Advice Centre

When a couple or one of the spouses realizes that the marriage is at a loss they are faced with uncountable dilemmas regarding the steps to take to be able to come to terms with the end of the relationship and move forward.

Breaking up is never easy no matter the circumstances. It involves not only the couple`s feelings but also practical aspects of everyday life, such as where to live, how to split any assets, and how to cope without the other`s financial help or support, and meet all necessary needs. Things only get harder when there are children of the family involved, and the couple must try to find a way to work through their own feelings and cooperate in the best interest of their children.

If either you or your spouse (or both) are Italian but have been living in England or Wales for either 6 or 12 months, you can apply for a divorce under the English Jurisdiction. 

But what are the differences between applying for an “English divorce” and an “Italian divorce”?

The most important difference is that whilst in Italy in order to obtain a divorce, you must have been legally separated for 6 months (if the separation was applied for jointly and you do not have any children under the age of 18) or 12 months (in case the separation was contested, or you have children under the age of 18), in England you can apply directly for a divorce.

Another fundamental difference is that whilst in Italy the divorce proceedings (whether joint or contested) include all aspects of the breakdown of the marriage, such as matrimonial relief, financial and children matters, in England, these proceedings are separate.

To make things clearer, in Italy the “divorce” order or agreement will include, not only the matrimonial relief, but also spousal and child maintenance, any provision in respect of the family home, and also all child arrangements.

The application for a divorce in England will not include any issues concerning your finances or children, it will only lead to a conditional order first, and a final order later, that declares the end of the marriage. Financial and Children matters must be dealt with separately.

Although this may seem more lengthy this is not really the case, as proceedings in England are currently much faster than proceedings in Italy. Divorce, financial and children matters (if necessary) can be started together. The timescale to obtain a conditional order (the first step of the divorce) is between 6 to 7 months. If you and your spouse are in agreement in respect of finances,  a consent order (a document that indicates the details of your agreement) can be filed with the court and matters can be solved within the same period of time. If you are not in agreement, and it is necessary for the Court to decide in respect of the division of the assets, or any issues concerning the children of the family, contested proceedings are usually resolved in approximately 12 to 18 months.

Does it seem like two different worlds? It really isn`t.

On the 6^th April 2022, the No-Fault Divorce came into force in England & Wales. The only ground to a apply for a divorce is now the “irretrievable breakdown of the marriage”, meaning that the parties can now apply for a divorce without needing to justify the end of the relationship. You can apply for a divorce even for the simple reason that you have grown apart.

Not only it isn`t necessary to indicate the specific reason for the breakdown of the marriage, but it is technically impossible to do so. The new system has eliminated any chance for the spouses to blame the divorce on one another.

From this point of view, both systems are similar, as Italian law only allows to use the “fault” of the other spouse during separation proceedings, but the same cannot be done during the divorce.

Avoiding the chance to put the blame of the divorce on one another, helps to reduce the conflict between the parties, speeds the process, and creates more possibilities to negotiate all the other aspects (whether it is issues with assets, or children).

Another similarity is the fact that, exactly like in Italy the only grounds to contest the divorce (only as matrimonial relief) is jurisdiction.

As previously explained, divorce proceedings in Italy also cover financial and children matters. For this reason, when they are contested or include complicated issues due to numerous assets or high conflict in respect of the children, the parties can apply for a partial Final Order in respect of matrimonial relief. If applied for, the partial Final Order cannot be refused by the Court, and once granted the divorce is final and the spouses can remarry. If you are struggling with breakdown of your marriage and thinking about issuing divorce proceedings whether in the UK or in Italy, IMD Solicitors will be in a position to advice on the best course of action and appropriate jurisdiction.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.