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The separation can take place by judicial or mutual agreement, on the basis that it is attested by verdict by the judicial body or is the subject of consortia consent validated by the judicial authority. It is noted here that the theme of separation (and divorce) has recently been significantly innovated by Law dated 8 February 2006 n. 54, which introduced the concepts of bi-parenting and participatory assignment. 2) Separation by judicial process.
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According to the provisions of art. 151 cc, "legal separation can be requested if they exist, even irrespective of the desire of one or both spouses, behaviors that make the continuation of life in common or that cause heavy foreclosure to the formation of children unsustainable" .
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Therefore, legal separation is often caused by the unbearability of life in common, and the legislation does not state typical conditions or particular attitudes, since the verification of the validity of conduct that can legitimize the separation is conferred to the judicial body.
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First, the unbearability of life in common can derive from the heavy and constant failure to comply with the burdens arising from marriage, or from attitudes that are antithetical to the burden of loyalty or are detrimental to the respectability of the spouse, the decorum or physical rectitude or mental can justify the separation request, since the marriage union obliges each consort to honor the subjectivity of the other.
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At the trial level, judicial separation initiates a more complicated and distinct dispute procedure in relation to the quicker and easier procedure of separation by mutual agreement. 3) Separation by mutual agreement.
The agreed separation derives from an agreement between the consorts that is subsequently validated by the judicial body.
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It is regulated by the art. 158 cc, and although the determination of the consorts to obtain the separation generally finds its legitimating reason in the unsustainability of the life in common, this factor does not represent in this regard a fundamental requirement, where what is highlighted is the intention of the consorts of invalidate the marriage union, dictating the constraints of their separation themselves.
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Therefore, with the separation of a common agreement, the consortium establishes rules regarding the profile of the patrimony, such as the subsistence allowance and the right of domicile in the marital home, as well as the fostering of minors, if they are present.
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In this regard, the art. 158 c.c. gives the magistrate validation the right to examine and ascertain the compliance of the rules included in the separation document with the benefits of minors; if the judicial body shows a contradiction, it asks the spouses to elaborate the most appropriate variations and, in the event of an incorrect decision, can reject the approval.
So, in order not to run into mistakes or omissions that could push the magistrate to reject the approval of the separation action, it is recommended to resort to the indications of a lawyer specializing in this field, who in the preparation of the request can provide to the consortium suitable opinions and specialized sectorial support.
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The law firm provides legal support and protection in the event of divorce. This part presents a simple summary for those who want more details about this sector.
Divorce. Legal protection in the hypothesis of divorce Pursuant to art. 149 of the Civil Code, the marriage union is dismantled or with the death of one of the spouses or with the divorce proceeding, which has been included in our legislation by Law n. 898 of 1970, later amended by Law n. 74 of 1987.
Commonly, we are inclined to be convinced that the divorce can be claimed only in the hypothesis in which the period expected from the legislation has passed from the date of the decision of the separation.