The Separation
The separation of the spouses is an institution regulated by the rules of the Civil Code (Articles 150 et seq.) From the Code of Civil Procedure and a series of special rules.
The separation does not terminate the marriage, nor does it fail the legal status of a spouse. Affects only some of the effects of their marriage (it melts the joint estate of the goods shall terminate the obligations of fidelity and cohabitation). Other effects, however, residues, but they are limited or regulated in a specific way (the duty to contribute in the interests of family, duty to keep the weaker spouse and duty to maintain, educate and educate their offspring).
Unlike the past, it can be stated for the separation of objective factors, that is, regardless of fault of one spouse. You possible that the couple separate because external events hindering the couple, because unforeseen circumstances arise, or expected, at the time of the marriage, because we realize the existence of an incompatibility unsurpassed character and, in general, for all those facts, using the expression of the legislature, "render intolerable the continued cohabitation or severely restrain the education of children" (art. 151, 1st co. cc).
separation, unlike divorce , also temporary, so that you can be reconciled, without formalities, by shutting down the effects of the itself (art. 154 cc). To make formal reconciliation, in addition to a judicial determination, it is possible for spouses to go to the Town Hall to issue a special declaration.
may be that the spouses decide to stop living together informally (without recourse to a court to do so), by creating the so-called de facto separation, (husband and wife live together or in different homes, but each dealing with its own destiny , dissociating himself from the other). The de facto separation has no effect on the legal front, nor is it sufficient to effect a period of three years to reach a divorce. Moreover, although the de facto separation is not sanctioned by any measure of the court, the removal of one spouse from the house or family for the establishment of extra-marital relations could be a reason for the charge separation in the case of judicial separation .
Unlike the de facto separation, legal separation effects affecting personal and property relations between husband and wife and between parents and children. Among the main areas where changes occur in the legal situation include: the
property matters relating to community and property owned jointly, and inheritance rights
the right to maintenance to the former spouse
law food for the former spouse
's allocation of the family house
' s custody of the children and keeping them . legal separation of the spouses can be consensual or judicial .
consensual separation is the legal institution through which husband and wife, by common agreement among themselves, split up.
consensual separation is not possible in the absence of an agreement between the spouses which invests each question (property rights, maintenance of the spouse weak, visiting rights and maintenance of children, allocation of marital home).
consensual separation begins with the filing of Appeal, which in almost all courts may also take place without the assistance of an attorney (for more information, visit the pages on the online service separation ).
hearing to be fixed before the presiding judge, the spouses must appear in person for the mandatory settlement. The presiding judge may adopt any measures it considers necessary and urgent. It is from this date to begin a period of three years to qualify for the divorce.
Thereafter, if the agreements are considered to be equitable and not prejudicial to the spouses and especially their children, the court has to grant a decree conditions (Decree of approval), thus leading to the separation of law.
The conditions set out in the consensual separation can still be modified or withdrawn take action if new facts which change the situation of one spouse or the relationship with their children.
the judicial separation is invoked in cases where there is no agreement between the spouses and can not reach a consensual separation . The legal separation may then also required to be one of the two spouses.
In the case of judicial separation is also possible to request the charge separation, ie the finding that there has been a breach of obligations arising from the marriage (fidelity, cohabitation, care of children, etc..) by one spouse and that this breach has led to the termination (for further information on liability judgments of separation). In cases where the charge is recognized by the court against one of the spouses, they do not have the right to obtain child support and has lost most of succession rights.
The first hearing of the proceedings requires the personal appearance of the spouses before the presiding judge and is in the same way the separation agreement. Even in the case of judicial separation, the presiding judge may, at this stage, to take the porvvedimenti necessary and urgent to protect the weaker spouse and offspring. Thereafter, the proceedings are conducted according to the forms of the ordinary and the order issued at the end has the form of an award.
is also given the opportunity to immediately declare the separation between the spouses, the sentence is not already in the final result at the first hearing, so you can then follow the procedure only to decide the controversy. This allows you to request a divorce even before the final ruling ruling and govern the relationship between husband and wife.
If you start a legal separation that, even during the proceedings, can be transformed into consensual separation . It can not happen the other way, and must start a new procedure.
The conditions set out in the judicial separation can still be modified or withdrawn take action if new facts which change the situation of one spouse or the relationship with their children.
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