The Cartabia reform modifies the civil process but also affects all the special processes involving minors and the family. The change is happening in stages. For legal experts it is a great challenge, for citizens a big question mark. Let’s try to understand what has already changed, what is changing and what will change at each stage of the implementation of the reform.

Since July 2022, assisted negotiation, i.e. the procedure that takes place in the lawyer’s office instead of in the Court when the parties agree, also applies to unmarried parents who must regulate the exercise of parental responsibility for children and treatment economic in their favor when they interrupt the coexistence; previously only parents who separated or divorced could use this tool. In this way the 2012 reform, with which the legislator equalized children born in wedlock and those born out of wedlock, was finally perfected: a single negotiation procedure applies to all children, whether born in wedlock or out of wedlock. For the protection of minors, the number of cases in which it is mandatory to appoint a special guardian of the minor has been expanded; in this way, every minor is guaranteed adequate procedural representation in the proceedings that concern him.

From March 2023 (to be precise from 28 February 2023) a new ritual called “procedure concerning persons, minors and families” came into force which applies to everyone, both for married couples and more uxorio cohabitants. Before the reform there were two different procedures, now only one exists and, also through the introduction of a single procedure in the Court, full equality of children born in wedlock and those born out of wedlock is achieved as well as, obviously, those who have chosen to form a family through marriage and those who have done so through cohabitation and find themselves managing the crisis.

This new procedure which applies to everyone – i.e. for those who separate, for those who divorce, for those who dissolve a civil union, for those who interrupt a cohabitation – can be joint, i.e. used when there is an agreement between the two parties but in any case, he prefers to go to the Court to ratify the agreement rather than using assisted negotiation in a lawyer’s office, or judicial negotiation, when there is disagreement on one or more aspects of the matter (financial aspects or length of stay for the children; he is never put in question the status since it is a right to separate, divorce, dissolve the civil union: the question of status is not subject to the “concession” of the other, as is often erroneously said).

The new ritual entails a greater commitment on the part of the lawyer in preparing the introductory document, which must already contain a large part of the defenses of the trial, and on the part of the client, who must immediately provide all the documentation suitable for his defence. Previously the process of separation and divorce allowed for longer times; the chamber of commerce procedure for more uxorio cohabitants, on the other hand, while not expressly providing for an obligation to allege from the outset, due to its method of conduct already suggested the opportunity of allegation right from the start. With the new procedure, for example, starting from the appeal, in addition to the tax return for the last three years, the documentation certifying the ownership of real rights on registered real estate and movable property, company shares and bank account statements must also be produced. finances for the past three years. In the presence of minor children, it is mandatory to attach the so-called parental plan from the introductory act, i.e. a document in which parents must indicate the commitments and daily activities of the children relating to school, extracurricular activities, usual attendance and holidays.

With the new rite it is not possible to divorce without first separating, but it is possible to request separation and divorce in the same deed. This possibility has generated the false belief that in Italy it is now possible to divorce immediately without going through the separation phase and without respecting the separation times established by law 55 of 2015 which eight years ago reduced the separation period from three years to six. months if you separated in agreement or a year if you separated in disagreement.

One wonders what is the advantage of asking for separation and divorce at the same time if, in any case, one has to wait for the canonical six months or a year of separation.

It seems that the legislator has foreseen the possibility of requesting separation and divorce in a single act, not to avoid the phase of separation as desired by many, considering that the 2015 law has not been repealed, but exclusively to allow a single preliminary investigation phase (collection of evidence). An advantage that in the intentions of the legislator should allow for a reduction in the time of the process if the spouses disagree. In the event of an agreement (in which the preliminary investigation phase is not necessary, since the parties are in agreement), it seems the simple implementation of a consolidated good practice by lawyers to prepare the divorce deed already in the phase of separation, in case of agreement between the spouses, then waiting six months for the filing of the divorce appeal, six months which, however, with the Cartabia reform have not ceased even if the request for divorce is contained in the separation deed.

Moreover, on this point the provision is not of crystalline interpretation. For many legal experts it is possible to request separation and divorce in a single act only in judicial proceedings (when the parties who separate do not agree to have a single preliminary investigation). According to others, however, it is also applicable in the event of an agreement. Only with time will we understand which interpretation will prevail.

The new rite is also applied in proceedings concerning the modification of the conditions of separation, of the conditions of divorce, of the conditions of the dissolution of the civil union and of the conditions in the context of the termination of cohabitation more uxorio.

In December 2024, the Single Court for individuals, minors and families will be established, unifying the current powers distributed between the Ordinary Court, the Juvenile Court and the guardianship judge at the Ordinary Court.

Avv. Camilla Cozzi