5 What are the consequences of divorce/separation?
Separation and divorce lead to the dissolution of the matrimonial property regime (Art. 191 CC).
5.1. How is the property (rights in rem) divided?
In cases of dissolution of the (statutory) community of property regime, the assets and liabilities will be divided equally, after having completed any outstanding reimbursements or repayments (Art. 191 et seq. CC, see also under 5.3.). The remaining community property will be governed by the ordinary provisions on joint property. If the spouses cannot find an agreement on the division of the community property, it will be determined by the judge. In the absence of any evidence to the contrary, movables are presumed to be part of the community property (Art. 195 CC). Regarding the needs of the children and their custody, the judge may constitute a usufruct in favour of either spouse on a portion of the property belonging to the other spouse (Art. 194 CC).
In cases of dissolution of a conventional community of property regime (see 3.1.), the above-mentioned regulations on the statutory community of property regime apply, while taking into account any eventual derogations stipulated by the spouses.
In cases of dissolution of a separation of property regime (see 3.1.), the property remains subject to the ordinary property provisions.
The Patrimonial Fund (see 3.1.) will terminate upon annulment or dissolution of the marriage. If there are minor children, the fund will continue until the last child reaches the age of legal majority and the judge may award a share of the fund's assets to the minors, either for use or ownership (Art. 171 CC).
5.2. Who is liable for existing debts after the divorce/separation?
Liability for debts arising from the community of property regime does not change with the regime's dissolution.
5.3. Does one spouse have a claim to an equalisation payment?
5.3.1. In case of a property regime of the community of surplus:
- Does the claim have to be satisfied by means of a payment or in kind?
- How is the claim assessed?
- What is the amount of the equalisation payment?
- When is the claim prescribed?
Italian law does not provide for a community of accrued gains regime.
5.3.2. In other cases (not community of surplus). Which ones?
In case of the community of property regime, each spouse has to reimburse to the community property the sums he/she has drawn from the community property and which were not used to satisfy common obligations. Each spouse can request the repayment of the sums which were drawn from his/her personal property and used for the community property (Art. 192 CC).
Choose another topic of
Couples in Italy
Current country: Germany