Legal Update: Simultaneous Separation and Divorce Allowed

In a significant decision, the Court of Cassation, dated October 16, 2023, permits parties to simultaneously file separation and divorce claims, even in cases initiated by the parties themselves. This ruling arises from amendments in the recent “Cartabia” Reform.

Following Legislative Decree No. 149/2022, the court clarified that parties can now concurrently present separation and divorce claims under Article 47 bis-49 of the revised Code. The divorce claim is procedurally valid only after a legally stipulated time frame (six or twelve months, depending on consensual or contentious procedures, per Article 3 of the Divorce Law).

Regarding the novel “prejudicial referral” the court highlighted its introduction by the “Cartabia” Reform, emphasizing its binding nature, unlike other European systems. Prejudicial referral is limited to novel legal issues not previously addressed by the Court of Cassation, deemed of significant importance, presenting serious interpretative difficulties, and likely to recur.

The court further clarified that the joint presentation of claims for personal separation and divorce is permitted, echoing the procedure for contentious cases, marking a particularly innovative facet of the “Cartabia” Reform. This resolves a legislative gap and aligns voluntary jurisdiction procedures with contentious ones.

In conclusion, the Court of Cassation found no justifiable reason for the disparity between contentious and joint proceedings. It affirmed the legal principle: “In family crisis matters, within the framework of the procedure provided for in Article 473-bis.51 c.p.c., the joint recourse of spouses proposed with a joint and cumulative request for separation and dissolution or cessation of the civil effects of marriage is admissible.”

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