Separation and divorce: the news and implications for assets

Lawyer Di Nella, what are the objectives of the Cartabia Reform?

Generally speaking, the objectives of the Reform are to reduce the number of court proceedings and shorten their time when the proceedings before the Court are the only mode of conflict resolution. All of the Reform’s interventions go in this direction, especially for family proceedings, given the provision of a single rite for disputes concerning persons, minors, and families.

What do you mean when you speak of a “single rite”?

Following the recent intervening amendments, Article 3, Paragraph 33 of Legislative Decree 149/2022 in the Code of Civil Procedure provides for a single rite in family law matters for all proceedings, not only under the jurisdiction of the Ordinary Courts but also for those under the jurisdiction of the Juvenile Court and the Guardianship Judge (with some exceptions) with “streamlined” rules and “shortened” terms.

Can you go into more detail?

Precisely, therefore, we will no longer have a different way of dealing with family crises of married couples from that of de facto couples, nor will we have other Judges for the request for child support and the request of cohabitant alimony, for the request of debit and the request of compensation for endo-familial damage. The new and single rite will apply to all the following proceedings:

• Consensual and judicial separation
• Joint and judicial divorce
• Custody proceedings for children born out of wedlock
• Dissolution of civil unions
• Judgments modifying the proceedings mentioned above
• Alimony
• Disputes regarding parental responsibility
• De potestate proceedings and status actions
• Proceedings indicated in Article 38 bis disp. att.
• Proceedings concerning the status and capacity of persons
• Proceedings within the jurisdiction of the tutelary Judge
• Claims for damages connected by object or title to the above proceedings.

The introduction of the single procedure, therefore, will allow a single act to bring several applications that, until yesterday, had different rites and Judges.

What, in your opinion, are the most relevant novelties that characterize this rite?

First of all, there are significant novelties regarding the content the application must have. The application will have to contain not only all the identified data of the parties and a statement of the facts on which the claim is based but also a specific indication of the means of proof to be used and the documents offered in communication.

Thus, it will no longer be permitted to consider whether or not to file “hot” documents at a later date, depending on the other party’s behavior.

The new rite requires that from now on, we “play cards up front,” and the behavior of the party who, about its economic conditions, renders inaccurate or incomplete information or makes documentary productions, is evaluated for the decision.

To this end, the new rite stipulates that in the case of applications for economic aid, many more documents will have to be attached to the appeal than were required to be attached until yesterday.

Specifically:

• the last three tax returns
• bank statements
• financial documents for the last three years relating to accounts in sole and joint names with third parties
• documents showing real estate ownership and registered movable property and company shares.

“Rogues” should be reminded that the Judge, at the outcome of the first appearance hearing, may order supplementation of the documents filed by the parties and order production orders and investigations on income, assets, and actual standard of living, including concerning third parties, using the tax police where necessary.

But that is not all. The situation, then, becomes even more “difficult” when there are minor children: to protect their property interests, the Judge may also order means of evidence outside the limits of admissibility provided by the Civil Code, as long as he guarantees the parties’ right to infer contrary evidence.

This possibility of inquiry is allowed whenever orders are to be issued ordering periodic contributions of sums of money, and in particular to all the different forms of allowance provided for in our system.

Finally, I consider it appropriate to point out that the Reform introduced the possibility:

• even for provisional measures to obtain mortgage registration and seizure of movable and immovable property or credits of the debtor spouse, also as security for the fulfillment of the provisional measures, without having to wait years for the final judgment of the proceedings
• to serve the order in which the measure of the allowance has been determined on third parties required to periodically pay sums of money to the obligor (e.g., the employer), who will thus be obligated to pay the allowance to the spouse, thus protecting the actual payment of maintenance/divorce allowances.

Back to the beginning. You said that the Reform also intervened about timing. In what way?

From the filing of the writ to the setting of the hearing for the spouses’ appearance, no more than 90 days shall elapse, and in case of imminent and irreparable harm or when the convening of the parties could jeopardize its implementation, the Judge, after taking summary information, may issue the necessary orders, fixing, however, in the next 15 days the hearing for confirmation or modification and revocation. The proceedings could close with only one hearing if the attorneys work well.

There is also talk about the possibility of filing for separation and divorce right away? What does that mean?

The Reform has introduced the possibility of introducing the application for divorce in both judicial and consensual separation appeals, thus shortening the proceedings in which several parties are involved despite themselves and avoiding the duplication of investigations, including income investigations.

In any case, the application for divorce will be “taken into consideration” only once the provisional judgment of separation has been obtained and the legal deadlines have elapsed (6 months for consensual and one year for judicial). However, how the courts will handle such applications has yet to be discovered. Indeed, the novelty does not eliminate the separation phase.

We are still far away and not ready to think of divorce as the only form of termination of marital cohabitation.

On paper, so much has been accomplished by this Reform; we need to see how these novelties will be applied in everyday practice.