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.
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.
