According to Italian Family Law, spouses that realise their cohabitation and communal life have come to and end can proceed with separation and subsequent divorce. Italian Family law allows divorce only through a period of separation; which can be consensual or contested. During such separation period, spouses interrupt their marital responsibilities and duties with eventual agreements concerning children or spouse support.
The separation period is a mandatory phase to achieve the definitive remedy of divorce; which terminates the legal bond between spouses leaving to them or to the Court the right to decide about alimony and child support. During divorce hearing, the Judge shall listen spouses while asking them if they believe reconciliation may ever take place. Subsequently, in the event reconciliation has taken place, divorce cannot be recognised
The Italian Cassation Court has denied divorce to spouses given that main requirement of a prolonged separation does not apply. In fact, spouses have been living together in the same house for eight years. In the present case, the Court has acknowledged that after consensual separation, spouses and their children have lived together for eight years. Spouses restarted a project of shared and common life while providing moral and economic support to the children. However, the husband confirmed that this cohabitation did not imply any reconciliation. In fact, spouses used to sleep in different room and the husband was in another relation with another woman.
The court assessed that such shared living condition are not compatible with separation. In fact, sharing moment of common life together while taking care of the children inevitably denies the separation. Subsequently, the absence of a clear and prolonged separation period prevents the Court to opt for the divorce.