Consensual separation is the procedure that allows spouses to separate by mutual agreement, also establishing the economic conditions and custody of the children
The consensual separation is, therefore, the instrument that the law makes available to spouses who intend to separate by mutual agreement and who have therefore jointly established the rights relating to the property, to the maintenance allowance for the less wealthy spouse and children, to the custody of the children and the assignment of the marital home.
The agreement, which involves all aspects, is stipulated in private with the assistance of one or two lawyers (depending on whether the spouses have decided to be assisted jointly or not), but to become effective it must be approved by the Court with a specific provision.
Norm on consensual separation
Consensual separation, as regards its substantial aspects, is governed by art. 158 of the civil code, while it is art. 711 of the code of procedure to dictate the procedural rules. Let’s see what the two rules say about consensual separation:
• the separation must be approved by the judge to be effective;
• authorization can be refused if the interests of the children are not protected in the agreement;
• the consensual separation is submitted under the form of a “ricorso”;
• in the preliminary hearing an attempt is always made to reconcile the couple;
• when conciliation fails, the spouses’ consent is given on the conditions indicated in the agreement on children and their relationships;
• the conditions of the separation can be changed through another specific hearing.
Agreements on custody of children
If children are born from the bond between the two spouses, the separation agreement should adopt the appropriate measures, taking into account that parental responsibility rests on both spouses and that the children have the right to maintain a balanced relationship with both mothers and with father.
Law no. 54/2006 has in fact determined the principle of double parenting, making important changes to the previous regime. The rule today is shared custody, where the exclusive custody is an exception that can only be ordered in extreme circumstances.
According to such principle, every parent must take care of the health, education, instruction, moral and material assistance of the children.
The Judge must make sure that the above conditions are met in the consensual agreement of separation to be authorised.
The revision of the conditions of separation
In any case, the content of the mutual separation agreement can be modified even after approval provided that new factual circumstances arise that justify the amendments (this is the case, for example, in which the economic conditions of one of the parties have changed).
The application can be proposed by a single spouse or by both and may have as its object the rectification or revocation of both the provisions on economic aspects and those relating to the custody of children.
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