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Court orders issued by the president of the court in separation and divorce proceedings: appeals and/or applications for setting aside such orders

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It is a well-known fact that article 2 of Law no. 54 dated February 8, 2006 has  specifically provided for the possibility of lodging appeals against court orders issued by the President of the Court in separation and divorce proceedings, thus remedying the previous situation in which there was an absence of provisions of law regulating such aspect.

The provision contained in article 708, paragraph four of the Italian Code of Civil Procedure has, therefore, recognized as being admissible the lodging of appeals against the aforementioned decrees, thus introducing a procedure for controlling such court orders.

The appeal has to be lodged within a peremptory term of ten days from the date upon which notice of the President’s decree is served upon the appellant or, in the event that such notice is not served, within the longer term provided for under article 327 of the Italian Code of Civil Procedure.

It is debated whether or not an application for the setting aside of the President’s decree may also be lodged pursuant to article 709, paragraph four of the Italian Code of Civil Procedure.

Such application must be submitted to the judge examining the separation and divorce proceedings in question (such judge should not be the President of the Court).

Such application does not have to be lodged within the peremptory term within which appeals must be lodged and may be filed at any point of the proceedings on the grounds that new facts or facts that have not been so far submitted in the proceedings have arisen.

Such application for revocation is considered to be an alternative remedy to that of lodging an appeal.

The intrinsically interlocutory and provisional nature of decrees issued by the President of the Court (which can be amended during the course of the separation and divorce proceedings) necessarily has, however, a negative impact on the effectiveness of appeal proceedings, since it has the effect of making the lodging of such appeals substantially pointless.

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