“Nno man is an island”, says a poem by John Donne. And no couple is, we would add today. Every bond – sentimental, family or cohabitation – exists within a network of relationships that the law protects and regulates. We are all part of a complex system of relationships, which give rise to rights and duties towards othersregulated by family law. We talk about it with Grazia Ofelia Cesaro, a lawyer expert in family and juvenile law, national and international in Milan, and author of the book Dancing in the rain. Families, separations and rebirths (Feltrinelli).
When you are married
In Italy, marriage can be celebrated in a civil or religious form, but to be legally effective it must be transcribed in the civil status registers. There are two types of religious marriage with civil effects: the concordat marriage, celebrated according to the Catholic rite, and the marriage according to admitted cults (religions other than Catholicism which have entered into agreements with the State, such as Judaism). In both cases, transcription is necessary for civil enforcement.
Is foster care possible?
«Yes, but only after an evaluation of the couple by social services and the foster care center».
What are the rules for adoptions?
«National and international adoption is permitted to couples who have been married for at least three years (including cohabitation), not separated even de facto, who have been assessed as suitable from an emotional, educational, relational and economic point of view. As for the presence of any natural or adopted children, it constitutes neither an automatic advantage nor an automatic disadvantage. Social services and the Juvenile Court evaluate on a case-by-case basis. National adoption follows a more streamlined process, managed entirely by the Juvenile Court. International adoption, on the other hand, requires a more complex procedure, which also includes a phase in the child’s country of origin, following international conventions.
In the event of the death of one of the members of a couple, the legitimate share of the inheritance goes to the surviving spouse and children. Can spouses make a will, deciding to disinherit their child?
«No, spouses cannot disinherit a child, nor allocate the entire estate to third parties, damaging the legitimate share that is due to them. It is possible to do this only in cases of inheritance unworthiness (for example, if the child alters the will to his own advantage and is discovered). However, the possibility of attributing a greater share to the child who has been taken care of by his parents or who is in need is permitted, but only within the limits of the available share”.
Couples, rights and duties
In the case of a civilly married LGBTQ+ couple, are the rights and duties the same?
«They tend to enjoy the same personal, property and social security rights and duties as married heterosexual couples, with some exceptions. A recent ruling by the Court of Cassation established that the same criteria apply to civil unions for the recognition and determination of any allowance in the event of divorce. However, there is no obligation of loyalty, nor the automatic extension of the rules on adoption.”
Does the couple always have to support their children, even when they are adults?
«Yes, it is an obligation that weighs on both and continues until the child has reached full economic self-sufficiency, that is, effective entry into the world of work with a stable income. The contribution to maintenance, in fact, can only be revoked in the presence of culpable inertia on the part of the child or an unjustified refusal of work opportunities. Jurisprudence recognizes as one of the possible criteria the achievement of an age threshold around the twenty-sixth year of age, except in particular cases”.
My son doesn’t pay child support to his son and ex-wife. Can I be called into question?
«Grandparents may be required to contribute financially to their grandchildren if the parents do not have sufficient resources to guarantee their maintenance. This obligation does not concern support for the child’s ex-spouse, but exclusively for minors.”
Every relationship exists within a network of rights and duties. Knowing the rules and how they evolve is the first step to living bonds with clarity. A new book explains it (Getty Images)
When you live together
Can cohabitants become foster and adoptive parents?
«Fostership is possible as long as its suitability is assessed on the emotional, relational, educational and financial level of the couple. Unmarried couples, however, can only access adoption in particular cases. After the recent ruling of the Constitutional Court which opened international adoption to singles, the possibility of applying the principle also to cohabiting couples is being discussed.”
In the case of a homosexual couple with a child born to one of the two members of the couple, can the other recognize him?
«No, in Italy the partner cannot directly recognize the child born to the biological parent, but can submit a request for adoption in particular cases, pursuant to art. 44, letter. d of Law 184/1983. If the child was born abroad and the birth certificate indicates two parents of the same sex, transcription in Italy is possible in some cases.”
Pension and rental contracts for those living together
Is there a right to reversibility of the pension?
“No, it doesn’t exist for de facto cohabitants.”
If the rental contract is registered in the name of one of the two cohabitants who dies, is there a right for the survivor to take over?
«Yes, in cases of death of the tenant or his withdrawal from the rental contract of the house of common residence, the cohabitant de facto has the right to succeed him in the contract».
In the event of separation of the cohabiting couple, what legal obligations are there?
«The judge can establish that a cohabitant pays maintenance to the other (which is not maintenance) if he is in a state of need, for a period proportional to the duration of the cohabitation».
As for the obligations towards their parents, does each of the cohabitants respond only to their own?
“Yes, de facto cohabitants have no legal obligations towards their partner’s parents.”
When you get divorced
What’s the easiest way to get a divorce?
«It is divorce by mutual consent, or short joint divorce. When the spouses agree on all the conditions for the end of the marital relationship, from custody and placement of children, to visitation rights to economic issues (for example, child support) to the division of common assets (house, car, joint bank accounts, etc.). Everything is resolved in a hearing, often replaced by the filing of written notes, in which the judge ratifies the agreement reached. It is possible to divorce six months after the separation, if it was consensual. The entire procedure generally lasts a few months, from the filing of the appeal to the sentence. In the past, when short-term divorce did not exist, to get a divorce it was necessary to wait at least a year after the separation, if consensual, and even three years, if the separation had been judicial”.
There is also “multiple separation divorce”: what is it?
«This is the possibility of presenting the request in a single appeal. Six months after the consensual separation, or twelve after the judicial separation, the divorce sentence is pronounced. The cumulative separation divorce is indicated for spouses who are in a hurry to end their relationship before the law. We need the assistance of a lawyer.”
Couples, rights and duties if there is no agreement
What happens if the spouses cannot agree on a divorce?
«In this case, the law provides that the spouse who wants a divorce must introduce judicial proceedings. The decision on the points of disagreement between the spouses will be made by the judge. The times are a little longer, but it is always possible to reach an agreement even during the course of the case.”
Do you always have to go to court to separate?
«No, now there is also the possibility of contacting the Municipality, the Civil Registry Office, provided that there are no minor or non-self-sufficient children and that the spouses have reached an agreement; in this case the presence of lawyers is not even required. In any case, it is always possible to access another procedure, namely assisted negotiation, and this even in the presence of minor children, as long as each spouse is assisted by their own lawyer. With assisted negotiation, if an agreement is reached, the parties do not have to go to Court, but simply submit it to the Public Prosecutor’s Office which, once the checks have been completed, issues a “no impediment” visa. The agreement thus approved is equivalent to a sentence of the Court.”
What happens if two cohabitants separate?
«Everyone goes their own way, if there are no minor children or those who are not economically self-sufficient. Otherwise, you need to reach an agreement and go to court. Or access assisted negotiation. In the absence of an agreement on the children, it will be necessary to turn to the Court. If the cohabitants have no children but, for example, have a jointly owned house, the issue will take on civil significance and, where they want to “divide” the common good, they will either find an agreement or turn to a judge to dissolve the co-ownership by adopting the appropriate measures”.