Separation and divorce in a single document: the Court of Cassation clarifies that it can also be done in the event of an agreement and opens up to marital agreements

Pa few days ago the Court of Cassation, with sentence no. 28727 published on 16 October 2023, decided that even spouses who do not want to argue will be able to separate and divorce with a single consensual act, thus avoiding the costs and time of two different judgements.

The sentence was welcomed by everyone as a real “turning point”, “an easy divorce is coming”, it was said. But the Cartabia Reform, which came into force on 1 March 2023, had already provided for the possibility of requesting separation and divorce with the same document. The entire Cartabia Reform, in fact, is oriented towards the objective of “saving procedural energy” and accelerating the time of judgments.

What changes, then? Much ado about nothing?

The fact is that, following the entry into force of the Reformation, some courts, such as Florence and Treviso, have applied the new law only to contentious judgementsthat is, to be clear, those in which the spouses argue.

Instead, other more “enlightened” courts, including the Court of Milan and that of Genoa, have extensively applied the new procedure also to joint proceedings, i.e. those in which the spouses have reached an agreement on the conditions of the separation and those of their future divorce. According to this latter orientation, it was illogical to think that only the most contentious spouses could access a single, simpler and faster separation and divorce procedure, while the “virtuous” ones, who had reached an agreement, could not have a similar possibility, having to instead continue to submit to the old yoke of the two distinct procedures, that of separation and that of divorce, with duplication of costs and extension of the time necessary to obtain freedom of state.

In the interpretative conflict, the Court of Treviso submitted the question to the Court of Cassationwho decided to follow the orientation of the Court of Milan by clarifying that the Reform must be applied without distinction to all spouses who intend to separate and divorce, it being absurd and paradoxical that the State penalizes precisely those citizens who, by finding agreements between them, lighten the Judges’ workload and facilitate the resolution of family conflicts.

So, today too Spouses who choose the consensual path, in whatever Court of Italy they find themselves in, will be able to file a single appeal with the conditions of separation and divorce, paying a single tax and not having to go back to the lawyers to renegotiate the conditions of the agreement between separation and divorce.

Once the unitary appeal has been filed, the separation hearing is scheduled and then, automatically, the divorce hearing and the Court, in both cases, limits itself to implementing the agreements between the spouses, checking only that they are not in conflict with the interest of minor children.

This does not mean that in Italy divorce can be achieved directly (as happens in most European countries), as separation remains a step necessary and, in any case, even in the event of an agreement, the legal period of 6 months must elapse between separation and divorce (extended to 12 months for those who argue).

But the real news is that this ruling clearly states the validity of the agreements made with legal assistance at the time of separation and in view of the divorce.

Therefore, today we can no longer doubt the validity of matrimonial agreements (signed during the marriage) and prenuptial agreements (signed before the wedding): if, in fact, as the Court of Cassation decreed, spouses can decide the conditions of their future divorce when they are separating and, therefore, when the marriage is in crisis, why couldn’t they do it before getting married or even during the marriage, when there is love and harmony between them?

Prenuptial agreements are not prohibited by law and today even the Court of Cassation is telling us that in Italy the “role of the autonomy of the spouses in defining the economic consequences of the marital crisis, in the constant process of privatization of the marital regime”a process that has already begun with the introduction, in 2014, of assisted negotiation, i.e. the possibility for spouses to separate and divorce with their respective lawyers without even going to court.

Much ado about something then! Hurray!

We are at the beginning of a great change: we must overcome the obstacles that jurisprudence has so far placed on the path to the recognition of agreements.

Why “without deviation from the norm, progress is not possible” (Frank Zappa)..