The Italian Supreme Court has turned its attention once again to the issue of the immediate enforceability of judicial provisions reassessing the terms of a divorce which have been issued by a Court in chambers, as provided for under article 9 of Law No. 898 of 1970, as amended by Law No. 74 of 1987, since article 4 of Law 898/70 provides that such measure is immediately enforceable, whereas article 741 Code of the Italian Code Civil Procedure provides that such enforceability is subjected to a petition being brought.
This issue of the enforceability of judicial provisions revising the terms of a divorce has become all the more urgent in the light of the fact that – with the latest version article 282 of the Italian Code of Civil Procedure introduced by article 33 of Law 26 November 1990 n. 353, – judgments of first instance handed down in ordinary civil judgments have become enforceable by law, whereas article 741 Code of Code of Civil Procedure – which states that in chambers judicial provisions are not immediately enforceable – has remained unchanged.
The Supreme Court judges opined that there was an evident contradiction since it was generally agreed that the recourse to in chambers proceedings was inspired – both in the case of the revision of the conditions of a divorce (Law No. 74 dated March 6, 1987 amending article. 9 of Law no. 898 of 1970) and in the case of the revision of the conditions of separation (Law No. 331 dated July 29, 1988) – to the need for greater rapidity in regulating the spouses’ personal matters and property, as well as matters concerning their offspring. The ordinary civil procedure rules would, however, seem to be more in line with the special needs that divorce and separation proceedings present (which Italian legislators were pursuing with the reform introduced by them with Law No. 74 of 1987) than in chambers procedures (which appeared in 1987 to be quicker and effective).
The Italian Supreme Court established, therefore, the following principle of law: As a matter of law that, it is hereby established that a judicial decree revising – pursuant to article 9 of Law no. December 1, 1970 n. 898, – the provisions concerning the custody of children, as well as the extent and manner in which contributions are to be paid following the dissolution and termination of the effects of a marriage, shall be enforceable immediately, in accordance with the more general rule, provided for under article. 4 of the aforementioned Law and contrary to the provision set forth in article 741 of the Italian Code of Civil Procedure, which subjects the enforceability of any “in chambers” decree to the expiry of the term for the lodging of an appeal.
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