In order to be able to apply for a divorce in our legal system, the spouses must be separated.
However, there are cases in which it is possible to directly obtain a divorce sentence without first proceeding with separation.
The causes provided for by art. 3 of the divorce law (L. 898/1970)
These are mandatory hypotheses, let's see what:
1) after the celebration of the marriage, the other spouse was sentenced with a final judgment, also for acts previously committed:
•to life imprisonment or a sentence of more than fifteen years, even with more sentences, for one or more non-culpable crimes, excluding political crimes and those committed for reasons of particular moral and social value;
• to any reported custodial sentence for the crime of incest, of rape, of acts of violent libido, of rats for the purpose of libido and of the rat of persons less than fourteen or infirm, for the purpose of marriage, or for induction, compulsion, exploitation or aiding of prostitution for any conviction reported and regardless of the subjective quality of the injured person;
•to any penalty for a child's voluntary homicide or by attempted murder to the detriment of the spouse or a child;
•to any custodial sentence , with two or more convictions, for crimes of injury, when the aggravating circumstance referred to in the second paragraph of art. 583 if the fact produces the permanent weakening of a sense or an organ), and in artt. 570 (violation of the obligations of family assistance), 572 (mistreatment in the family or towards children) and 643 (circumvention of incapacitated persons) of the Italian Criminal Code, to the detriment of the spouse or a child (Article 3, No. 1 letter d) of the law n. 898/1970. When these hypotheses occur, the judge competent to pronounce the dissolution or the cessation of the civil effects of the marriage ascertains, also in consideration of the subsequent behavior of the defendant, his inability to maintain or restore family cohabitation. Even in the presence of a final conviction for the crimes indicated above, the application cannot be proposed by the spouse who has been convicted of complicity in the crime or when the conjugal cohabitation is resumed.
2) when the other spouse has been acquitted of total vice of mind from crimes of incest, rape, acts of violent lust, rape for the purpose of lust, rape of persons under the age of fourteen or infirm for the purpose of marriage, induction, coercion, exploitation or aiding and abetting of prostitution, voluntary murder of the child or attempted murder of the spouse or child referred to in lett. b) and c) of n. 1) of art. 3 of Law 898/1970, and the judge competent to pronounce the dissolution or cessation of the civil effects of the marriage ascertains the inability of the defendant to maintain or restore family cohabitation (art. 3, n.2 lett. A) egge n. 898/1970);
3) the criminal proceedings promoted for the crimes foreseen by the lett. b) (incest, rape, acts of violent lust, rape for the purpose of lust, rape of persons under the age of fourteen or the infirm, for the purpose of marriage, induction, coercion, exploitation or aiding and abetting of prostitution) and c) (voluntary murder of the child or for attempted murder of the spouse or child) of no. 1) of art. 3 of Law 898/1970 concluded with a sentence of not having to proceed for extinction of the crime, when the judge competent to pronounce the dissolution or cessation of the civil effects of the marriage believes that the constitutive elements and conditions of punishment of the crimes themselves (art. 3, n.2, lett. c) law n. 898/1970);
4) the criminal proceeding for incest ended with a sentence of acquittal or acquittal that states that the event is not punishable due to lack of public scandal (Article 3, No. 2, letter d) 8898 / 1970 law;
5) has been pronounced with a final sentence ruling the judicial separation between the spouses, or the consensual separation was approved that is, a de facto separation took place when the de facto separation began at least two years before 18 December 1970 (Article 3, No. 2, letter b) 898 / 1970 law.
6) the other spouse, a foreign citizen, has obtained the annulment or dissolution of the marriage abroad or has contracted a new marriage abroad (Article 3, No. 2, letter e) of Law no. 898/1970);
7)marriage has not been consummated(Article 3, n.2, letter f) law n. 898 / 1970);
8) has passed the sentence of rectification of assignment of sex according to the law 14 April 1982, n. 164 (Article 3, n.2, letter g) law n. 898 / 1970).
Apart from the aforementioned cases, the Italian legal system provides that in order to obtain the termination of the civil effects of the concordat marriage or the dissolution of the marriage, legal separation is first necessary.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.