In order to ascertain if Italian courts have jurisdiction over divorce and legal separation, on the one hand, and on marital property regime and asset division, on the other hand (the latter two matters being completely separated issues, which can be treated together with legal separation or divorce only if the parties reached an agreement, by which the related issues are settled), Italian private and procedural international rules must be applied. The problem is that the relevant rules must be looked for in several different UE regulations and at least one domestic law act (legge, 31 maggio 1995, No 218), and namely:

• jurisdiction concerning matrimonial (i.e., legal separation and divorce per se) and parental responsibility decision must be established according to EU regulation No 1111/2019;
• jurisdiction concerning decision on financial support (which, depending on the perspective, may or may not include asset division – from an Italian perspective they do not), must be established according to EU regulation No 4/2009;
• jurisdiction concerning marital property regimes has to be established according to EU regulation No 1103/2016;
• jurisdiction concerning property regimes related to non-marriage registered relationships, has to be established according to EU regulation No 1104/2016.

Furthermore, many of the abovementioned regulations contain provisions which leave to the parties a varying degree of liberty to elect a jurisdiction different from the default one.

However, to sum up and very generally, Italian courts will have jurisdiction on legal separation and divorce when:

• the spouses are habitually resident in Italy;
• the spouses were last habitually resident in Italy, insofar as one of them still resides there;
• the respondent is habitually resident in Italy,
• in the event of a joint application, either of the spouses is habitually resident in Italy;
• both spouses are Italian nationals.

The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question.

Furthermore, if, according to the relevant EU regulations, Italian courts had jurisdiction concerning legal separation or divorce per se, it is very likely that they would have jurisdiction also on the matters related to maintenance and marital property regime (while the latter issues should be dealt with in the frame of different proceedings).

Conversely the jurisdiction on matters related to parental responsibility will usually depend upon the children being habitually resident in Italy, and, if this was not the case, the related issues could possibly be dealt with in the different Country where the children are placed (see below under No 21).

Finally, jurisdiction concerning the division of assets should must be grounded on the fact the assets to be divided, especially if they are real estate, are placed in Italy.

While making a decision concerning jurisdiction, Italian courts, lacking any discretionary power on the related issues, shall adhere strictly to the criteria of habitual residence and citizenship set by domestic and European law.

In particular, while deciding whether someone is habitually resident in Italy or abroad, Italian courts should evaluate all facts, be them objective (such as the days actually spent in a given Country), or subjective (such as the will to build a life in a given country), which may be deemed relevant to locate the place where the same person is dwelling in a permanent way; and such evaluation will prevail on any formal evidence such as someone being registered as a resident in a city registry.

The only leeway Italian court can exercise when ascertaining if they have jurisdiction is that left to them by European Union regulation and domestic law with regard to matters concerning children: when strictly applying a general rule would bring about a result that does not seem to be compatible with their best interest, indeed, the jurisdiction of another Country courts could be acknowledged.

According to Italian private international law, while facing an international case, the law(s) to apply to any or all of the relevant issues must be ascertained independently from jurisdiction; however, as it happens with regard to jurisdiction (see above under No 1), the relevant rules must be looked for in several, different UE regulations and at least one domestic law act (legge, 31 maggio 1995, No 218), and namely:

• the law to apply to legal separation and divorce has to be identified according to EU regulation No 1259/2010;
• the law to apply to financial support for the parties of the marriage and for the children has to be identified according to the Hague Protocol of 23 November 2007, to which refers the abovementioned EU regulation No 4/2009;
• the law to apply to marital property regimes has to be established and identified according to EU regulation No 1103/2016;
• the law to apply to property regimes related to non-marriage registered relationships has to be established and identified according to EU regulation No 1104/2016.

Furthermore, many of the abovementioned regulations contain provisions which leave to the parties a varying degree of liberty to opt for the application of a different law: for example, according to article 5, EU regulation No 1259/2010, the parties of a marriage can opt for the application to legal separation and divorce:

• of the law of the State where they are both habitually resident at the time of the agreement;
• of the law of the last State of habitual residence of both parties if one of them still resides there at the time of the agreement;
• of the law of the State of which one of the parties is citizen; or
• finally, of the law of the State of the court in front of which proceedings are pending, even if the law of choice is not the law of a member State.

However, on the one hand, as it is possible that Italian judges apply the law of a different Country, even if something such as a prenuptial agreement was not binding according to Italian law, it could be recognized as fully enforceable according to the law of the foreign Country: the enforceability and binding force of any agreement concerning substantial matters (ie matters unrelated to choices of jurisdiction and options for law, but, again for example, to prenuptial agreement or postnuptial agreement) shall, indeed, be assessed with regard to the rules of the law which has been identified as the one applying to the case, according to the principles of private international law (eg, if the Italian judge will be called to apply Scottish law, the same judge should acknowledge the binding force of a Scottish prenuptial agreement, even if such agreements are not admitted by Italian law).

On the other hand, as every law system, the Italian system has not only sets of overriding mandatory provisions (such as those protecting the best interest of the children) which may bring to the denial of the application of a foreign law (eg, if, according to the same prenuptial agreement, one of the parent was totally exempt to the duty of contributing to the support of the children, this provision would be considered null and void), but has also very deeply embedded principles which may lead the judge (possibly by oblique routes) away from the application of foreign rules, that, while referred to by private international law, may be felt as too ‘alien’ to be ‘domestically’ enforceable (as it may happens, for example, in continental systems, like the Italian one, with regard to marital assets division, which is customary in common law system).

According to article 3 of the Italian divorce act (legge, 1 dicembre 1970, No 898), divorce may be requested directly (ie without having entered in a legal separation beforehand) by one of the parties of a marriage only in extreme cases (e.g. the other party has been found guilty of serious criminal offences; has been acquitted after a criminal prosecution due to total mental incapacity; the marriage was never been consummated etc…). Therefore, in an overwhelming majority of cases, it will be a pre-requisite for the parties to apply for a court order of legal separation before an application for a divorce can be made.

In particular, according to article 3, No 2, lett.b, of the abovementioned divorce act, in order to apply for divorce, it will be necessary:

• that a final order of legal separation has been issued (‘sentenza di separazione’);
• that this order should not be subject to any further appeal (‘passaggio in giudicato’);
• that at least one year has lapsed since the first appearance in court of the parties in the legal separation proceedings (this period may be shortened to six months, but only if the parties had entered in a legal separation agreement – ‘separazione consensuale’);
• that the parties have not been reconciled.

However, the procedural law has been recently changed by the so called ‘Cartabia reform’ (decreto legislativo, 10 ottobre 2022, no 149), which applies to all proceedings started after 28 February 2023 and, therefore, according to the new provision of article 473bis.49 of the Italian Civil Procedure Code, it is now possible to file a divorce request together with the petition for legal separation; nonetheless, even if the requests for legal separation and divorce are filed together, the court can deal with the latter only after the fulfillment of the abovementioned conditions.

Furthermore, while the right to enter in a legal separation and to divorce are not fault-based, the liability for the legal separation (‘addebito della separazione’) is still relevant and belongs to the field of the status: in particular, in order to issue ‘addebito’ orders, which radically exclude the right of the financially weaker party to receive any support exceeding a bare minimum (‘alimenti’), Italian courts require that the other party proves that the former has violated the duties arising from the marriage and that this behaviour was the direct cause of the breakdown.

Taking into account the time needed to obtain a legal separation order and the need to wait the expiration of the yearly term running from the first personal appearance of the parties in the legal separation proceedings (which, as stated above, is shortened to six months if the legal separation has been entered into by agreement), a divorce order is unlikely to be issued before one year after the parties have reached an agreement to that effect, but may require a significantly longer amount of time (at least 18/24 months) if no agreement may be reached and all relevant decision must be taken by the court; furthermore, while this timescale may be sufficient to solve the issues related to the status of the parties, reaching a solution concerning the accessory issues (eg children custody, financial support) may take significantly longer.

If family proceedings are filed on behalf of only one of the parties, the court will issue an order (‘decreto di fissazione di udienza’) setting the date of a hearing and the deadlines for the submittal of written defences and for the service of the petition and of the same order to the respondent; then both documents should be served in a timely way to the respondent, as follows:

• if the addressee has a certified e-mail address (‘indirizzo di posta elettronica certificata’ or, shortly ‘indirizzo PEC’), service must be done by certified e-mail;
• if service cannot be made by PEC, usually it must be performed by the Clerk of the court (‘ufficiale giudiziario’), who will, first, serve the documents personally (if the addressee lives in the city of the court), or by mail (if not), and, afterwards, provide the person requesting the service with the ‘relata di notifica’, confirming that the service has been made, according to the rules set by the Italian Civil Procedure Code;
• if the service has to be made to someone living abroad, it should be made according to the rules set by the EU regulation 1784/2020, if it is to be made in a Country being a member of the Eu, or, if not, according to the Hague convention of 15 November 1975, of which Italy is a signatory party.

Conversely, if the party reached an agreement, they would be entitled to apply jointly for legal separation or divorce or for the issuance of orders concerning children; in this case, while the court would issue an order setting the schedule for the simplified proceedings, required for the issuance of orders by consent, no service will be required.

Foreign marriages and civil partnerships are automatically recognized in Italy and, upon submittal of an apostilled and translated copy of the related certificate, can be transcribed in the Italian marriage city registers, with no formalities.

Customary marriages will have no effect in Italy, unless they are recognized by a foreign Country, in which case, they may be recognized as foreign marriages.

Catholic religious marriages made in Italy (‘matrimoni concordatari’) are specifically recognized as having the same effects of civil marriage, if all requisite set by the concordat of 1984 between the Italian State and the Catholic Church are met; however, in theory, those marriages, which are transcribed in a specific part of the marriage registry, remain religious and, therefore, are not subject to divorce, but to the ‘removal of the civil effects of marriage made according to the concordat’ (‘cessazione degli effetti civili del matrimonio concordatario’), which, while under a different name, has exactly the same effects of the ‘civil’ divorce (‘scioglimento del matrimonio civile’). Furthermore, the ‘matrimoni concordatari’ can be subject to annulment according to the law of the Catholic Church (‘annullamento canonico’); however, the annulment orders made by the courts of the Church in no case will have effects on the children and, according to the Italian Supreme Court of Cassazione (‘Corte di Cassazione’) may be recognized by the Italian State only within three years after the wedding, provided that, if the marriage were to be so declared null and void, the financially weaker party will have no right to receive any lasting financial support, with potentially disastrous consequences if the marital relationship lasted for many years (see Cass., 17 July 2014, No 16379 and 16380).

In Italy, marriages can be celebrated also according to other religious forms, if this option is allowed by one of the agreements (‘intese’) in place between the Italian State and some religious organizations and churches other than the Catholic one (such as the Jewish Communities); however, in those cases, the religious facet of the marriage would be only an exterior appearance, because the marriage would remain a civil one.

Finally, religious marriages celebrated abroad may be recognized in Italy only if they are recognized as binding in the foreign Country where they are made and, therefore, in the perspective of Italian law, these marriages will fall in the same category as foreign civil marriages, their original religious character being irrelevant (to make an extreme example, a catholic marriage celebrated by the pope in the Vatican State, will be recognized in Italy as a foreign civil marriage).

Since the enactment of the so-called ‘Legge Cirinnà’ (legge, 20 maggio 2016, No 76), same sex unions (‘unioni civili’) are recognised in Italy as ‘social formations’ (‘formazioni sociali’ – article 2 of the Italian Constitution), analogous to traditional families based on marriage (which, conversely, according to article 27 of the Italian Constitution, are acknowledged, by the State, as ‘società naturali’, ie ‘natural societies’), and most of the rights and duties, which are granted to the parties of marriages and to which the said parties are subject, have been extended to same sex unions.

According to paragraphs 10, 11 and 13 of the single (and rather oversized) article of ‘Legge Cirinnà’, indeed, the parties of same sex unions may take the same surname, may choose their marital property regime (see under No 14) and are subject to mutual obligations of moral and material support, as well to cohabitation at a single residence and to contribution to the common needs of the family, in accordance with their assets and their working capacity, whether professional or domestic, as if they were parties of a marriage.

More in general, while, according to paragraph 20, all the provisions of Italian law related to marriage and to spouses shall also apply to the parties of same sex unions, with the exception of the provisions of the Italian Civil Code not expressly referred to in the ‘Cirinnà law’: therefore, provided that the relevant articles of the Italian Civil Code have not been referred to, by the law concerning same sex unions, on the other hand, there is no reciprocal obligation of fidelity between the parties, and, on the other hand, same sex unions have no relevance whatsoever with regard to parenthood.

Furthermore, as the application of Law, 4 May 1983, No 184 (ie the Italian law adoption) to same sex unions has been expressly by ‘Legge Cirinnà’, the parties of such unions are not eligible to adopt children; however, the Italian Supreme Court of Cassazione (Cass., 22 June 2016, No 12962) granted to the parties of same sex unions to avail themselves of the so-called ‘stepchild adoption’ (‘adozione in casi particolari’ – concerning the various kinds of adoption in Italy, see below under No 27).

Conversely, according to paragraph 21, the entire legal framework concerning succession and inheritance, applicable to marriages, has been extended to the parties of same sex unions.

As regards the dissolution of a civil union, this may occur in the following cases:

• in the event of the death of one of the parties;
• upon the request of one of the parties, in the cases provided for by the divorce law applicable to marriages (Article 3 of ‘legge 1° dicembre 1970 No 898’);
• upon the request for dissolution submitted, jointly or separately, by the parties before the keeper of the registry (‘Ufficiale di Stato Civile’);
• in the event of a court judgment rectifying the sex designation of one of the parties.

Finally, according to the legislation currently in force (article 8 of ‘Decreto del Presidente del Consiglio dei Ministri, 23 luglio 2016, No 144’), same sex marriages and unions, that have taken place in another jurisdiction, can be recognised in Italy, as ‘unioni civili’ (ie, as same sex unions and not as marriages), by registering them at the city of residence of one of the parties.

Italian court can issue only two kinds of financial orders, and namely orders concerning the maintenance of children, which are completely independent from the marital or non-marital character of the relationship between the parents, and order aimed at granting financial support for the weaker party of the couple, which may be issued only if the parties were married, or if they were bound by a same sex union (see above, under No 7).

However, even the latter orders, in the Italian perspective, have nothing to do with issues related to marital property and the division of assets, because, under Italian law, courts are never allowed to proceed with an asset division between the parties, neither are they allowed to transfer some of the goods belonging to the estate of one of them to the name of the other.

As remarked above under No 8, the division of any common asset fall outside the scope of a legal separation or divorce proceedings, in which a periodical allowance remains the only tool given to the judge in order to ensure that one of the parties supports the other; therefore if the parties owned shared assets they should be divided either by agreement, or by starting proceedings for judicial division of shared properties (‘giudizio di divisione’), which do not belong to family law, as they are the tools that shall be used by whoever wished to divide shared properties even if owned outside the context of familial relationships.

Furthermore, the only assets that can be considered as common are those that have been put to the name of both parties when they had been acquired, with no regard of the marital relationship, or those that had been acquired by the parties according to the rules of the ‘comunione dei beni’ marital property regime, described below under No 14, which are to apply even if the relevant assets were not explicitly put to the name of the parties.

Finally, as stated above, the rules concerning marital property regimes are very strict and are not subject to any degree of discretion by the court: there is no way therefore to vary them by reference to need.

According to article 473bis.22 of the Italian Civil Procedure Code, Italian courts are bound to issue interim provisions concerning the custody of the children, the attribution of the right to continue to live in the family home and the financial support for the weaker party of the couple and for the children after the first hearing of a family judgment.

However, as the new set of procedural rules, which apply since 2023 after the so called ‘Cartabia reform’, require the parties to submit to the court a total of five written statement in defence (three for the petitioner and two for the respondent, including the first petition – ‘ricorso introduttivo’) before the hearing is held, and, as these defences must be filed according to fixed deadlines preset by the law, the issuance of temporary orders will require a timescale of several months since the time when proceedings begun (‘several months’ meaning a ‘few’ in some territorial courts, but ‘many’ in others, as the workload and the organization of each ‘Tribunale’ vary wildly from place to place).

Provided that this state of things did not escape the attention of the authors of the new procedural rules (who, under other respects, paid very little attention to practical needs, other than discouraging people to avail themselves of any judicial remedies by making their working exceedingly cumbersome), the parties have been given the option to request the issuance of most urgent orders (‘provvedimenti indifferibili’ – literally orders that cannot be postponed), according to article 473bis.15 of the Italian Civil Procedure Code, which, when issued, will remain in place until normal interim orders are given.

Spousal maintenance, be it grounded on legal separation or divorce, will take almost without exception the form of a monthly allowance set on an ongoing base and subject to be modified or revoked if the circumstances under which it had been granted were to change in a subsequent time; however while these principle apply if the financial support orders are given by the court, the parties are free to agree that the allowance be paid for a fixed term, or that it be substituted by a lump sum payment, which, if grounded on divorce, and if deemed adequate by the court, will be final and will not be subject to further possible changes.

According to article 156 of the Italian Civil Code, the financial support grounded on legal separation (‘assegno di mantenimento’) is aimed at guarantying to the financially weaker party the conservation of the previous level of living, and, to that effect, the financially stronger party may be charged to pay an allowance to the other party, if:

• the latter is unable to finance the related expenses with its own means and
• the liability for the legal separation (‘addebito della separazione’) had not been charged to the same party according to article 151 of the Italian Civil Code.

According to principles recently stated by the Italian supreme court (‘Corte di Cassazione’), the function of the divorce allowance (‘assegno di divorzio’) for the financially weaker party (and, therefore, its amount), has been strongly limited, in order to respect the so-called principle of self-responsibility (see Cass., 11 July 2018, No 18287). The divorce allowance, therefore, is now meant to be a sort of exceptional measure, granted only in the two following cases:

• the financially weaker gives proof of needing specific assistance, being unable to meet, with its own means, its basic needs and therefore has the right to receive some assistance (obviously, in this case, the amount of the allowance could be very low), or
• the financially weaker party gives proof that the unbalance of the financial positions of the parties is a direct consequence of choices, agreed between the spouses, which implied that the weaker party incurred in such sacrifices as to fairly require a compensation (eg having given up a promising career, in order to take exclusive care of the children, or to sustain the career of the financially stronger party).

In particular, in the latter case, while establishing the amount of the allowance for the maintenance of the financially weaker party, the judge must consider the actual contribution made by the said party, not only to the life of the family and to the care of the children, but also to the building of the family estate.

However, in any case, the court will consider the duration of the marital relationship, the age of the parties, and their ability to earn an income autonomously even if they are not presently working: when the duration of the marriage has been very short, the parties are still quite young, and are engaged in a professional career, therefore, it is very unlikely that the court would grant a divorce allowance (and, possibly neither a legal separation one), even if, as it appears to be, one of them is clearly financially weaker than the other.

Finally, with regard to evidence gathering, the ‘Cartabia reform’ introduced article 473bis.12 of the Italian Civil Procedure Code, which rendered mandatory and extended to all matrimonial proceedings and to all proceedings concerning children the practice, originally adopted by some local courts (like the one of Milan), of requiring the parties to disclose, quite thoroughly, their financial positions, by submitting to the court, not only their last tax statements (which beforehand were the only documents which was mandatory by law to file in family proceedings), but also their bank account statements, financial statements and, more in general, all documents concerning real estate, vehicles and company shares owned by them.

In addition to this, Italian courts retain the power of ordering the parties to produce specific documents (‘ordini di esibizione’), and, when the evidence made available by theme is deemed to be unreliable (as it would happens if the expenses of one party inexplicably exceed his income), of ordering investigations on their real financial positions, which may be entrusted to the tax authorities (‘polizia tributaria’) and therefore furthered by the means available to the revenue service.

Furthermore, if the financial situations of the parties appeared to be of particular complexity, in order to assess their actual consistence, the court could appoint an expert (‘consulente tecnico di ufficio’), usually a financial advisor (‘commercialista’), who will provide, in writing, a full evaluation of the financial situations of the both parties. In this case, the parties will have the right to appoint their own experts (‘consulente tecnico di parte’) to assist the court expert; however financial court expert interventions tend to be time consuming, very expensive (their cost being determined on the basis of the total value of the parties estates) and, especially when the bulk of the assets is located abroad and not disclosed voluntarily, scarcely effective.

However, this kind of measures are never aimed at gathering a fully detailed image of the financial positions of the parties, as, absent the need of proceeding with an asset division (and therefore absent the need to allocate accurately any item of property and any sum of money belonging to the parties), for the purpose of issuing monthly alliance, Italian courts deems to be sufficient an averagely reliable assessment of the income, wealth and living expenses of either party.

Provided that, as previously remarked, in Italy there is no such thing as asset division, the measures aimed, on the one hand, at setting the terms according to which the need of the children are to be met and, on the other hand, at charging the financially stronger party an allowance to be paid to the other party, will be subject to international rules concerning the recognition and enforcement of foreign orders in cases of family maintenance and, namely, to EU regulation No 4/2009, and, outside its field of application, to other sources such as the Hague convention of 23 November 2007 which binds the United Kingdom and all the European Union member States, with no regard to ‘Brexit’.

However, from an Italian perspective, any asset allocation, dividing the marital assets by allocating a share of them to one or to the other party, especially if not directly aimed at helping the financially weaker party to meet the needs related to its level of living, could likely be deemed to fall outside the scope of the abovementioned rules, and, therefore, the issues related to the recognition in Italy of a foreign order to that effect should be faced according to the general rules given by EU regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

If a foreign divorce decision recognized in Italy (if it was not recognized, obviously, it would have no effect at all) did not treat in any way the financial aspects and Italian courts had jurisdiction on the related issues, it could be possible to request the issuance of financial provisions in Italy according to the law that should apply to the matter.

Conversely, if a foreign divorce decision recognized in Italy treated the financial aspects (possibly by ruling out the right of one of the parties to receive financial support), subsequent financial claims, filed in Italy according to Italian law, would be usually subject to the rules concerning the modification of Italian legal separation and divorce orders, and, therefore, would be taken in consideration only if, in the time following the issuance of the foreign orders, the situation of the parties changed in such way to justify a review of the financial provisions in place.

Under Italian law, there are two distinct marital property regimes: the communion of assets (‘comunione dei beni’) and the separation of assets (‘separazione dei beni’).

According to article 177-197 of the Italian Civil Code, under the regime of ‘comunione dei beni’, every single asset acquired by one of the parties during the marriage is assumed to belong to both of them, unless proof is given that the price has been paid with money belonging separately to one of the parties, and unless the same party has expressly stated, in writing, that the purchase is meant to be personal; anyway, any asset which has come to one of the parties by gift or inheritance would be considered to be separate and not subject to the communion, as any asset acquired, in any way, before the beginning of the marital relationship.

However, it is very easy to avoid the application of the ‘comunione dei beni’, because the process of selecting the opposite regime of the ‘separazione dei beni’ is a simple tick box exercise which requires no legal advice, and this choice, actually made by an overwhelming majority of couples (I cannot give exact figures but my guess is over 90%), has very strict legal consequences, which are not liable to be affected by any actual behaviour held by the parties during the marriage, with the only exception of a new agreement (‘convenzione matrimoniale’) which, in order to be binding, must be made in writing in the strict form of the ‘atto pubblico’ (public deed), with the intervention of a notary public.

According to article 215-219 of the Italian Civil Code, the ‘separazione dei beni’ means that the personal estates belonging to the parties of a marriage will remain completely separate, exactly as if the spouses were not married, even if they were entirely or partly built after the marriage or with an active involvement of the other party.

In other words, if the ‘separazione dei beni’ is to be applied, on the one hand, the marital relationship would have no consequences on the patrimonial assets belonging to either party, and, in case that a breakdown occurred, the financially weaker party could be entitled only to be supported by mean of a monthly allowance; while, on the other hand, according to the ‘comunione dei beni’ regime, the assets acquired during the marital relationship are, with some exceptions, to be considered jointly owned, even if they have been put in the name of only one of the parties, but the assets acquired before the marriage will remain separate nonetheless.

The Italian legal environment is very harsh to matrimonial agreements, because they are deemed to be irreconcilable with the principle of matrimonial liberty, which is grounded on article 160 of the Italian Civil Code, forbidding the parties to waive the rights and to renounce the duties, granted to them by the marriage (‘Gli sposi non possono derogare né ai diritti né ai doveri previsti dalla legge per effetto del matrimonio’), and which, so far, has always been confirmed by the Supreme Court of Cassazione (for example, see Cass., 30 January 2017, No 2224).

According to this principle, the parties of a marriage enjoy an absolute freedom to set the terms of their legal separation and of their divorce, at the time when the related agreements are reached: the Supreme Court of Cassazione, therefore, has invariably maintained that agreements concerning the relationship between the parties of a marriage are null and void, if made before the legal separation or the divorce are finalized.

Furthermore, the same principle set by article 160 of the Italian Civil Code means that the possible scope of any agreement, concerning the marital property regime (‘convenzioni matrimoniali’), is very limited, because this kind of agreements, according to the same rule and to article 210 of the Italian Civil Code, may only be used to switch between the regime of ‘separazione dei beni’ (separation of assets) and the regime of ‘comunione dei beni’ (communality of assets), while the actual rules of both regimes may not be changed in any meaningful sense (in particular, the rules of the ‘comunione dei beni’ may be modified only in the direction of further broadening the definition of marital assets, including in the same definition also assets, which would be by themselves separate).

However, all the above remarks do not mean that a matrimonial agreement, made abroad, would be devoid of relevant consequences in the frame of an Italian judgement concerning legal separation or divorce, because, on the one hand, any or all the issues addressed by such an agreement could be subject to the application of a foreign law, under which the agreement should be enforceable, and which the Italian judge should fully apply, provided that the terms of the agreement would not cross the limits set by overriding mandatory provisions, like those related to the protection of the best interest of the children; while, on the other hand, even if Italian law would be applied and, therefore, the agreement would not have binding effects, its terms could still be considered by the court as a strong evidence about the actual positions of the parties, and deeply affect the content of the orders (which, however, must be given respecting the quite strict limits set by Italian law to the powers of the judge – see above under No 11).

Court measures concerning child maintenance usually contain two kinds of provisions:

• on the one hand, rules concerning the sharing of the expenses related to the maintenance of the child (such as school fees, medical expenses etc…), which usually refer to specific regulations set by local guidelines issued at the local court level, which may contain very detailed rules concerning distinguishing the expenses which are meant to be paid directly (or, if anticipated by one of the parents, subject to refund pro quota) from the expenses which are meant to be covered by the monthly allowance;
• orders charging one of the parents an allowance to be paid to the other parent on a usually monthly basis; this allowance, normally, is charged to the parent, who does not live with the children, so to have him share part of the costs which are met directly by the other (such as daily expenses for food and housekeeping), and/or to the financially stronger parties, if the court deems that the unbalance between the means of the parties needs to be redressed.

According to article 337ter of the Italian Civil Code, while issuing financial orders concerning the maintenance of the children, the judge may consider previous agreements privately reached by the parties before the breakdown, but is not bound by them in any way and must consider the following five points:

• the basic needs of the children;
• the financial resources of either parent;
• the time spent by the children with either parent;
• the value of the task performed by either parent in giving care to the children;
• the standard of living of the family.

Finally, if the parties reached an agreement about the financial measures concerning the maintenance of the children after the breakdown and applied for legal separation by consent (‘separazione consensuale’) or for joint divorce (‘divorzio congiunto’), the court would be bound to shape its orders according to these agreements, if they were deemed to be adequate with respect of the best interest of the children; conversely, if this was not the case, the court would have no power to take different measures but could only refuse to issue any order: the unrecognized agreements reached by the parties, therefore, would remain devoid of any binding effect.

Concerning the duration of child maintenance orders, they are supposed to stay in place until the children become fully capable of meeting their own needs autonomously (which means that it is not unusual that children will continue to receive support until they are in their late twenties): the same orders, therefore, as it is the case for spousal maintenance orders, are given on an ongoing base and are subject to be modified or revoked if the circumstances under which they had been granted were to change in a subsequent time; however, especially if the children are due to reach autonomy in the foreseeable future, the issuance of orders by consent according to which the duty to provide support for the children is subject to expire on a set deadline it is not unheard of. Finally, in some cases, courts could also issue orders by consent, according to which parents may discharge their duty to support the children by lump sum payments, or by providing other benefits, such as the ownership of some piece of real estate.

The only measure, other than setting a monthly allowance and dictating how the expenses should be shared, that Italian courts can take with regards to children maintenance is the assignment of the former family house to the parent, or the other party, who will keep with him the children, according to article 337sexies of the Italian Civil Code (‘assegnazione della casa familiare’).

As this measure is aimed at preserving the children ‘habitat’, it should be stressed that it may be issued exclusively with regard to the house where the family actually lived before the breakdown and not to other possible house where they could happen to move afterwards; therefore, if the family house was left voluntarily by the parent who lived with the children, it may not be assigned to him, but he will only be entitled to request a higher money allowance to face the additional costs related to the housing needs of the children. Furthermore, again with the purpose of preserving the children’s dwelling habits, the assignment orders will usually cover the furnishing of the family home.

It should be noted that, while house assignment orders work by transferring the right to dwell in the former family house from the parent to whom this right belonged to the parent with whom the children will keep living, they do not change the nature of the same rights; therefore, if the property of the family house was owned by one of the parent, its assignment to the other will not be subject to any time limit, while, if the house was rented, the assignment will have no impact on the terms of the rental contract, on its duration, or on the obligation to pay the rental fees (which, however, should be still be paid by the parent, to whose name the rental contract originally was).

The already mentioned ‘Legge Cirinnà’ (legge, 20 maggio 2016, No 76), by which same sex union have been recognized (see above under No 7) introduced into the Italian legal system also a specific framework concerning de facto cohabitations (‘convivenze di fatto’), provided that the following requisites are met:

• the cohabitation is established between two adult persons stably united by affective ties as a couple and by mutual moral and material assistance, not bound by kinship, affinity, or adoption, nor by marriage or same sex union (paragraph 36);
• the cohabitation relationship results from the family status certificate (‘stato di famiglia’), following the submission, to the keeper of the registry (‘Ufficiale di Stato Civile’) of the city of residence of the parties, of a ‘personal declaration’, according to which the parties are living together (paragraph 37).

Provided that the Italian legislator seemed to fail noticing that, as the recognition of a ‘de facto cohabitation’ is conditional to the filing of a specific declaration, signed by both parties, the cohabitation, in order to be recognized, must, previously, cease to be ‘de facto’ and that, therefore, true and proper ‘de facto cohabitations’ are still unrecognized, when the abovementioned two requisites are met, the parties of a recognized ‘de facto cohabitation’ have been granted several rights and prerogatives, and namely:

• with regard to personal issues, cohabitants have been granted visiting rights in prison (paragraph 38); the right to be treated as relative for the purposes of visitation, assistance, and health information, when one of the cohabitants is hospitalized or receiving medical care in public or private facilities (paragraph 39), and the right to appoint the other cohabitant as a representative, with regard to decisions concerning health matters and death arrangements (paragraph 40).
• cohabitants have been included in the list of persons who may be appointed by the Court, as ‘tutore’, ‘curatore’, or ‘amministratore di sostegno’ (those three being the possible kinds of guardianship positions, which, according to Italian law, may be enacted for the protection of persons needing assistance, being unable to take care of themselves or to manage their own affairs – paragraph 48);
• with regard to the shared home, the surviving cohabitant has the right to continue living in the house owned by the deceased cohabitant for a set period (paragraph 42), and the right to succeed to the lease contract in the event of the death of the cohabitant in whose name the lease was registered (paragraph 44); however, these rights will be forfeited if the surviving cohabitant leaves the dwelling or enters into a new marriage, same sex union, or ‘de facto cohabitation’ (paragraph 43);
• cohabitants have been granted the same rights as those granted to spouses for the purpose of identifying and quantifying compensable damages in the event of the death of the other cohabitant, caused by a third party’s unlawful conduct (paragraph 49).

However, it must be stressed that, unlike marriage or same sex union de facto cohabitations are almost irrelevant to financial matters, as they do not entail any inheritance right, nor any reciprocal maintenance obligation, with the single exception of a minimum, temporary allowance aimed at fulfilling very basic needs (‘alimenti’), after the end of the cohabitation (see below under No 19).

Further to the recognition of the aforementioned rights, according to paragraphs 50–63, cohabitants may enter into cohabitation agreements (‘contratti di convivenza’), that, on the one hand, must be executed as a public deed or an authenticated private writing before a notary or lawyer, in order to be valid (paragraph 51), and that, on the other hand, need to be registered at the city of residence of the cohabitants in order to be enforceable against third parties (paragraph 52).

Such agreements may regulate residence, economic contributions in relation to each person’s means and professional or domestic work capacity, and the choice of the marital property regime (paragraph 53): it should be noted that the legislator’s decision to allow de facto cohabitants to adopt the ‘comunione dei beni’ regime is somewhat peculiar, given that this same regime applies only to a small minority of married couples in Italy, the vast majority of whom opt for the ‘separazione dei beni’ regime (see above, under No 14).

The ’contratti di convivenza’, though always modifiable (subject to the same formalities required for their creation – paragraph 54), cannot be subject to terms or conditions (any such clauses being deemed not to exist, although they do not invalidate the act – paragraph 56), and are null and void if entered into under circumstances other than those described in paragraph 36, which defines the prerequisites for the application of the de facto cohabitation regime (paragraph 57).

These agreements will cease upon death, or marriage, or same sex unions of the parties, and may be terminated by mutual consent or unilateral withdrawal, provided the same formalities for their creation are observed (paragraph 60). In the case of unilateral withdrawal (paragraph 59), the related declaration must be notified to the other party, granting a period of no less than ninety days for vacating the common residence, if it falls within the exclusive discretion of the party wishing to withdraw from the contract (paragraph 61).

The only possible financial consequence of a recognized ‘de facto cohabitation’ is set out by paragraph 65 of the single article of ‘Legge Cirinnà’ (legge, 20 maggio 2016, No 76), according to which, upon the end of the cohabitation, if one of the former cohabitants happens to be in need and is unable to support himself, he will have the right to receive a limited allowance (‘alimenti’ – alimony), from the other former cohabitant, aimed at enabling him to meet his very basic needs, for a time proportionate to the duration of the cohabitation.

Separated parents retain full responsibility on their children. The treatment of all the issues related to parental responsibility is completely unaffected by the marital or non-marital character of the relationship between the parents and should be ruled only in accordance to the best interest of the children.

From a very broad perspective, in the last years, the principle according to which jurisdiction about all matters related to parental responsibility shall belong to the courts of the Country which is the actual place of living of the children has become more and more widespread and must be considered the general rule applying all over European Union.

It should be noted that, even in very ‘liberal’ legal systems, settlements and agreements concerning parental responsibility are subject to some degree of control by the State: in particular, in the Italian legal system, regardless to the context, any agreement impacting on matters such as custody, visiting rights and children financial support must be approved by a court order or by the public prosecutor office (if the parties availed themselves of ‘negoziazione assistita’ – see below under No 28), and must respect several binding principles like those concerning the right of the children to keep a meaningful relationship with both parents and the duty of both parents to contribute to the maintenance of the children according to their financial means.

Following the breakdown of a relationship, be it marital or non-marital, the arrangements set by court orders should address, in addition to the financial issues related to their maintenance, all aspects of ‘parental responsibility’.

It should be remarked that, in matters related to parental responsibility, while issuing orders exceeding the sole purpose of recognizing agreements already reached by the parties and submitted to them by the way of joint applications (or of not recognizing them, if they are deemed to run against the children’s best interest), Italian courts, being bound only by the purpose of protecting the children, are entitled to dictate all the measures allowed by the law (but not other measures) according to their discretion (‘poteri d’ufficio’) and, therefore, may completely disregard the requests of both parties.

According to Article 316 of the Italian Civil Code, parental responsibility belongs to both parents jointly, and must be exercised by mutual agreement, in pursuance of the best interests of a child, taking into account the child’s personal inclinations and abilities, particularly, but not exclusively, with regard to their preferred habitual residence, and to all decisions concerning education and upbringing.

The broad definition of parental responsibility covers the matters of custody (‘affidamento’); living arrangements (‘collocazione abitativa’) and visiting rights (‘diritti di visita e frequentazione’).

Custody (‘affidamento’), according to the Italian perspective, is the power and the duty, usually belonging to the parents, to make decisions in the best interest of the children. While custody, if possible, should be joint (‘affidamento condiviso’).

In special cases, custody could be given, in full or in part, to one of the parties only (‘affidamento esclusivo’); however, even in this case, all the decisions of specific importance to their children should be taken jointly by both parents. If the parents cannot reach an agreement on any such issue, either of them can ask a judge to intervene. However, before making any decision, the judge must endeavour to steer all parties towards a satisfactory solution.

Finally, for very grave reasons (such as criminal behaviours or serious drug abuse), the court may grant to one of the party a strengthened kind of sole custody (the so called ‘affidamento super-esclusivo’), which will enable the other parent to take also the decision of specific importance without seeking the other parent’s consent.

In any case ‘affidamento esclusivo’ and ‘affidamento super-esclusivo’ decisions are not taken lightly, as it is often deemed preferable to entrust the children to social services (which does not mean in any way that they will be placed in foster care) than to break the equilibrium between the parents, by granting overwhelming powers to one of them. Furthermore, even orders granting custody to one of the parties will usually contain provisions appointing the social workers to monitor the family situation and to take measures aimed at protecting protect and, if possible, at improving the relationship between the children and the other parent.

Living arrangements (‘collocazione abitativa’) is the subject of provisions concerning the placement of the children with both or one of the parents and is independent from custody (therefore, even if custody was joint, a child could be placed in prevalence with one of the parties, or if custody was given to social services, the child could remain to live with the parents). While, nowadays, in principle and if possible, children should be placed in such a way as they spend equal time with either parent (‘collocazione paritaria’), it is still common that they are placed to live in prevalence with one of them (‘collocazione prevalente’). In this case, usually, the right to live in the former family house (but not its property) will be assigned to the parent who will keep with him the children (see above under No 17).

Provisions concerning visiting rights set the periods which the children should spend with the parent not living with them, if they are placed in prevalence with the other parent, and, if they are supposed to spend equal time with either parent, the rules for the sharing of the holydays. While, usually, these provisions contain a clause permitting the parents too agree otherwise, they tend to be quite detailed, unless the children are very close to the age of majority (set at 18 years by Italian law), in which case the parents may agree to dispense with a proper schedule, so that they could see the children freely.

In order to let courts better address these issues, therefore, according to article 473bis.12 of the Italian Civil Procedure Code (recently introduced by the ‘Cartabia reform’), the parties of proceedings concerning children are required to attach to their first statements in defence a parenting plan (‘piano genitoriale’), containing detailed information on their daily habits of living, on schooling, sports, habitual relationships and holidays.

Hearing children in civil proceedings has been mandatory for a long time according to several provisions of law (including the general rules of articles 315bis and 337octies of the Italian Civil Code, concerning custody and visiting rights, which also apply to cases of disputed relocation) introduced into the Italian system for alignment with the principles of the New York convention on the Rights of the Child of 20 November 1989: if children are 12 years old or older, or even under 12 if considered mature enough to have a say, therefore, they should be heard in all judicial proceedings concerning decision involving their lives, unless the court deemed that hearing them would not be in their best interests, or that hearing them it would be redundant, as it usually happens when the parties apply for joint orders.

Furthermore, according to article 473bis.8 of the Italian Civil Procedure Code, a guardian ad litem (‘curatore speciale’), who would act as an attorney for the children and take part in proceedings as an independent party, must be appointed not only in all cases of forfeiture of parental responsibility, or adoption, or when the parents appear unable to represent the best interests of the child, but also whenever a child of 14 years of age so demands and whenever the judge deems the parents to be temporarily unable to represent the child, which, according to interpretation given to the relevant provision by many courts, will be the case whenever the parents disagree on major issues.

Anyway, if the parents disagreed on major issues concerning custody, living arrangements and visiting rights, or if either or both of them claimed that the other was unfit to exercise parental responsibility, according to article 473bis.25 of the Italian Civil Procedure Code, courts may appoint a court expert (‘consulente tecnico di ufficio’), usually a psychologist, who will provide, in writing, a full evaluation of the situation of the family and point out to the measures which seem most likely to ensure that the children’s needs are fulfilled. In this case, each party will have the right to appoint its own expert (‘consulente tecnico di parte’) to assist the court expert.

As an alternative (or in addition) to the appointing of a court expert, according to Article 473bis.27 of the Italian Civil Procedure Code, the judge can also order the intervention of social services to evaluate the family situation by submitting written reports; however, the effectiveness of social workers’ interventions is subject to wide variations, depending on the city where proceedings happen to take place. When evaluating a case, social workers may avail themselves of the help of psychologists, who can be privately hired (but only if the parties agree to face the related costs), or can be employees of public organisations.

In accordance with article 316 of the Italian Civil Code, as with any decision of importance affecting a child, any relocation to another country or any significant move within the borders of Italy requires the agreement of both parents, even if the child is in the sole custody of one parent.

Therefore lacking the consent of one parents, a child’s relocation has to be authorised by the court which, while deciding on a relocation issue, shall evaluate whether a move is in the best interests of the child, by making a balanced assessment of all relevant factors, such as the likely ability of the child to maintain a satisfying relationship with the parent and relatives left behind and the likely ability of the child to adapt to the new situation following relocation.

Once the appropriate proceedings have been followed, all decisions on relocation can be subject to appeal, but will usually be immediately effective. Furthermore, if no agreement is reached on arrangements regarding visiting rights and maintenance obligations, any judicial decision concerning relocation shall contain provisions concerning those matters.

While the enforcement of even domestic orders concerning custody and visiting rights is not very effective and usually takes long time, especially if the behaviour of the party actually disregarding them is not gravely harmful for the children, foreign orders of this kind are readily recognizable, if issued by EU member Country, according to EU regulation No 1111/2019, and if issued by courts of non-EU States, according to other bilateral or multilateral agreement possibly in place, or, lacking them, according to the general provisions of the Italian international private law act (legge, 31 maggio 1995, No 218) and namely to articles 64-67 of the same act.

Provided that, in order to be able to issue a ‘mirror’ order, an Italian court should have jurisdiction on a case concerning children and, at same time, recognize the need to render enforceable in Italy a foreign order, that should have been issued by a foreign authority having jurisdiction on the same case, which is very unlikely to happen, in the Italian system there is very little room for such kind of order; however Italian courts, while dictating measures regarding children, could exercise their discretion also by ‘copying’, in whole or in part, foreign orders concerning children.

Taking a child out of the Italian jurisdiction without the relevant consent referred to in section is illegal, and may constitute a criminal offence under article 574bis of the Italian Penal Code.

Italy is a signatory of the Hague convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Consequently, if a child is abducted from Italy to another signatory country, it is possible to submit to the Italian Central Authority an application for the return of the child according to its provisions.

Furthermore, provided that Italy is a European Union member State, if the child is abducted to another EU country, the implementation of the provisions of the Hague convention will be strengthened by the additional rules set out in Articles 23-29 of Eu regulation 2019/1111 of 25 June 2019 ‘on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction’ and aimed at a further acceleration of the treatment of a return application.

In Italy, any kind of heterologous medically assisted procreation is forbidden; however, according to a June 2016 decision (Cass., 22 giugno 2016, No 12962), the Italian Supreme Court of Cassazione confirmed that, if this is deemed to be in the best interests of the child, a step-child adoption (‘adozione in casi particolari’) can take place within the context of a same-sex relationship (see above under No 7).

National adoption is only open to married couples living together continually for at least three years and thus able to guarantee that the adoptee can rely on the stability of their relationship. The age of the adoptive parents must usually be between 18 and 45 years more than that of the child. It is possible to adopt several children, preferably siblings.

International adoption concerns the adoption by couples resident in Italy of foreign children declared adoptable in their country of origin. The adoption must take place in accordance with the principles set by the Hague convention of 29 May 1993. The process is open to couples who, upon request, have been declared fit to adopt by the juvenile court, and it takes place following complex proceedings held in cooperation with specifically authorised organisations. International adoption has the same effect as national adoption.

While both national and international adoption are legitimating adoption, meaning that the adoptive parents are granted full parental responsibility for the child and all the existing filial ties with the members of the child’s biological family are removed, there is a second kind of adoption that is not legitimating and is referred to, technically, as ‘adoption in specific situations’ (‘adozione in casi particolari’), but, in everyday language, as ‘step-child adoption’.

This latter tool allows for the adoption of a child who has not been declared to be in state of enduring abandonment in specific situations, such as when a child is orphaned by two parents and has been in the custody of relatives or a person to whom they have a stable, long-term relationship, or when one spouse wishes to adopt the biological or adoptive child of the other. However, this kind of adoption requires the agreement of any child older than fourteen and of their biological parents.

Italian Law on same-sex unions does not allow for any kind of adoption; however, as stated above, the Italian Supreme Court of Cassazione opened the ‘adozione in casi particolari’ to the parties od a same-sex relationship (see above under No 26).

Finally, a last kind of adoption (‘adozione di persone maggiori di età’), allows the adoption of persons who already reached the age of majority, on condition that the difference of age between the adoptee and the adopter is no less than 20 years and that the other children and the spouse of the latter give their consent; however, this adoption, which has to be made by a final court order to be issued at the end ordinary (ie non-family) proceedings, does not impact on parenthood or familial relationships, but has the only effect of adding to the adoptee the surname of the adopter and putting the adoptee in the same position of a child of the adopter for all purposes related to inheritance.

The most effective form of non-court dispute resolution available in family law cases is assisted negotiation (‘negoziazione assistita’), that allows the parties to enter in a legal separation, to divorce or to settle issues concerning parental responsibility, on the sole condition that they are assisted by different lawyers (who will certify the genuinity of their signatures and the conformity of the final settlement to overriding mandatory provisions).

However ‘negoziazione assistita’ agreements, on the one hand, bar the parties from availing themselves of a joint lawyer, which is an option allowing to simplify matter and to save cost, when submitting to the court joint petitions for legal separation by consent, for divorce by agreement and for the issuance of orders acknowledging settlements concerning children; and, on the other hand, remain subject to a degree of public control, because, in order to become enforceable, they must be approved by the public prosecutor office (‘pubblico ministero’); in any case, the public prosecutor approval (‘omologazione’) may be refused only if the agreements are deemed to be in contrast to the best interest of the children.

Furthermore, it is possible to apply for legal separation or divorce directly to the keeper of the registry (‘Ufficiale di stato civile’), dispensing entirely with the involvement of judicial authorities and even without the need of seeking any legal assistance; however, this option is available only if there are no children of minor age (nor children, who, having reached the age of majority, are still unable to fully support themselves) and if the settlements reached by the parties do not contain the transfer of any asset.

Finally, especially with the purpose of seeking solution to disagreements concerning custody, visiting rights and, more in general, matters related to parental responsibility, other forms of dispute resolutions (such as ‘mediazione familiare’) are available to the parties involved in family cases (who are often strongly encouraged by judges to avail themselves of these tools); however, even if a settlement was reached in this manner, it would not be binding until orders to that effect would be issued by the court in the frame of ‘normal’ proceedings, or until the agreements so reached would have been made binding according to the rules of ‘negoziazione assistita’.

Unfortunately, family law reform in Italy are, more often than not, dictated by reasons of contingent political opportunity and tend to be put in place, quite hurriedly, when a government feel the need to do something but lacks the financial resources for addressing other issues such as taxes, public health, or the school system; therefore, as reforms tend to be effected almost randomly and with very little deliberation, it is very difficult to foresee which areas they will be going to affect next.

However, likely changes could be as follows:

• a partial recognition of the binding effect of pre- or post-nuptial agreements; however, the introduction of such kind of agreements in the Italian legal system by a law act would be problematic, due to the need to rethink some of the basic principles at the root of the family law system, and may, more likely, be effected by the courts themselves and take the form of a new interpretation of rules already in place;
• the possible abolition of ‘addebito’, which may follow the facts that ‘addebito’ orders, on the one hand, are strongly disliked by courts, entailing a disproportionate lengthening of the duration of proceeding, due to the need to ascertain in some deep the actual behaviours of the parties and their effect on the marital relationship, while, on the other hand, have diminishing practical effects, as, by a series of ruling dating to years 2017 and 2018, the Italian Supreme Court of Cassazione set a clear distinction between the financial allowance grounded on legal separation (which could be greatly affected by ‘addebito’, but would stay in place for a very limited amount of time, being bound to be removed by divorce) and that grounded on divorce (which has been transformed into a kind of exceptional measure and, therefore, in many cases would be denied even if the financial weaker party did not cause the breakdown – see above under No 11);
• the removal of the need to previously enter into a legal separation before applying for divorce: this change would be a natural evolution, on the one hand, of the reduction, to six months only (at least in case of legal separation by consent) of the period of time that should lapse before the application to dissolve a marriage could be filed (which was so shortened by specific reform dating to 2015), and, on the other hand, of the introduction, by the ‘Cartabia reform’ of 2022-23, of the option to start proceedings for both legal separation and divorce together. Those two recent law changes appear, indeed, to have reduced well below the minimum level compatible with common sense the rationale for keeping in place the old rule conditioning divorce to the lapse of a protracted period of legal separation, originally dictated by the first version of the divorce act of 1970 (‘legge, 1° dicembre 1970, No 898), when it was not possible to apply for divorce until five to seven years had lapsed since the legal separation (this period was subsequently reduced to the still substantial one of three years in 1987).

Family proceedings, as almost every other Italian civil judgment, are conducted strictly in private and hearings are closed to any kind of public. Final judgments (‘sentenze’) and other orders (‘ordinanze’ – ‘decreti’) may be made public, but in this case the name of the parties will be referred to only by their initial letters.

Italian law, forbidding, on the one hand, any agreement concerning future inheritances, under the very general provision of article 458 of the Civil Code (‘divieto dei patti successori’), and reserving, on the other hand, preset minimum shares of the inheritance to categories of potential heirs, like children and spouses, leaves very little room for death planning.

The only specific instrument which may be used to that purpose is the family compact (‘patto di famiglia’), a contract, which, according to article 768bis-octies of the Italian Civil Code, has the purpose of regulating the transfer of a business from one generation to another of the same family; however, the rules of the ‘patto di famiglia’ leave much to be desired on the side of clarity and pose heavy conditions and limits to the possible settlements that may be reached: the introduction of this instrument in 2006, therefore, produced at best mixed results, as it must be used with extreme caution.

In the light of all this, the principal tool for death planning in Italy remains the traditional written will (‘testamento’), which is subject to be modified or totally repealed by its maker at any time (and, literally, ‘at will’), and may be used to distribute only a portion of the estate (‘porzione disponibile’), provided that children, spouses and, lacking the former, also ‘ascendenti’ (ie parents or, lacking them, even grandparents) have the right to receive minimum shares of the inheritance (‘quote di legittima’), according to the quotas set by the law.

The most significant remark which can be made on the impact of relationship breakdown on death planning is that, while, on the one hand, legal separation does not break the marital relationship and therefore does not affect the reciprocal rights of the parties with regard to inheritance (unless a final ‘addebito order’ is issued, in which case the party deemed to have caused the breakdown will lose the right to succeed to the other), on the other hand, with the issuance of a final divorce order the same rights will be completely removed, and consequently the former spouses will not be entitled anymore to receive a share of the other’s estate.

However, as it is the case with pre- and postnuptial agreements, inheritance contracts can be recognized by Italian courts if they fall in the field of application of a foreign law according to EU regulation No 650/2012.