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legal separation lawyers in Italy by mutual consent is a deed prepared by both spouses by drawing up an agreement setting out in detail all the financial and personal consequences.

Separation usually precedes divorce, although it is common for some couples, even when separated, to decide not to dissolve the marriage.

Furthermore, separation does not end the marriage and the status of the spouses is not lost. However, the spouses are no longer obliged to live together and to be faithful to each other.

Judicial separation is the separation pronounced by a court to which one or both spouses have appealed in all cases in which circumstances arise which make the continuation of their cohabitation intolerable.

Art. 151 of the Civil Code states: “Separation may be requested when, even independently of the will of one or both spouses, circumstances have arisen which make it intolerable for them to continue to live together or which are likely to cause serious harm to the upbringing of their children.

The judge who declares the separation shall state, if the circumstances exist and it is necessary, which of the spouses is to be held responsible for the separation, taking into account his or her behaviour contrary to the obligations arising from the marriage”.

The Judge, in defining with judgment the judicial or consensual separation / divorce procedures of the spouses, also takes into account the economic conditions of the same in order to establish the amount of the economic contribution that one of the spouses will eventually be obliged to pay to the other as maintenance of self and / or of the non self-sufficient offspring.

However, what is established by the judge is always adjustable later – even after the final judgment of separation / divorce – if there are justified reasons for revising the economic provisions.

For example, justified reasons mean unforeseen circumstances at the time of the sentence that may concern hypotheses such as the loss of one of the spouses’ job, the birth of another child or a change in peius of the overall economic condition of the obliged spouse.

The schedule for a judicial redetermination that takes into account the new circumstances varies according to the degree of conflict between the parties. On average, the Court of Bologna decides, in the event of a consensual change to the maintenance allowance, in about 4-5 months; in the case of upper conflict and with a judicial procedure, the timeframe can increase considerably, in about 13-17 months.

Italian law provides that the separation of spouses has a mandatory and an eventual content. The obligatory content concerns the mutual authorization to live separately, the custody of the children, the assignment of the family house and, if the conditions are fulfilled, the maintenance allowance granting in favor of the economically weaker spouse and her/his children.

Article 5 paragraph 6 of Law no. 898 of 1970 so-called “Divorce Law” provides that the Judge, with the sentence, decides whether one of the spouses should give to the other one a periodic allowance when the “weaker” spouse does not have adequate means or cannot obtain them for objective reasons.

This matter was the subject of a heated debate following the latest sentence in the United Chambers of the Supreme Court (n. 18287/2018) which re-established the lines of the check’s granting.

Generally the maintenance allowance is up to the economically weaker spouse as long as:

• There is a clear economic disparity between the two spouses;
• The weaker spouse does not have his own income, which allows him to maintain a standard of living similar to the previous one;
• The separation is not charged to him.

The articles 147 and 148 of the Civil Code require both spouses to maintain and educate their children, according to their natural inclinations and aspirations. The aforementioned obligations do not cease following the personal separation of the spouses or divorce; in such cases, parents have the duty as well as the obligation to keep their children, both minors and adults, in proportion to their income.

The criteria for determining the grant must take account of the circumstances established by law and that is:

• The current needs of the child (minor or adult, but not self-sufficient);
• The standard of living enjoyed by the child in coexistence with both parents;
• Time spent with each parent;
• The economic resources of both parents;
• The economic value of the domestic and care tasks undertaken by each parent.