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ITALIAN FAMILY LAW

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In the strict and originating sense, the term “family” means a small community of people that lives in the same home. The Law that regulates the relations within it is the set of national and international rules concerning the discipline of these people, linked to each other by, as applicable: marriage bond, cohabitation, civil union, family relationship or affinity.

 

The Di Nella Law Firm offers legal advice and assistance in the following areas:

Set of agreements with which the future spouses arrange ahead their personal and property relations in case of separation/divorce. Although still considered as legally invalid, the pre-nuptial agreement is increasingly acquiring a strong probative value.

The term marriage denotes both the act by which the conjugal society is founded, and the legal relationship between the spouses. The legislator in fact disciplines both profiles when it comes to their validity and its effects (rights and obligations of the spouses, effects on property, inheritance law, etc.)

Also known as Cohabitation Agreement, they represent a set of agreements by which the couple defines the rules of their cohabitation through the regulation of their property relations and some limited aspects concerning their personal relations, such as the designation of the support administrator. The agreement can also cover the property consequences following the termination of cohabitation. The Cohabitation Agreement can be signed by people who are linked by an affective bond and who decide to live together long-term, which in the Italian system is known as more uxorio.

A civil union is social formation by two same-sex adults through a declaration in front of the Registrar and two witnesses. In Italy, the legal institution of the civil union is regulated by the Cirinnà Act.

With the reform of the family law, the concept of parental authority intended as parental power over their children was replaced by parental responsibility. The concept of parental responsibility is meant as the duty of the parents towards their children to maintain, educate, instruct and morally assist them, always with due regard for the children’s capacities, natural inclinations and ambitions.

Institution that determines the loosening of the marriage bond and the consequent reduction of rights and obligations of each spouse, who is authorized to live separated from the other. The property rights can turn into the requirement for alimony (maintenance for the spouse) and/or child support. Unlike divorce, the legislation that allows spouses to live separately does not imply the dissolution of the marriage bond, which can be confirmed again any time with a reconciliation.

The legal separation can be requested by one spouse and can be:

 

  • consensual: when the spouses mutually consent on all the separation conditions, the agreement is produced in form of an appeal or of an assisted negotiation agreement, which will be filed in Court, or at the Public Office (Procura). These agreements will be object of approval by the Court or of authorization (Nulla Osta) by the Public Prosecutor’s Office (Procura della Repubblica). In both cases, the documents will carry an enforceable order.

 

  • judicial: when the spouses cannot agree on all the aspects of the separation, one of them can request a ruling to the last common residence Court. In this way, all decisions regarding the separation will be delegated to the legal body. The conditions of separation can be modified any time by the Court upon request of one of the parties whenever new matters of fact and law arise after the measures have been taken.

Divorce is the legal institution that allows the dissolution or the cessation of the civil effects of marriage whenever the spiritual and material communion between the spouses cannot be preserved or restored.

 

The dissolution of marriage happens whenever there was a civil marriage, whereas with a Catholic marriage we deal with the cessation of civil effects.

 

A “quick divorce” can be sought 6 months (in case of consensual separation) or 12 months (in case of judicial separation) after the hearing with the President of Court.

 

A divorce can be:

 

  • joint: when the spouses agree entirely on the conditions of the divorce, the agreement is produced in form of an appeal or of an assisted negotiation agreement, which will be filed in Court, or at the Public Office (Procura). These agreements will be adopted during a decision issued by the Court or during a negotiation agreement object to an authorization (Nulla Osta) by the Public Prosecutor’s Office (Procura della Repubblica). In both cases, the documents will carry an enforceable order.

 

  • contentious: when the spouses cannot come to an agreement on the conditions of the divorce, one party can request the Court the dissolution of the bond. The matter will be left to the Court, which will deliver their decision in collegiate court with a judgment, also known as divorce decree. The provisions of the judgment can be modified and revoked by the Court upon request of one of the parties whenever “new” matters of fact and law arise after the measures have been taken.

The relation between de facto couples (more uxorio), i.e. couples whose bond is not based on marriage, could end likewise. In such event, it is fundamental to settle on matters concerning children (same as children born within a marriage), the family home and the couple’s property and personal relations.

It is an institution that regulates a different arrangement for negotiation aiming at family dispute resolution with the specific purpose of finding an agreement without resorting to legal proceedings.

The measures that the Judge can adopt by decree on request of a party aiming at ordering the cessation of the conduct of the spouse or the co-habitant that is cause of severe damage to physical or moral integrity, i.e. the freedom of the other spouse or co-habitant. The conditions needed for the request are regular cohabitation and a severely prejudicial conduct affecting the physical integrity.

Economic measure disposed by the Judge or intended by the parties as a result of an agreement between them. It consists in periodic monetary sums from one spouse to the other as contribution to the material need of the children and/or of the economically weak spouse.

Way of the parent to contribute to the necessary expenses of their children’s life not through a monthly payment of monetary sums but by directly providing to the fulfillment of the children needs.

When a couple breaks up, there needs to be discipline concerning custody and placement of the minors. The guideline for child custody usually aims at joint custody, which consists in the tendentially equal sharing between the parents as regards to care and education tasks for the minors, regardless of the time the child spends with each parent.

 

  • Sole custody is arranged only when custody to the other parent is against the minor’s interest. However, sole custody does not preclude the other parent from shared responsibility decisions concerning greatest interest, health among them.

 

  • The reinforced sole custody (affido super esclusivo) transfers also the decisions concerning greatest interest to the custodian parent, letting the other parent keep the right/duty of monitoring without any decision-making power on the child.

With minors’ placement we mean the period of time a child spends in the care of a parent. Placement can be:

 

  • primary placement: when children are primarily located at one parent’s house, while the other parent is granted more or less extended visiting rights.

 

  • shared placement: when joint custody is awarded, children spend equal time in the care of both parents.

Those proceedings regulated by the Civil Code that can be exercised in case of marital filiation. Among them, there are the “claim of the legal status of the child” (“reclamo dello stato di figlio”) expressed by art. 239 Civ. Code, and “contestation of the legal status of the child” (“contestazione dello stato di figlio”), regulated by art. 240 Civ. Code.

 

This legislation is not applicable to non-marital filiation.

 

Both actions are imprescriptible, therefore the status of a child born within marriage can be contested and claimed at any moment.

 

With the action of “claim” (reclamo), the interested party can request the status of child born within marriage when, for reasons strictly listed in art. 239 of the Italian Civil code, this was not conferred to them at birth. Whereas with the action of “contestation” (contestazione), the status conferred by mistake can be removed, for strict reasons as well, at the initiative of who appears to be the parent or of whoever has an interest, child included.

A child that has not been recognized by one or both parents could change his recognition status after a Court ruling. After verifying the biological relationship, the Court can declare the child’s “status”. The action can be requested by the involved parent, the child, the prosecutor.

 

This procedure will allow the formerly non-recognized child to benefit from the same rights as the “legitimate” child.

This procedure represents a unilateral declaration of science with which a person states they are someone’s mother or father. On the basis of this irrevocable deed, the birth certificate is compiled.

 

If the child was previously recognized, the legitimacy has to be dropped through a legitimacy contestation action, before proceeding with the recognition.

Our Firm offers legal advice and assistance concerning Law 40/2004 which provides access to medically assisted procreation for adult couples of different sex in a long-term cohabitation. The presence of the necessary subjective requirements will be verified.

Action that represents a solution set by the legal system that aims at obtaining a judicial ruling which determines that the person who was believed to descend from another isn’t actually biologically linked to the latter.