Cross-Border Divorce and Child Custody: two kinds of Separation in Italy

If you are in an international marriage or you and your spouse lives in a different country from your State of citizenship and you want to start filing for (a cross-border) divorce, you may be facing some problems with identifying the applicable law and the competent Tribunal.

It is fundamental to start your case to the right Tribunal identifying the law to apply as the provisions of separation and Family Law can be really different from one State to another.

A qualified cross-border lawyer with a specific knowledge on both jurisdictions of the spouses can be really helpful to provide you with a skilled legal assistance on your family-law-related matter.

Firstly, under Italian law it is made a distinction between two different ways to get a separation:

1. Uncontested separation (in Italian “Separazione Consensuale”): based on a separation agreement reached and signed between the spouses whereby they determine the terms of the separation (e.g. division of assets, child custody, alimony and spousal support, etc). in this case the parties are asked to file an application to the Italian Family Court specialised section by which the lawyer(s) states that a separation agreement between the spouses has been reached.The Court will check whether the agreement is compatible with the Italian legal system with particular reference to the separation and divorce law. The agreement is asked to take into account the major interest of the children and the needs of the economically weaker spouse.There is an obligation by law for the Court to attempt a reconciliation of the spouses before proceeding with the separation. If the reconciliation procedure cannot achieve the desired outcome and the agreement submitted by the lawyer on behalf of the spouses meets the legal requirements, the Court approves the separation agreement.This first procedure is faster and cheaper, but it requires that the spouses cooperate to reach the agreement by reciprocal concessions.

2. Judicial/Legal separation (in Italian “Separazione Giudiziale”): in case the spouses are not in the position to reach an agreement, one of them needs to file an application for judicial separation.
   The Court will review the relevant documentation, examine eventual witnesses and finally issue a judgement establishing rights and duties of each spouse and defining the terms of the separation, including the issue of the children custody.

Usually, Italian law is advocating more to a shared child custody than to a full child custody. So, both parents will be allowed to share the parental custody, acquiring the same rights and duties towards the children. In this case both parents are bound to provide for the children’s needs. In the event that one of the spouse is not in the position to support the children, the judge mandates that the other spouse must provide them with alimony.

Despite the law preference for a shared child custody, the Court has the power to establish the full child custody to just one of the parents only when the other party is proven highly inadequate to take care of the child. This can happen whenever the spouse shows a lack of interest towards the children. Let us take, for example, when the spouse who is bound to pay alimony fails to complete the payment or does not provide for a proper education for their kids.

Child custody is different from placement. Usually the judge will grant it to just one of the parents, so that children can grow in a stable home environment, preferably in the same house where the family used to live before the separation.

Finally, the Court’s judgement will also provide for the alimony, in case it is needed.

According to the former case-law, the spouse ‘non-liable’ for the divorce (e.g. the person who has suffered betrayal) had the right to keep the same lifestyle granted during the marriage. As a consequence, the culpable spouse was usually asked to pay the alimony. In a very recent case, the Italian Supreme Court stated a different principle, according to which the spouse economically independent has no right to receive any alimony. This case-law has revolutionized the Italian family law system and it is likely it will affect the following case-law.

In any case, it is really important to be aware that under Italian law, anyone who fails to pay the alimony may be liable of a criminal offence.

In case you are facing an international separation with more than one law system involved, it is fundamental to be advised by a qualified cross-border lawyer who will follow you throughout all the procedure figuring out the competent Tribunal in your particular circumstances, the applicable law, and the best legal remedies that may be help your best interests.

You might also be interested in our article on Competent Jurisdiction and Applicable Law