For centuries, human society is based the insolubility of marriage. The institute in question is served not only to satisfy the desires of procreation and creation emotional feelings of people but also to strengthen political and military alliances.
The fundamental role in this context was exercised by religion, it is thanks to its legitimacy, derived from a powerful caste of priests, invested their power directly from the supreme deity, he could easily control the behavior of the population (1).
This fabulous mechanism is in crisis in the post-Second World War, in which a number of factors, including the industrial revolution, the more wages obtained by women and their own emancipation, led the law on December 1 1970, no 898 entitled " Discipline of the cases of dissolution of marriage ", or the institution of divorce.
In this historical moment, our legal system recognizes the rights of the family as a natural society founded on marriage (Article 29 of the Constitution). Despite this increasingly this institution appears to be degraded in the face of growing demand for separation and divorce, as the ISTAT surveys show that between 1996 and 2006, the latter grew by 51.4%.
The data is significant from a sociological profile, demonstrating that the volitional element, expressed by most of the Italian population, is to opt for a departure from previous status of spouse and agree on a new-found freedom " of do's and don'ts ".
Given this context, of course, also increase the requests for judicial separation. It with the reform of family law of 1975 has been copiously amended. Earlier this institution could be invoked before the courts only when there had been culpable conduct attributable to the other spouse.
reform in the legislature has eliminated the subjective element is identified in the wrongful conduct of the spouse, whether the assumptions that were previously designated as required under penalty of improponibilità of pronunciation. The current provision provides that the separation can be claimed when they occur, even beyond the control of either or both spouses, the facts which render intolerable the continued cohabitation or be seriously prejudicial to the education of children (Article . 151 cc). These behaviors can be identified when the conduct of a spouse causes serious damage to the ' physical or moral or the freedom of the other spouse or partner (Article 342 - bis cc).
The legislature has also ', held that the judge pronouncing the separation, states that met the circumstances and it is requested, which is responsible for the separation of the spouses in consideration of his conduct contrary to obligations arising from the marriage (art. 155, comma 2, cc).
Part of the doctrine considers that this legislation is a manifestation of the previous penalty, although there are significant differences (1). First, you can not achieve separation to be charged when a spouse is not merely to fulfill marital duties, but rather 'it is necessary to verify the causative link between the negligent conduct el'intollerabilità coexistence, because only where there is this latter circumstance may be invoked (and obtaining ) separation and charge (2).
The law states that in cases of adultery, there may be separation and charge only in case of infidelity, has been repeated over time, and have caused serious harm to the couple or their offspring, or even in the case of courtship in place by one spouse against a third have not found concrete expression (3) . The charge separation can be invoked, in addition, where one spouse has adopted an attitude of cold, detached and devoid of attention to the other spouse, or in cases where for example the husband does not allow his wife to keep their relationships affective with his family of origin (4) . Of course there is the fact that even when for example the husband has offended the dignity or physical integrity of his wife, think of cases of abuse in the family (art. 572 Criminal Code) or to cases of abuse (art. 594 cp).
contrast to the case law (and the doctrine of majority) did not consider that you could configure the charge separation in cases where one spouse had changed his religion, since that right is guarded by the constitution (Article 19 of the Constitution) . In a similar vein, the courts have been rejecting the demand charge, in cases of abandonment of the conjugal roof dictated by undue interference from the mother-in-law put in place (5) .
NOTE:
(1) SACCO, Anthropology legal Bologna, Il Mulino, 2007; Rouland, Legal Anthropology , Giuffrè, Milano, 1992
(2) ; SIXTH, Handbook of family law , Cedam, Padova, 2009, pg. 135
(3) SIXTH, Handbook of family law , Cedam, Padova, 2009, pg. 136
(4) SIXTH, Handbook of family law , Cedam, Padova, 2009, pg. 136
(5) SIXTH, Handbook of family law , Cedam, Padova, 2009, pg . 137
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