Sometimes, even after years of legal battles and furious quarrels, separated spouses decide to reconcile and resume coexistence.
Many ask how to do when there is a provision of the Court and the record in the civil status records of separation.
Reconciliation, whose current discipline is contained in the civil code, consists in the restoration of the family consortium through the reconstitution not only of material communion, but also of that spiritual union between spouses, which is at the basis of cohabitation itself.
The essential element for reconciliation is the animus conciliandi, that is not only the resumption of cohabitation with a continuity character, but also the desire to forgive any possible wrongdoing, to forget the past, to rebuild the marriage.
It is not enough for the effects of separation to decay the only cohabitation, during which, however, the spouses behave like strangers, sleeping, for example, in separate rooms or eating divided dinners.
Nor is it sufficient to stop the effects of separation from the so-called limited time trial period and ended negatively, through which the spouses intended to experiment a possible resumption of cohabitation.
In order for the effects of reconciliation to be produced, a mere verbal declaration of the spouses is not sufficient, but it is necessary that the union be restored with a renewed spirit of mutual solidarity. Reconciliation in fact requires an effective resumption of conjugal cohabitation accompanied by a stable functional cohabitation to restore the affectio maritalis.
Spiritual communion should be understood as the desire to reserve once again the position of an exclusive partner in life and to fulfill conjugal duties to the reconciled spouse.
In order for reconciliation to have legal effects, it is therefore necessary to reconstitute those circumstances which indicate the intention of the spouses to cancel the state of separation.
When reconciliation occurs, the spouses may, by common consent, cease the effects of the separation sentence or of the approval of the consensual separation, without the need for the intervention of the judge. Reconciliation can in fact derive from an «express declaration by the spouses» or from «unequivocal behavior incompatible with the state of separation».
From a patrimonial point of view reconciliation overwhelms the effects of separation: the peace between the spouses determines the automatic replenishment of the legal communion, without prejudice to the acts carried out during the period of separation.
But what if the reconciled spouses intend to separate again? The law provides that a new separation (both judicial and consensual approved) can be pronounced only in relation to new facts and behaviors, after reconciliation and this is motivated by the fact that reconciliation involves a serious assessment of the possibility of replenishing the unit family on the basis of an established breach and it is necessary to make that decision an irrelevance of the entire precedence and request, for the purposes of a further separation decision, that the same derives from behaviors and facts subsequent to reconciliation.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.