Legal Separation in Italy (Separazione): Consensual, Judicial and the Three Ways to File

Separazione, legal separation, is the step Italian law requires most couples to pass through before a court will dissolve a marriage. It suspends the couple's duty to live together and reorganizes their finances, but the marriage itself stays legally intact until a later divorzio ends it.

This page covers what separation actually changes, the three different ways a couple can reach one, and how fault and money questions are handled along the way.

Information verified on 21 July 2026. This page provides general legal information and does not constitute legal advice for an individual situation.

What separazione changes, and what it does not

Marriage under art. 143 c.c. creates four reciprocal duties: fedeltà (fidelity), assistenza morale e materiale (moral and material support), collaborazione nell'interesse della famiglia (collaboration in the family's interest), and coabitazione (living together). A separazione suspends the practical, daily side of these duties, above all coabitazione, and reorganizes how the couple's money and property work while the marriage bond itself continues.

What separazione does not do is dissolve the marriage. Neither spouse can remarry, and the couple remains married in every legal sense that still matters until a divorzio is separately granted, on its own timeline (covered on our divorce page).

Consensuale or giudiziale: agreement or dispute

A separazione consensuale is one both spouses agree to, including its terms: who lives where, what happens with any children, and what either spouse pays the other. A court, or the negotiating lawyers, still checks the agreement, particularly wherever children are involved, but the spouses are not opposing each other in a contested case.

A separazione giudiziale is a contested proceeding before the tribunale, used where the spouses disagree on whether to separate at all, or on the terms. Art. 151 c.c. sets the legal ground: facts that make continuing to live together intolerable, or that seriously harm the children's upbringing. A judicial separation can also carry a declaration of addebito, discussed below, which a consensual separation cannot.

The three routes to a separation

The tribunale. A separazione giudiziale is filed with the tribunale ordinario in the place of the couple's last shared residence (or the respondent's residence). It is the route for genuine disagreement, and it is also available for a consensual separation the couple wants formalized through the court rather than negotiated directly.

Negoziazione assistita. Under art. 6 of D.L. 132/2014 (converted, with amendments, by L. 162/2014), each spouse retains their own lawyer, and the two lawyers negotiate a written agreement. Where there are no minor children, no incapacitated adult children, no adult children who are severely disabled under art. 3 comma 3 L. 104/1992, and no adult children still economically dependent, the agreement goes to the procuratore della Repubblica for a straightforward nullaosta. Where any of those children are involved, the same official reviews the agreement more closely and must find it consistent with the children's interest before authorizing it. Negoziazione assistita is, in other words, available with children in the picture; it is simply supervised more closely when they are.

The Comune. Art. 12 of the same decree lets a couple separate with a joint declaration before the Ufficiale di Stato Civile (typically the mayor acting in that capacity) at the town hall, with a lawyer's assistance optional rather than required. This route is narrower than negoziazione assistita: it does not apply at all where there are minor children, incapacitated, severely disabled or non-self-sufficient adult children, and the agreement cannot include any transfer of property between the spouses. It is the fastest and least expensive path for a couple that clears those conditions.

Addebito: when fault is declared

Where one spouse asks for it in a giudiziale proceeding, art. 151 c.c. lets the tribunale declare addebito, attributing the separation's breakdown to conduct by one spouse that violated the duties art. 143 c.c. sets out, most often a serious and sustained breach of fidelity or of the duty of material or moral assistance. A finding of addebito is not automatic and is not requested in most separations, which proceed without any fault finding at all.

The main legal consequence of addebito falls on money: a spouse found at fault loses their own right to claim a mantenimento assegno from the other, even if their income would otherwise be inadequate. It does not affect a parent's duty to contribute to a child's maintenance, which rests on a separate legal basis entirely (covered below and in more depth on our spousal and child maintenance page).

Money during a separation: the assegno di mantenimento

Art. 156 c.c. lets the tribunale order the non-fault spouse a periodic mantenimento assegno where that spouse lacks adequate income of their own, with the amount set against the circumstances and the paying spouse's means, not a fixed formula. This is a distinct right from the assegno divorzile that can follow a later divorce, which rests on a different statute (art. 5 L. 898/1970) and a different legal test, explained in full on our assegno divorzile page.

A 2023 procedural reform (D.Lgs. 149/2022, part of the broader Cartabia reform of civil justice, in force from 28 February 2023) repealed several commi of art. 156 c.c. that dealt with enforcement mechanisms, such as sequestro of assets or direct payment orders against third parties owing money to the paying spouse. Those mechanisms were relocated into the unified family-proceedings rules of the code of civil procedure rather than eliminated, so the repeal should not be read as removing the underlying right to a mantenimento assegno itself, which remains fully in force.

Children during a separation

Where a couple has minor children, the same proceeding that grants the separation also settles custody and child maintenance, following art. 337-ter c.c. Shared custody, affidamento condiviso, is the default outcome: both parents keep parental responsibility, the responsabilita genitoriale, and are expected to agree on major decisions about health, education and residence, whichever parent the children mostly live with day to day. A court departs from shared custody only where it finds, in a reasoned decision, that giving custody to one parent alone, affidamento esclusivo, better serves the child's interest. Where the child actually lives day to day, the collocamento prevalente, is a separate question again and does not follow automatically from either arrangement.

Child maintenance under the same article is assessed separately from anything either spouse receives personally, using the child's needs, the previous standard of living, the time spent with each parent, each parent's economic capacity, and the value of the caregiving work each parent actually does. Our spousal and child maintenance page works through that calculation in detail, since it is frequently confused with the spousal assegno described above.

Three situations, three different routes

A couple with no children and no property to divide, who agree on everything. This is the profile the Comune route was built for: no minor or dependent children, no property transfer in the agreement, both spouses in full agreement. They can complete a separation with a joint declaration before the Ufficiale di Stato Civile, without going near a courtroom.

A couple with one minor child, who agree on the terms but the terms involve the child. The Comune route is closed to them by art. 12, regardless of how much they agree. Negoziazione assistita remains open, with each spouse represented by their own lawyer and the agreement reviewed by the procuratore della Repubblica for the child's interest before it takes effect; a consensual filing directly with the tribunale is the alternative.

A couple who disagree, where one spouse alleges the other's conduct caused the breakdown. This is a separazione giudiziale, filed with the tribunale, where the spouse alleging fault can also ask for a declaration of addebito against the other. The outcome affects not only whether the separation is granted but also whether the not-at-fault spouse can later claim a mantenimento assegno.

From separation toward divorce

A separation is not permanent by design; it is the mandatory precursor most couples pass through before either can seek a divorzio. The waiting period before a divorce can be requested runs from the spouses' first appearance before the tribunale in the separation proceeding, the comparizione dei coniugi, and it is shorter for a consensual separation than a contested one, under the divorzio breve reform covered in full on our divorce page.

Frequently Asked Questions

Does separazione end the marriage?

No. Separazione (legal separation) suspends the couple's cohabitation and day to day financial unity, but the marriage bond itself remains. Neither spouse is free to remarry until a court later grants a divorzio, which is a separate proceeding.

Can we separate without going to court?

Yes, in two ways. Couples in full agreement can use negoziazione assistita, where each spouse has their own lawyer and the agreement is checked by the procuratore della Repubblica, or, if there are no minor or dependent children and no property to transfer, a joint declaration before the Ufficiale di Stato Civile at the Comune.

We have a minor child. Can we still avoid the tribunale?

You cannot use the Comune route, which art. 12 of D.L. 132/2014 bars outright wherever there is a minor child, an incapacitated adult child, an adult child who is severely disabled under art. 3 comma 3 L. 104/1992, or an adult child who is not yet economically self-sufficient. Negoziazione assistita, however, remains available: the procuratore della Repubblica reviews the agreement for the child's interest before it takes effect.

What is addebito, and what does it change?

Addebito is a court finding, under art. 151 c.c., that the separation is attributable to one spouse's conduct contrary to the duties of marriage set out in art. 143 c.c., such as fidelity or the duty of assistance. It is significant mainly because a spouse found at fault loses their own right to a mantenimento assegno, though not the duty to support any children.

Is a separated spouse automatically paid a mantenimento assegno?

No. Art. 156 c.c. makes it conditional: a court orders it only for the spouse who is not at fault for the separation and who lacks adequate income of their own, and the amount is set case by case against the paying spouse's own means. It is not an automatic or fixed payment.

How long does a separation have to last before we can divorce?

Under L. 55/2015, the waiting period runs from the spouses' appearance before the tribunale: twelve months for a contested (giudiziale) separation, or six months where the separation itself was consensual. See our divorce page for how this timeline works in practice.

What happens to our children's living arrangements during a separation?

Shared custody, affidamento condiviso, is the default rule under art. 337-ter c.c.: both parents keep parental responsibility and take major decisions together, regardless of which parent the children live with day to day. A court orders sole custody only where it finds shared custody would be against the child's interest.