The separation charge can be ascertained and declared only in the judicial proceeding before the Court and is an alternative to consensual separation. Judicial separation, unlike consensual separation, always takes place before the judicial authority and is declared with a judgement.
Otherwise, the consensual separation, being the result of an agreement between the spouses, can take place in different ways, and as well as in court it can also take place out of court (through assisted negotiation or outside the courtrooms but with the necessary presence of a lawyer; or even in the absence of a lawyer, but before the mayor in case there is no child custody matter to deal with.
The charge can never be detected ex officio by the judge, as the request of one or both spouses is always necessary, where one or both of them have an interest in attributing the breakdown of the marital union to the behavior of the other.
For these reasons, the charge can never be established by mutual agreement by the separating spouses, since it can only be declared with a judgement by the Judge, if it has ascertained that one of the spouses (or even both) has violated one or more marital duties, making the continuation of coexistence is intolerable.
The consequences of the separation charge
In particular, the ruling of the separation charge, in addition to representing a moral victory for the instant spouse, has important consequences on the patrimonial level, as it follows:
– the order to pay the legal costs of the losing party;
– the loss of the right to the maintenance allowance, except for the right to alimony where there is a state of need. In particular, if the spouse to whom the separation is charged receives alimony at the time of the opening of the succession, he retains the right to receive a yearly allowance from the inheritance. However, the spouse who suffers the separation charge retains the right to the survivor’s pension regardless of the receipt of a maintenance allowance paid by the deceased spouse.
– the loss of inheritance rights towards the spouse who is not charged for the separation, rights that in any case are lost with divorce.
Furthermore, the spouse who is not charged with the separation also has the right to request compensation for damages suffered for the violation of duties arising from the marriage, as such violations can be a source of even extra-contractual liability.
In any case, personal separation, which presupposes the intolerability of cohabitation, does not determine the termination of the marriage bond, it simply aims to weaken it, so much so that reconciliation or divorce of the spouses can follow it. However, the separation does not dissolve the marital bond but ceases the duty of cohabitation between the spouses, who can freely decide to live alone, leaving the marital home if it is not assigned to them, without this involving a violation of the conjugal duty of cohabitation. Furthermore, the most important aspects of the marital relationship are regulated, such as the possibility of the maintenance allowance of the spouse or children where present, the custody of shared, exclusive or equal common offspring, the possible prevalent placement of the same, the methods and times for exercising the visiting rights of the non-resident parent, the regulation of holidays and vacation periods, as well as the regulation of extraordinary expenses, which, unless otherwise agreed, are half due by each parent.
The charge of separation for infidelity according to the jurisprudence
There are frequent cases of charges for violation of the duty of cohabitation or the duty of fidelity, or cases of charges for abandonment of the marital home or betrayal, provided that such events have made it impossible to continue the cohabitation, or have been the cause and not the effect, as they are not consequential and subsequent to the break.
In particular, with regard to the separation charge for violation of the duty of fidelity, the most recent jurisprudence has repeatedly stated that relevance must also be attributed to plausible suspicions of
So much so that the applicant will not have to prove the betrayal, but will have to prove that the news of the extra-marital relationship has been disseminated and made known to the community to the detriment of their reputation and dignity. Therefore, even a purported betrayal may result in the charge, where disclosed has harmed the dignity and reputation of the offended spouse.
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