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The Law Firm carries out legal support and legal advice in cases of separation procedures. Please contact our office if you need information on these procedures or problems. 1) Individual separation.
Granting legal opinions during the separation phase Personal separation is governed by Articles 150-158 of the Civil Code, and determines in the first place the ineffectiveness of the reciprocal duties of the spouses (duty of cohabitation, sincerity and collaboration), except for the obligations of mutual assistance and support, in force and valid even in case of separation.
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The first important consequence of personal separation is the termination of cohabitation between the consorts, however the return to cohabitation, without any particular agreement on the matter, constitutes the annulment of the effects of separation: based on the direct reference of art. 154 cc, "the reconciliation of the spouses produces the invalidation of the previously applied personal separation", and this happens because the separation, unlike the divorce, does not produce conclusive effects and does not constitute any denial for the consortium who want to reconstitute your own family.
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The separation can be judicial or consensual: in the first case it is established by the sentence of the judge, in the second are the spouses who come to an agreement later recognized by the judge. Other fundamental innovations in terms of separation (and divorce) were introduced by Law 8 February 2006 n. 54, which introduced the concept of bi-parenting and participated custody. 2) Judicial separation.
According to the art. 151 of the Code of Civil Procedure, "the request for judicial separation may be made when there are conduct that determines the intolerability of the common life or which causes serious complications for the education of the children, regardless of the will of the other spouse". Therefore, judicial separation almost always derives from the fact of not being able to tolerate the common life, generally considered, also because the law does not fix any specific circumstances or a specific conduct of the spouse, as it is the judge who must ascertain the reliability attitudes that may be due to the request for separation.
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First of all, the lack of tolerance of the common life can be due to the continuous and burdensome breach of the duties proper to marriage, or from a conduct contrary to the duty to be sincere, or from behaviors that damage the dignity of the spouse, his behavior or physical or mental integrity.
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The aforementioned attitudes can legitimize the request for separation, because one of the foundations of marriage is precisely the mutual respect of the personality of the other.
With judicial separation a process is undertaken that is much more difficult and different from that of consensual separation, which is easier and more immediate.
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The consensual separation is undertaken with an agreement between the spouses and is made valid by the competent judge. Such separation is governed by art. 158 cc, and even if the same highlights and represents the unsustainability of married life, this does not appear to be a fundamental premise, since the element that the validation is given by the will of the spouses to annul the marriage, establishing themselves the constraints of their separation.
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With the consensual separation, therefore, the spouses dictate certain constraints both in virtue of the patrimony, as the right of maintenance and residence in the matrimonial domicile, by virtue of the assignment of minor children, if there are any.
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In this sense, art. 158 c.c. the competent judge has the right to analyze and verify the validity of the regulations, included in the deed of separation, to the interests of minors; if the same person ascertains that there are contradictory elements, he asks the spouses to make changes to them and, if a resolution is not reached, he can refuse such a separation.