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EXPLAINED: What you need to know about divorce law in Italy

After her American friend's marriage unexpectedly broke down in Italy, blogger Emma Cuthbertson looks at what foreign spouses need to know about the country's separation and divorce laws.

EXPLAINED: What you need to know about divorce law in Italy
Photo by Unsplash

After ten great years of marriage and a beautiful son, my American friend and her Italian husband decide to relocate from the US to Umbria in Italy.

My friend’s husband has a family home there, and they agree they could better progress careers while having a better quality of life for the entire family.

At first, living in Italy is fantastic. They live close to the husband’s family and his new business ventures thrive. My friend launches herself full-on into local life. She renovates the apartment, learns the language, builds a network of friends in the local community, cooks up a storm of Italian cuisine at home, and nurtures her family.

Eighteen months into life in Italy, my friend’s husband unexpectedly announces that he wants to separate.

Initially they talk and agree to marriage counselling. One morning, however, he gets an unusual 5am call on his cell phone that awakens the whole household. It soon becomes clear that he is having an affair. My friend asks him to leave.

My friend was left mid-air, emotionally and financially. No parachute. No warning.

READ ALSO: Italy's divorce rate shoots up by 60 percent during pandemic

Her husband was absent initially for five weeks, with complete radio silence with her and their son. My friend tried to access their main bank account in Europe, where all their monies had been transferred after the move and sale of their US property. The account was in her partner’s name and access was not possible.

Italian law has no leverage nor jurisdiction to appeal for access to overseas bank accounts under this kind of scenario.

If this happens to you outside of your home country, outside of your cultural safety zone, you will automatically kick into badass mode because you have to. Those qualities of tenacity and perseverance are what brought you overseas originally and ensured that you thrived.

But regardless of your strength and scrappy resourcefulness, it is still incredibly tough to navigate separation and divorce waters alone in a foreign country.

For that reason, we wrote this piece and asked Marco Calabrese, lawyer and founder of Family Law Italy in Rome, to provide some key information about approaching separation in Italy.

Here's what you need to know.

How long does the divorce process take in Italy?

  • It is a two-step process: Separation and then Divorce. It generally takes 6-8 months to obtain a (provisional) Separation Order either by mutual consent, or whereby it is not viable, via a judicial decision granted by a judge. Add roughly one more year to obtain the divorcée status if no dispute follows the Separation Order. The Separation Order is solely a legal agreement to terminate all legally binding aspects of the marriage and any joint ownership of marital assets. Some maintenance and custodial issues may be settled at this point. If agreement is reached, these conditions will be replicated in the divorce settlement a year later.
  •  A Fast Track Divorce system is in place in Italy; commonly used when a couple is able to reach a mutually amicable separation agreement. This path takes around 10- 12 months. Costs are not comparable to those of a divorce under litigation.
  • Alternatively, since 2015 in Italy, there is a collaborative path (negoziazione assistita) whereby the two parties and their lawyers come to a mutual agreement. The lawyers process the paperwork, and a divorce status can be reached in a matter of months without entering a courtroom. Finances may also remain undisclosed.
  • If it is impossible to mutually reach a separation agreement the average timelines for divorce in Italy are around five years minimum to complete the two steps. If one or both spouses wishes to remarry it is possible to obtain divorcee status (in around 18 months) even if maintenance or custody of the children are still not resolved.

How are assets divided?

It is important to mention that, in the case of contentious cases, an Italian divorce settlement will never get to the point of assigning marital assets to either party. Even with joint ownership of assets the divorce settlement will only make a decision on custody of the children and maintenance.

A separate judicial hearing on “who gets what assets” is often necessary under these circumstances. This needs to be filed in civil court only once the formal separation has been granted in family court (a section of the civil courts). The two proceedings are completely separate, from the Italian legal standpoint.

A lot depends on where your marriage took place:

  • If you are a mixed nationality couple and your marriage took place outside of Italy – and you both are in agreement- you can apply for divorce in the country where your marriage took place and choose which law should regulate your divorce: for instance, divorcing in Italy following the Texan Law in order to get divorced without a separation period. Or divorcing in France following the Italian Law.
  • If your marriage took place in Italy, you will have decided whether to opt for Joint or Separate Ownership of Assets. Separazione dei beni is somewhat similar to a lifetime prenuptial agreement. Under this option, all assets that each partner acquired independently prior to and during the marriage will remain in that person’s name solely. Conversely, Joint Ownership of Assets (Comunione dei beni) covers most assets acquired in both names of the spouses after and during the marriage. The idea of marriage as a partnership, as generally perceived in Anglo-American culture, is however, almost unrecognized by the Italian Legal System.
  • For EU internationals residing in Italy that married abroad, unless specific arrangements were made (e.g. prenups), these marriages fall automatically under the Joint Asset Ownership system in Italy. This is the same for most western non-EU internationals residing in Italy that have also officially registered their marriage in Italy.

Children and their place of birth

  • Children may not be removed from their habitual residence without the parents’ consent. Regardless of where children have been born, if they have lived in Italy for an appreciable period of time and they are taken out of the country without a partner’s consent, it is highly likely that they will be forced to return to Italy under the Hague convention and EU regulations. There are very few exceptions provided by the international law to this rule.
  • If it is not possible to get a partner’s consent to leave the country with the children, it is necessary to apply for a special permit from the family courts. Only once the permit has been granted is it possible to leave Italy with the children.

Financial Legal Aid

Free legal aid (Patrocinio dello Stato) is available when net yearly income is lower than €11.493,82 (add €1.032,00 per every child and/or dependent cohabiting).

Useful Resources:

Hooked to a Country (part II): International Relocation Orders and the Italian Courts – Marco Calabrese
Family Law in Italy: a new guide for expats – Marco Calabrese
Hague Convention Case Studies – Globalarrk
Survival Tips for Stuck Parents – Globalarrk
The Power of Finding Solutions Together – Divorce Dialogue Podcasts – Miller Law Group
Divorce and Mediation Videos – Miller Law Group
Joint Custody with a Jerk – Julie A. Ross, Ross Corcoran, Judy Corcoran
Crazy Time: Surviving Divorce and Building a New Life – Abigail Trafford
International Parental Child Abduction – US Department of State
Divorce and legal separation – European Union
Support Guide to Women’s rights and Resources in Milan – Comune di Milano

About the author:

Emma Cuthbertson, based in northern Italy with her family, is a Salesforce Marketing Cloud Consultant who also blogs regularly for MumAbroad. This is an edited version of an article originally published on MumAbroad.

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MONEY

How much does it cost to raise a child in Italy?

How big is the financial commitment parents have to make in Italy to pay for their offspring’s needs and expenses until they’re grown up and independent? Here's a look at the predicted costs.

How much does it cost to raise a child in Italy?

Family is the bedrock of Italian society, but it’s also an unbalanced economic crutch, propping up children who leave home much later than most of their European counterparts.

Various factors are at play, from a declining birth rate, youth unemployment, being unable to get on the property ladder to young Italians moving abroad in search of better financial opportunities.

It probably comes as little shock, then, that parents in Italy end up forking out huge sums of cash to support their offspring through childhood and early adulthood (and beyond).

Even just up to the age of 18, raising a child in Italy can cost upwards of €320,000, according to data from Italian consumer research body ONF (Osservatorio Nazionale Federconsumatori).

The average spend of raising a child from 0-18 years is €175,642, but it rises in families with high incomes, classed as over €70,000 per year.

READ ALSO: Italian class sizes set to shrink as population falls further

Researchers noted that the cost of bringing up children has jumped up following the effects of the pandemic too: compared to 2018, child-rearing expenses increased by 1.2 percent by 2020.

The decrease in expenditure related to transport due to spending more time at home, as well as those incurred for sports and leisure activities, was not enough to mitigate the increase in costs for housing and utilities, which increased by 12 percent compared to 2018.

Photo by Suzanne Emily O’Connor on Unsplash

Food prices rose by 8 percent compared to 2018 and education and care jumped by 6 percent for the same timeframe.

In fact, Italy ranks as the third most expensive country in the world for raising children, only coming behind South Korea and China, according to data from investment bank JEF.

The pandemic has contributed to extending an already growing phenomenon: the decrease in annual income of Italian households.

Household income dropped by 2.8 percent from 2019 to 2020, the report found, citing data from national statistics agency Istat. It marks a further squeeze for families, especially low-income and single-parent families.

Depending on earnings, the amount needed to bring up a child until the age of 18 varies considerably.

READ ALSO: ‘Kids are adored here’: What being a parent in Italy is really like

A two-parent family with an annual income of €22,500 spends an average of €118,234.15 to bring up a child until the age of 18; for the same type of family but with an average income of €34,000 per year, the total expenditure to bring up a child increases to €175,642.72.

For high-income families, stated as over €70,000 annually, raising a child costs €321,617.36 on average.

The figures mark an increase of around €5,000 for low- and middle-income families, and a much sharper rise of €50,000 for high-income families, compared to ten years ago.

The money gets spent on housing, food, clothing, health, education and ‘other’ categories. The report revealed that the average spend on a child aged 16 years old is almost €11,500 annually, amounting to €955.78 per month.

Almost €2,000 per year gets spent on food, €1,615 goes on transport and communication, €782 goes on clothing and €1,600 goes on education annually, the report found.

They begin small, yet the costs are anything but. (Photo by LOIC VENANCE / AFP)

For the ONF, “these data highlight how, today more than ever, having a child is becoming a luxury reserved for the few, which fewer and fewer Italians are able to afford.”

READ ALSO:

The numbers on supporting children after their 18th birthday are a little hazier, as when children eventually fly the nest varies – but figures from Eurostat show that Italy ranks third in Europe for the average oldest age at which children move out of the parental home, at 30.2 years old.

Only young people from Croatia and Slovakia wait longer to live independently, while the EU average for flying the nest is 26.4 years old.

Even then after eventually leaving home at over 30 years old, it’s not entirely clear how many Italians are fully independent once they get their own address, or whether their parents continue to bankroll their living costs.

Italy’s president Sergio Mattarella sent a message to Italy’s Birth Foundation (Fondazione per la Natalità) in May stating, “The demographic structure of the country suffers from serious imbalances that significantly affect the development of our society.”

In response to worsening economic circumstances, the Italian government has recently pledged to do more to help people have families and reverse Italy’s continuing declining birth rate.

It has introduced the Single Universal Allowance (L’assegno unico e universale), but along with it has dropped various so-called ‘baby bonuses’ that provided lump sums to new parents.

The new allowance is a monthly means-tested benefit for those who have children, or are about to have a child. It is payable from the seventh month of pregnancy until the child reaches the age of 18 or in some cases, 21. For more information on what it is and how to claim it, see here.

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