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THE PARTIAL JUDGMENT OF SEPARATION

WHEN AN IMMEDIATE JUDGMENT ON THE STATUS IS POSSIBLE?

When can the partial ruling on status be applied for in the separation judgment? The Court of Cassation with the provision n. 6145 / 2018 of the VI Civil Section has specified that the partial sentence of separation, in spite of the fact that the case continued for the charge or for other rulings, it is justified by the presence of a disaffection and by the spiritual detachment of one of the spouses towards the other that makes the cohabitation intolerable. The immediate ruling on the status allows, according to the Court, to avoid delayed procedural conduct that may adversely affect the rights of one of the parties.

Everything comes from a story that can be defined as very common. The wife had challenged, without success, the final sentence, which had accepted the request for separation made by her husband. In Cassation, the wife complains about the fact that the Court of Appeal had considered the partial application for a partial ruling (pursuant to Article 151, first paragraph, cc) although the husband had also applied for a separation request with a debit and despite the wife opposed the separation request. According to his wife the judges of the appeal would have founded the decision on a petendi case (first paragraph of the article 151 cc) not deduced by the man, who had, instead, founded the separation request exclusively on the reported violation of duties arising from the wife's marriage.

The total disaffection of the spouse justifies instead the non-definitive sentence of separation, the Supreme Court had already expressly highlighted how the art. 709-bis cpc explicitly establishes, in the matter of immediate ruling on "status", the already considered equalization between the separation process between spouses and the divorce, wishing to avoid dilatory court proceedings, such as to negatively affect the right of a of the parties to obtain a prompt ruling on their "status" (see Cass., No. 10484 / 2012; Cass., No. 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 bound to issue the final sentence of dissolution that the cessation of the civil effects of marriage (separation) when the cause is, already mature for the decision as to the status so that the cause can continue on the remaining rulings.

The non-definitive ruling on separation only constitutes "an instrument to speed up the process of the process that does not determine arbitrary discrimination against the economically weaker spouse", the possibility remains to request temporary and urgent measures, pursuant to Law n. . 898 of the 1970, art. 4, which can also be modified and revoked by the investigating judge as circumstances change.

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