In November 2021, the reform of the civil process proposed by the Minister of Justice Marta Cartabia was approved.
For two years, the draft Law no. 1662 of government initiative on the same topic, proposed by the then Minister Bonafede had been examined by the Justice Commission, without result. The greatest interest in the reform and its approval came from the resilience and recovery plan prepared by the Draghi government to obtain “Next Generation Eu” funding from the European Union.
To the original Bonafede proposal, the Cartabia reform proposal has included articles entirely dedicated to the family process that had been beautifully ignored by the previous reform project.
Here, then, is how the process of the family, minors and individuals will be transformed both as regards the ritual and as regards the courts and judges, an organic and far-reaching reform which will be completed by 2024.
1. Single rite called “Proceedings concerning persons, minors and the family”.
In 2012, the Legislator lost the opportunity to create a single proceeding for the family, when he equated children born in wedlock with those born out of wedlock, forgetting to equate the processes concerning their maintenance and the time spent in the ‘either of the parents separating.
Finally, with this reform, it was decided to create a single process for all cases relating to the family, minors, individuals, based on streamlined and rapidity, but always as a guarantee of the rights of minors and vulnerable subjects. Therefore, there will no longer be a difference between the proceedings for separation and divorce governed by the Civil Code and the law on divorce and the judgments summarily regulated by the rules on the chamber of commerce (Articles 737 and following of the Code of Civil Procedure).
All proceedings will be introduced with an appeal and the parties, from the outset, will have the burden of producing all the documentation relating to their economic and financial situation. The filing of a “parenting plan” is also envisaged, which describes the daily life that the minor lives (school commitments, extracurricular commitments, habits), habitual friendships and family visits, the holidays normally enjoyed during the year. To guarantee the minor, the judge may appoint a special trustee; a possibility that already exists in separation and divorce processes but is rarely practiced. The new rite will be included in the second book of the Civil Code title IV bis, after the labor rite.
2. Single court for families, minors and individuals
By 2024, if there are no problems related to the State Accounting Office, there will not only be a single type of process but also a single court will be established for persons, minors and the family at the current ordinary courts (district sections) which will deal with separations, divorces, cessation of cohabitation with children, with proceedings that today are within the competence of the guardianship judge (for example support administration), with so-called de potestate proceedings (for example the forfeiture of parental responsibility) which today are within the competence of the Juvenile Court, and of the causes for so-called intra-family damage, i.e. the cases concerning the request for compensation for the damage unjustly suffered within the family. The prevailing criterion of jurisdiction for choosing the court in which to root the judgment will be that of the place of habitual residence of the minor.
The courts of appeal (district sections) will deal with appeals against orders issued by district courts, juvenile criminal cases and cases of national, special and international adoption, as well as cases relating to citizenship, immigration, the recognition of international protection. There will therefore no longer be a Juvenile Court. The court (district section), unlike today, will have a monocratic composition and no longer collegial.
The CSM, therefore, must, within one year of the entry into force of the Legislative Decrees implementing this reform, determine the organic layout of the judicial offices.
3. Specialized judges
The judges assigned to the court for persons, minors and the family will be chosen from among those with specific expertise in the matters and assigned exclusively to the court. Unlike today they will no longer have to be moved after ten years in the assignment from the function; in this way the dispersion of competence and specialization will be avoided.
The honorary judges will be used exclusively for functions of conciliation and listening to minors, and will no longer be used, as instead happens in the current procedure for the cessation of cohabitation with children, to preside over the first hearing for the appearance of the parties or to replace to all intents and purposes professional judges, in proceedings which today fall under the jurisdiction of the tutelary judge (for example in proceedings for the appointment of a support administrator).
Camilla Cozzi