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Maintenance claims - Italy

Please note that the original language version of this page Italian has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS

European Judicial Network in civil and commercial matters

1 What do the concepts “maintenance” and “maintenance obligation” mean in practical terms? Which persons have to pay a maintenance allowance to another person?

In the Italian legal system, there are different names, conditions and amounts for family assistance depending on the relationship between the person liable and the beneficiary.

‘Obbligazione alimentare’ is the provision of material assistance to a person who is unable to support themselves. It is payable by certain persons identified by law, as part of their duty of family solidarity.

The rules for this type of maintenance are set out in Sections 433 et seq. of the Civil Code. It must be paid where:

-     a specific legal relationship exists between the person liable to pay maintenance and the beneficiary

-     the beneficiary, unable to earn their own living, is in a situation of need.

Those liable to provide maintenance are, in order:

  • the spouse,
  • children,
  • parents, or in their absence, direct relatives in the ascending line,
  • sons-in-law and daughters-in-law,
  • fathers-in-law and mothers-in-law,
  • brothers and sisters.

The closest relative according to the above ranking is liable to provide maintenance; should there be more than one person at the same level, liability is divided between them according to their financial circumstances.

The amount payable is proportional to the need of the person claiming maintenance and the financial circumstances of whoever has to pay it. However, this type of maintenance should not exceed the amount necessary to cover the basic vital needs of the person in need, having regard to their social status.

‘Assegno di mantenimento’ is the provision of financial assistance by one spouse to another in the event of separation or divorce, and it is designed to ensure that whoever receives it is able to maintain the living standard enjoyed during the marriage. ‘Assegno di mantenimento’ is not conditional upon the beneficiary being in need and it may be claimed even if the beneficiary is working. It may be waived and it may be replaced by a single payment.

As this type of maintenance aims to ensure that the spouse maintains a similar living standard to the one enjoyed prior to the separation, it is usually a higher amount than ‘assegno alimentare’. However, ‘assegno di mantenimento’ is not payable to the spouse deemed responsible for the separation.

The term ‘assegno di mantenimento’ also refers to the financial support that parents have to pay for their children when they separate or divorce.

Children have the right to be maintained by their parents in proportion to their respective means and in accordance with their ability to work professionally or at home. In the event of separation or divorce, the court establishes that regular maintenance is to be paid and decides the amount in accordance with the child’s needs, the standard of living enjoyed by the child while living with both parents, the amount of time spent with each parent, the financial resources of both parents and the financial value of the domestic and care duties carried out by each parent.

2 Up to what age can a child benefit from a maintenance allowance? Are there different rules for maintenance concerning minors and adults?

Until they reach majority, children have the right to be maintained by their parents in proportion to their respective means and in accordance with their ability to work professionally or at home. In the event of separation or divorce, the court establishes that regular maintenance is to be paid (see previous section).

If a child has reached majority but is not yet financially independent, the judge may order one or both of the parents to pay regular maintenance, usually direct to the child. Once a child that has reached majority has become financially independent, if they again experience financial hardship, the parents are liable only for the ‘obbligazione alimentare’.

If a child that has reached majority has a serious disability, the rules for children who are minors apply.

3 Should I apply to a competent authority or a court to obtain maintenance? What are the main elements of this procedure?

To obtain ‘alimenti’ a person must submit an application (atto di citazione) to the court where they live, enclosing any documentary evidence of their need.

Once the proceedings have begun, it is possible to ask the court to grant provisional maintenance before the final ruling is made.

Maintenance for children or a spouse may be applied for in separate proceedings or as part of separation or divorce proceedings. The maintenance may also be decided by the court in the first hearing of the proceedings.

4 Can a request be made on behalf of a relative (if yes, what grade), or a child?

5 If I plan to bring the case to court, how do I know which court has jurisdiction?

In accordance with Regulation (EC) No 4/2009, in matters relating to maintenance obligations in Member States, jurisdiction lies with:

a) the court for the place where the defendant is habitually resident, or

b) the court for the place where the creditor is habitually resident, or

c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

6 As an applicant, do I have to go through an intermediary to bring the case to court (e.g. a lawyer, central or local authority, etc.)? If not, which procedures apply?

The document instituting proceedings concerning maintenance must be presented through a lawyer, who represents the party in court.

The assistance of a lawyer is not necessary if the decision about maintenance is included in the agreement between two spouses who are separating. In that case, the agreement is submitted to the court, which checks and approves it.

7 Do I have to pay fees to bring a case to court? If so, how much are they likely to be? If my financial means are insufficient, can I obtain legal aid to cover the costs of the procedure?

A person bringing a case to the civil courts must pay a registration fee (contributo unificato di iscrizione a ruolo). This fee varies depending on the type and value of the case. The orders issued by the court are also subject to a registration fee.

However, neither of these registration fees is payable in cases concerning maintenance payments for children.

The parties must pay the legal costs of the lawyers representing them in court.

Persons who lack sufficient resources may request the appointment of a lawyer to assist them free of charge, with the costs borne by the State (legal aid).

To qualify for legal aid, the applicant must have an annual taxable income of no more than EUR 10 766.33. If the person concerned lives with their spouse or other family members, the total annual income will be calculated by adding together the incomes of all the family members, including the applicant. In that case the maximum income to qualify for legal aid is increased by EUR 1 032.91 for each family member with whom the applicant is living.

Applications for legal aid are made to the Bar Council (Consiglio dell’Ordine degli Avvocati) for the place where the court with jurisdiction in the case is located. Applications must be made on the forms available from the Bar Council administrative office and on the Bar Council website, and the forms must be accompanied by the documents indicated on them.

The application must state the grounds and the legal basis for the claim and must include documentary evidence. The Bar Council will not grant legal aid if the claims being brought to court are clearly unfounded.

If the Bar Council accepts the application, the person concerned may appoint a lawyer chosen from the list of authorised legal aid lawyers. Some Bar Councils will themselves choose the lawyer to take the case.

An application for legal aid may be made at any stage and instance of the proceedings and is valid for all subsequent instances, provided that the person continues to lack sufficient resources throughout.

If the application for legal aid is rejected, the person concerned may resubmit it to the court with jurisdiction in the case.

8 What kind of maintenance is likely to be granted by the court? How is the amount of maintenance calculated? Can the court's decision be revised, if living costs or family circumstances change? If yes, how (e.g. by means of an automatic indexation system)?

The court order stating the amount of maintenance to be paid and ordering its payment is an executory ruling, and therefore constitutes an enforcement order.

A court order declaring entitlement to maintenance places a duty on the person liable to pay the beneficiary what they need to meet their basic vital needs (subsistence, accommodation and clothing costs and the costs of the minimum goods and services necessary to maintain a dignified life). When deciding how much maintenance should be paid, the court must also take account of the financial circumstances of the person liable for maintenance.

A court order stating the amount of maintenance to be paid to a separated spouse must also take account of their standard of living during the marriage.

A court order stating the amount of maintenance to be paid to children who are still minors, or to children who have reached majority but are not financially independent, must take account of their educational needs.

Maintenance is automatically adjusted in line with the ISTAT indices or any other parameters agreed by the parties or stated in the court order.

The amount of maintenance payable may be changed at a later date if the beneficiary or the person liable applies to the court with jurisdiction, which is usually the one that issued the original order.

9 How and to whom will the maintenance be paid?

The court lays down the payment arrangements.

In cases of legal separation, the court may order third parties required, including on a regular basis, to pay the person liable for maintenance (e.g. their employer) to pay some of the money direct to the separated spouse.

The maintenance must be paid to the person to whom it is owed.

Maintenance for children who are still minors is usually paid to the spouse who has custody of them.

Maintenance ordered by the court for children who have reached majority but are not financially independent is paid direct to those children.

10 If the person concerned (debtor) doesn't pay voluntarily, what action can be taken in order to force him/her to pay?

If the person ordered to pay maintenance does not pay it voluntarily, the usual means of enforcement of financial obligations are open to the beneficiary.

11 Please describe briefly any limitations on enforcement, in particular debtor protection rules and limitation or prescription periods in your enforcement system

The entitlement to maintenance is not in itself subject to a prescription period. Any individual instalments that fall due but are not paid are subject to a five-year prescription period (Section 2948(2) of the Civil Code). Moreover, prescription is suspended between spouses and between whoever has parental responsibility for the persons receiving maintenance.

12 Is there an organisation or an authority which can help me to recover maintenance?

Italy does not have an organisation or an authority which can help those entitled to maintenance to recover it. The person entitled to maintenance, either themselves if they have reached majority or through their legal representative if they are under 18, must bring a case before the court with jurisdiction, with the assistance of a lawyer.

13 Can organisations (government or private) advance the payment of maintenance wholly or partly in the debtor's place?

No.

14 If I am in this Member State and the debtor has his/her residence in another country:

14.1 Can I obtain the assistance of an authority or private organisation in this Member State?

A person entitled to maintenance payments from someone living in another country may obtain assistance from Italy’s Central Authority. They must submit an application for recognition and a declaration of enforceability and enforcement of the decision recognising their entitlement to maintenance, in application of the system of cooperation established by Chapter VII of Regulation (EC) No 4/2009 through the Central Authority in the Member State in which the person liable habitually resides.

The Department for Juvenile Justice at the Ministry of Justice (Ministero della Giustizia - Dipartimento per la Giustizia Minorile) is the Central Authority for Italy designated in application of Article 49 of Regulation (EC) No 4/2009 to recover maintenance in cross‑border disputes in the European judicial area.

14.2 If so, how can that authority or private organisation be contacted?

Italy’s Central Authority can be contacted at the following addresses:

Ministero della Giustizia, Dipartimento per la Giustizia Minorile
Via Damiano Chiesa 23
00136 Rome

Tel. +39 668188325

Fax +39 668808085

E-mail:  Link opens in new windowacitalia0409.dgm@giustizia.it

15 If I am in another country and the debtor is in this Member State:

15.1 Can I address a request directly to such an authority or private organisation in this Member State?

If a creditor is living abroad and wants to enforce in Italy a decision recognising their entitlement to maintenance, they may seek assistance from the Central Authority of the Member State in which they are living, and through that authority submit an application in accordance with Article 56, using the system of cooperation established in Chapter VII of Regulation (EC) No 4/2009.

Consequently the application may not be sent direct to Italy’s Central Authority or to other authorities or private organisations in Italy.

15.2 If so, how can that authority or private organisation be contacted and what kind of assistance can I receive?

16 Is this Member State bound by the 2007 Hague Protocol?

Yes.

17 If this Member State is not bound by the 2007 Hague Protocol, which law will be applicable to the maintenance claim according to its private international law rules? What are the corresponding private international law rules?

18 What are the rules on access to justice in cross-border cases within the EU following the structure of Chapter V of the Maintenance Regulation?

As regards access to justice in cross-border cases, the scheme provided for in Chapter V of Regulation (EC) No 4/2009 is applied directly.

In brief, this means that for applications concerning maintenance submitted using the system described in Chapter VII, arising from parentage, the following procedure is used:

-     for cases concerning recognition or recognition and declaration of enforceability of a decision and concerning enforcement of a decision issued in the Member State or already recognised, if the beneficiary is a person under the age of 21, legal aid is automatically granted, regardless of income or whether the application appears to be well founded, as required by the general rules (see section 7);

-     for other types of cases (applications for a decision to be issued or changed), if the application relates to a person under the age of 21, an assessment of whether the application is well founded is required for legal aid to be granted, but not of the person’s income;

-     if the applicant is aged over 21, they may receive legal aid if they meet the normal conditions for income and whether the application is well founded, in accordance with Italian law (see section 7).

For applications concerning maintenance that do not arise from parentage (so for applications submitted by a spouse or another person who is related to or has an affinity with the creditor), legal aid is granted if the normal conditions of income and the well-founded nature of the application are met, in accordance with Italian law (see section 7).

The criterion of continuity applies in all cases: an applicant who benefited from complete or partial legal aid in the Member State of origin is entitled to legal aid for cases brought before the courts in Italy for the recognition, enforceability or enforcement of the decision.

If the above conditions are met, Italy’s Central Authority sends the application for legal aid to the relevant Bar Council, together with any necessary documents submitted by the applicant.

The Bar Council decides whether legal aid should be granted in accordance with the criteria explained above.

19 What are the measures adopted by this Member State in order to ensure the functioning of the activities described in Article 51 of the Maintenance Regulation?

Italy’s Central Authority uses the following methods to handle cooperation requests sent in application of Chapter VII:

  • it encourages amicable solutions by sending debtors an invitation to meet their maintenance obligation voluntarily;
  • it asks debtors to contact the Central Authority to agree the procedures for settling the case;
  • it locates the debtor by accessing the database of the national register of Italian municipalities (Indice nazionale dei comuni italiani) and that of the prisons administration (Amministrazione penitenziaria), or by contacting local population registry offices;
  • it collects information about the income and assets of the debtor, with the assistance of the tax police (polizia tributaria);
  • it facilitates the obtaining of documentary evidence as stated in Article 51(2)(g) of the Regulation, in cooperation with the judicial authorities;
  • it facilitates the provision of legal aid as explained in sections 7 and 18 above.

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Last update: 16/09/2016