Consensual divorce in Italy

To start a joint divorce application, it is necessary that the spouses agree on all the main issues. This includes, for example, the division of assets accumulated during the marriage, child custody and the definition of maintenance. Such agreements must be formalised and made compatible with the applicable legislation.

The Rome III Regulation allows the spouses to choose the law to apply among a series of options established by the legislation. They may, for example, decide to adopt the law of the country in which they habitually reside at the time of the agreement. Alternatively, they may opt for the law of the country in which they had their last common residence, on condition that one of the two still resides there. Another possibility is to select the law of the country of citizenship of one of the spouses. Finally, they may choose to apply the law of the forum, that is to say that of the country in which they intend to start the proceeding.

This possibility of choice offers flexibility and allows the spouses to adopt the solution most suited to their personal and legal needs. However, any choice must comply with the public policy principles of the competent country, in order to avoid the proceeding being invalidated.

To start a procedure of international consensual divorce, it is essential to follow a series of precise steps, especially in relation to the necessary documentation, which must comply with the regulations both of the country of residence and of the one where the marriage was celebrated. Documentation represents one of the most relevant aspects, since it ensures the legitimacy of the proceeding and the correct application of international laws.

An indispensable document is the marriage certificate, which attests to the existence of the marital bond and to its legal validity. When the certificate has been issued by a foreign authority, it may be necessary to subject it to an official translation made by an accredited translator. In some cases, such translation must be certified at specific bodies or consular offices. Furthermore, the legalisation of the certificate is required, which can take place through the issuing of the apostille, provided for by the 1961 Hague Convention for adhering countries. In non-adhering countries, legalisation must be carried out at the competent embassies or consulates, following the rules of private international law.

Another indispensable element concerns the identity documents of both spouses, such as passports, identity cards or residence permits. These documents serve to verify the nationality and the actual or habitual residence of the spouses. The verification of residence is particularly relevant for establishing which jurisdiction is competent and which law must be applied to the divorce proceeding. In international contexts, in fact, the choice of jurisdiction can significantly influence the conditions and outcomes of the divorce.

A further crucial aspect is represented by property and family agreements, which must be drafted in a clear and detailed manner to avoid possible disputes. Agreements relating to the division of assets must specify with precision the distribution of the common patrimony, which may include real estate, bank accounts, shares or other financial assets. As regards the children, custody agreements must define the regime of legal and physical custody, the visitation arrangements for the non-custodial parent, and every detail concerning their education, health and well-being. Furthermore, it is necessary to establish the conditions for the possible payment of a maintenance allowance, both for the children and for one of the spouses, taking into account the economic capacities of the parties and the needs of the beneficiaries.

The regulatory compliance of such agreements is essential, since they must respect the laws applicable in the various legal systems involved. This verification often requires the support of lawyers experienced in international family law, who guarantee that the agreements do not violate non-derogable principles of the relevant national legislation. In addition to regulatory compliance, it is important that the agreements be drafted in a way that avoids ambiguities or interpretative conflicts.

Another relevant consideration is that relating to jurisdiction, that is to say territorial competence for divorce, which can depend on the habitual residence of one of the spouses or on their common nationality. This aspect can influence both the times and the costs of the proceeding, especially when the countries involved adopt different approaches to consensual divorce. For example, some countries require mandatory mediation or further formalities before granting divorce.

Finally, as regards minor children, decisions taken in the context of the divorce must respect the principle of the higher interest of the minor. This principle, recognised at international level by the United Nations Convention on the Rights of the Child, implies that the choices on custody and maintenance be oriented to ensuring the maximum physical, psychological and social well-being of the minors involved.

To successfully address an international consensual divorce it is necessary to carefully prepare the documentation and to ensure that all the agreements are compliant with the applicable regulations. The advice of qualified professionals can be decisive in reducing the risks of disputes and in ensuring respect for the decisions taken by the parties.

International consensual divorce entails expenses that can vary considerably based on various factors, including the complexity of the case, the jurisdictions involved and the need for specific legal consultations. Among the most common costs are the expenses for sworn translations and legalisations of the required documents, such as marriage certificates or divorce judgments issued abroad. Furthermore, the assistance of an experienced lawyer for international divorce is essential to ensure that the procedures are carried out in conformity with international and national regulations, avoiding costly procedural errors.

Another aspect that influences the costs of international divorce is the need to address issues relating to the division of assets or to child custody, which may require appraisals or specific agreements. No less important, in cases involving multiple jurisdictions, consultations with lawyers from other countries may be necessary to understand the local regulations and adapt the legal strategy.

As regards the times for international divorce, the duration of the proceeding depends on the complexity of the agreements between the spouses and on the jurisdiction involved. For example, if the spouses choose an applicable law that does not require the obligatory passage of personal separation, the times can be reduced significantly. However, in the absence of a consensual agreement, the procedure could be prolonged, especially if minors or property assets of particular relevance are involved. Cooperation between the parties is a determining element to accelerate the process and reduce expenses.

A practical example concerns a couple residing in Italy, but with real estate assets in France and one of the spouses a British citizen. In this case, the involvement of different jurisdictions and property regulations can prolong the times, but with the support of a specialised international divorce law firm, it is possible to find solutions that limit the complications.