di Marco Calabrese
(Legislative Decree 31.10.2024 No. 164 effective November 26, 2024)
In many jurisdictions, a divorce court will also provide for the division of marital property.
In the UK for example, there is a distinction between Decree Absolute and Ancillary Relief (the latter provides on economic matters, such as maintenance, or lump sum payments or the division of marital property): however, all these decisions are issued by a UK Family Court, albeit at different times.
In the U.S. on the other hand, all disputes between spouses are generally settled by a Final Divorce Order, which -in addition to ending the marriage- also provides for the alimonies, the Child support, the division of assets and all financial matters.
In Italy, this is not the case.
It should be remembered that in our Country the decision to separate assets, from Day-One of the matrimonial life, is by far the most common because of the tax advantages it offers (more than 70 percent of married couples resort to it).
So, therefore: in the event of a divorce in Italy, alimony/maintenance of spouse and children will be decided by one Court through the Family Law Proceedings, while the division of possible assets of the couple will require a subsequent judgment entrusted to a different judge (i.e. an ordinary civil court).
This can be poorly understood by international clients who are not prepared to first deal with a divorce judgment and subsequently with a second judgment for the division of marital property, if and when these are existing.
I am not personally aware of any experienced lawyer who mixed divorce and division of assets, but -in case this ever occurred to you- the new Article 473bis of the Code of Civil Procedure points out that the unitary procedure in matters of persons, juveniles and family also applies to applications for compensation for damages resulting from breach of family duties. However, the proceedings for the dissolution of community property between spouses remain excluded. These latter will follow the ordinary procedure as it happens for the dissolution of the joint ownership and heirship
“Literally: Article 473 bis c.p.c. – scope of application. Paragraph 1 is partially amended by supplementing it as follows “The provisions of this title shall apply to proceedings concerning the status of the persons, minors and families attributed to the jurisdiction of the ordinary court, the tutelary judge and the juvenile court as well as claims for damages resulting from violation of family duties, unless the law provides otherwise. In any case, proceedings for the dissolution of legal community, those aimed at the declaration of adoptability, those for the adoption of minors of age and those attributed to the jurisdiction of the specialized sections on immigration, international protection and free movement of citizens of the European Union are excluded.”
