Legal lines: in case of divorce
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Legal lines: in case of divorce

International lawyer Michele Capecchi addresses issues around divorce.

Tue 28 Mar 2017 12:44 PM

In this article, The Florentine’s legal columnist and international lawyer Michele Capecchi addresses many of the issues raised at the Round Table on Violence Against Women, held on March 16 at St. Mark’s English Church in Florence, organized by Lynn and Tessa Cole in collaboration with anti-violence center Associazione Artemisia.

Q: I married an Italian citizen. If we get divorced, can I remain in Italy?
A: According to Italian Legislative Decree no. 30/2007, a non-European Union citizen who marries a EU citizen (or with a person who already has a long-term permit of stay in the EU) has the right to request and obtain a permit to stay for family reasons.

Q: What about same-sex civil unions?
A: The same right is also recognized in Italy for same-sex couples who decide to formalize their relationship in a “civil union”. Italy has recognized same-sex civil unions since June 5, 2016, providing same-sex couples with most of the legal protections as married couples. Therefore, a non-EU partner of a civil union can apply for a family permit to stay if his/her partner is Italian (or has a long-term permit to stay).

Q: What happens to that family permit to stay in case of separation? Can the spouse keep that permit of stay in case of divorce?
A: The answer depends on the length of the relationship and whether the couple has children or not. According to Article 12 of the Decree 30/2007, the divorce does not determine the loss of the right to stay of the spouse who is not a member of the EU if that spouse has acquired the permanent residence card for family members (after five years of permanency in Italy) or if one of the following conditions apply:

  1. The couple has been married for at least 3 years (one of which spent in Italy) before they submitted the application for the divorce;
  2. The non-EU spouse has obtained custody of the couple’s children, agreeing to keep the children in Italy;
  3. The non-EU spouse is taking part in a criminal trial as a victim of familial crimes committed by the other spouse (or has taken part in a trial where the European spouse has been found guilty for familial crimes);
  4. The divorce ruling awarded visitation rights in Italy to the non-custodial parent (non-EU citizen). In this case, the parent who does not have custody of the children keeps the family permit to stay only if the judge who decides the divorce also decides that the visits to the minor must take place in Italy.

In all these cases, even without five years of marriage, the divorce will not affect the right of the non-EU citizen to keep the permit to stay, and also to renew it, as clearly stated also by the Italian Supreme Court in a recent decision on this topic, no. 19893/2010. In all the aforementioned cases, there is another condition that must be met in order for the permit to stay to be renewed: the divorced (non-UE) spouse must have a job (employed or self-employed) or must have sufficient resources (even through alimony) for his/her and for the children.

Q: What happens to a non-EU citizen who gets separated after two years and does not have any children?
A: Article 30 of the Consolidated Law on Immigration no. 286/98 states that in case of legal separation (without mentioning a minimum number of years of marriage) the permit to stay can be converted into a work permit (employed or self-employed). In other words, if the marriage was too short to keep the original family permit to stay and if there are not children involved, then the government still authorizes the non-EU spouse to stay in Italy if she/he can find a job and convert his/her permit accordingly. In this case, the conversion is not automatic, and it is the duty of the person who wants to stay in Italy to request this conversion of his/her original family permit, compiling all the paperwork needed to obtain the conversion (outside the limits of the “quotas”) these other permits to stay.

Q: I’m a foreign woman who has been a victim of family violence. I’m afraid that I’ll be thrown out of Italy if I separate from my husband.
A: Italian legislators have enacted a special permit to stay for victims of violence (art. 18bis of the Consolidated Law on Immigration no. 286/98). Victims of domestic violence perpetrated in Italy by their partners can request a special permit to stay for humanitarian reasons if they report such behavior. To obtain this permit you must inform the police of the violence or abuse perpetrated (such as mistreatment, personal injury, kidnapping, sexual violence, stalking, etc.) and the permit will granted by the immigration authorities upon the consent of the public prosecutor who will pursue the investigations as long as there is evidence of a tangible risk for the woman or other members of her family.

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