The Cartabia reform introduced important changes that also affected proceedings concerning persons, children and family.
One of the novelties is that in the introductory acts of legal separation proceedings, the parties may also propose a request for dissolution or cessation of the civil effects of marriage (the latter may be proceeded with after the time limit laid down by law and after the separation judgment has become final).
This is a revolutionary innovation that allows the spouses to propose both applications in the same proceedings, saving procedural energy, in view of the fact that certain applications (as well as the relevant findings) would be common to both proceedings (e.g. the assignment of the home, the placement of children and the determination of the contribution to child support). This faculty has been indicated in Art. 473 bis-49 (which refers to contentious proceedings) whereas it is not expressly referred to in Art. 473 bis-51 (relating to proceedings on joint application).
In the immediate aftermath of the reform’s entry into force, the Courts took different orientations, concluding in some cases for the admissibility of the joint application and in others for the rejection of the application. In particular, the Court of Milan, upon the filing of a petition for separation by mutual consent with the simultaneous request for the pronouncement of divorce, by a judgment filed on 5 May 2023, declared the personal separation of the spouses by approving the conditions agreed upon by them (on the custody of the children and their maintenance) and remitted the case to the court for the subsequent pronouncement of the divorce judgment, after the six-month period provided for by law (the period commencing from the filing of the written notes in which the parties confirmed their intention to separate).
The Court ruled that, once the aforementioned term had expired (and the judgment had become final), the Judge would simply have to obtain a further declaration signed by the parties confirming that they wished to obtain a divorce on the conditions set out in the petition. Other Courts, such as Genoa, Vercelli and Lamezia Terme, have adhered to this orientation, whereas the Courts of Bari, Florence and Padua, among others, have expressed a contrary opinion.
Faced with the difficulty of interpretation, the matter was submitted to the Court of Cassation which, with judgment No. 28727 of 16 October 2023, held that the cumulation of separation and divorce applications was admissible also in joint proceedings.
The ruling of legitimacy, stated that: “from a systematic point of view, with reference to the general principles, there are no obstacles to the admissibility of cumulation also with reference to joint separation and divorce applications: the processing of the joint divorce application will be conditional on the approval (by a final judgment) of the separation by mutual consent, in addition to the passing of the minimum separation period (six months) provided by law”.
Moreover, the Supreme Court in interpreting the rule and in view of the ratio of the reform itself, concluded that: “finding between the parties, in the face of the irreversibility of the matrimonial crisis, in a single venue.
An overall agreement on both the separation and divorce conditions, concentrating in a single appeal the outcome of the negotiation of the overall management modalities of such crisis, regulating once and for all the economic and property relations between them and the relations between each of them and the minor or adult children who are not yet self-sufficient, undoubtedly achieves a <<savings of procedural energies>> that may induce them to resort to the aforementioned cumulation of joint applications”.
The advisability of having recourse to the filing of both applications must be assessed on a case-by-case basis and may prove to be advantageous both where the situation is such as to lead to the belief that the conditions would remain unchanged in the divorce proceedings and where the parties were to establish in advance a modification of the conditions in the divorce proceedings in view, for example, of the subsequent definition of their economic and matrimonial relationships.
Lastly, it should be pointed out that, as stated in the aforementioned judgment of the Court of Milan, “the unilateral modification of the conditions will be deemed admissible only in the presence of the assessment of new facts”; therefore, where the situation of one or both parties changes in the meantime and the conditions initially agreed upon are not confirmed, the parties will necessarily have to reach a new agreement allowing them to deposit new conditions
