of the house,
who could react, against the alienation of the property, only by an action for damages, which
would be inappropriate compared to the protected interest of actual enjoyment by the spouse
assignee of the property " family home." The new Divorce Law has provided a satisfactory
solution to the problem, establishing that the assignment of the house is enforceable against
the third party purchaser if transcribed pursuant to Article 1599 of the Civil Code. The same
principle can also be applied when the right is assigned to the separated non-custodial
spouse. The reference to Article 1599 has been interpreted to mean that transcription is
required, for the purpose of opposability to third parties, not only when the duration of the
right is more than nine years, but this solution limits the protection of the assignee spouse,
since the right is always unenforceable if not transcribed.
Consequently, the rule would be this: the right to the family home, within the limit of nine
years, is enforceable against third parties if it results from a deed having a certain date; for
the longer duration to be enforceable against third parties, transcription is required. In any
case, the third party's right must have arisen after the establishment of the right to the house
in favor of the spouse.
Expenses for the enjoyment of the property are borne by the assignee. Measures relating to
the home are also subject to amendment and termination and must be publicized in the
property records.
