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The partial sentence of separation


When is it possible to request a partial status sentence in the separation judgment? The Court of Cassation with provision no. 6145/2018 of the VI Civil Section specified that the partial sentence of separation, although the lawsuit then continues for the charge or other rulings, it is justified by the presence of a disaffection and by the spiritual detachment of one of the spouses towards the other which makes coexistence intolerable. The immediate ruling on status allows, according to the Court, to avoid delaying procedural conduct that can negatively affect the rights of one of the parties.

Everything stems from a story that can be defined as very common. The wife had challenged, without positive result, the non-final sentence, which had accepted the request for separation advanced by her husband. In the Supreme Court, the wife complains about the fact that the Court of Appeal had considered admissible the request for a partial sentence (pursuant to Article 151, first paragraph, of the Italian Civil Code) even though the husband had proposed a separation request also with a request for a debit and despite the wife objected to the separation request. According to his wife, the appellate judges based the decision on a causa petendi (first paragraph of article 151 of the civil code) not deduced by the man, who had, instead, based the request for separation exclusively on the alleged violation of the resulting duties from the marriage by the wife.

The total disaffection of the spouse instead justifies the non-definitive sentence of separation, the Cassation had already expressly highlighted how art. 709-bis of the Italian Code of Civil Procedure explicitly establishes, in the matter of immediate ruling on "status", the already deemed equation between the separation procedure between the spouses and that of divorce, wanting to avoid delaying procedural conduct, such as to negatively affect the right of a of the parties to obtain a prompt decision regarding their "status" (see Cass., n. 10484/2012; Cass., n. 20666/2017).

So that the situation of intolerability of coexistence, the College specifies, can depend on the condition of disaffection and spiritual detachment of even one of the spouses.

The Court, according to this orientation, is required to pronounce the non-definitive sentence of dissolution and cessation of the civil effects of the marriage (separation) when the cause is already ripe for the decision as to the status so that the cause can continue on the remaining rulings.

The non-definitive ruling on separation alone constitutes "an instrument for speeding up the process that does not lead to arbitrary discrimination against the economically weaker spouse", the possibility of requesting temporary and urgent measures, pursuant to Law no. . 898 of 1970, art. 4, which can also be modified and revoked by the investigating judge as circumstances change.


Armando Cecatiello, Milan lawyer.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.