Dealing with a separation or divorce can make even a very concrete choice difficult: understanding whether it is possible to support the procedure with legal aid at the State's expense, often referred to as free legal aid. The doubt does not concern only one's own salary. Cohabitation still in progress, the incomes of other family members, a recently lost job, and the difference between an agreement already reached and a lawsuit in which issues remain open can all count.
On this page I want to help you distinguish real requirements from simplifications that risk creating errors. I will explain which income goes into the application, what changes if the spouses are still in the same home, where to submit the request for a proceeding before the Court of Milan, and why the admission of one party does not automatically extend to the other.
What state-funded legal aid is
It is not an automatic discount. State-funded legal aid is the system provided to allow defense in court for those whose income is within the limit set by the law. In the civil sector, it can be requested both for a lawsuit already started and before initiating one. The application must therefore indicate a specific proceeding and the reasons for the request or defense, not just a situation of economic difficulty.
Separation and divorce fall within the civil sphere. The benefit may concern consensual separation, judicial separation, joint divorce, and contested divorce. The presence of an agreement does not exclude legal aid; likewise, the existence of a dispute is not enough on its own to obtain it. The economic requirement and a request that the Bar Council can consider admissible and well-founded in its essential elements remain necessary.
The application is personal. Even if the spouses file a joint petition and share the conditions regarding children, housing, and maintenance, each maintains their own position with regard to legal aid. Whoever possesses the requirements submits their own application; the spouse who does not possess them does not become admitted simply because they participate in the same proceeding.
The benefit does not decide the lawsuit. Admission serves to make legal assistance possible according to the rules of the consolidated text on justice expenses. It does not anticipate the judgment on the conditions of separation or divorce, nor does it establish who is right regarding child custody, financial contributions, the family home, or other requests. These aspects remain entrusted to the validly reached agreement or the judge's decision.
The economic requirement: threshold and relevant incomes
The indicated threshold is 13,659.64 euros. The decree of the Ministry of Justice dated April 22, 2025, updated the limit of Article 76, paragraph 1, of Presidential Decree No. 115 of 2002 to this amount. The limit is adjusted periodically: for a concrete application, it is prudent to check that a new update has not intervened before filing. Decree of April 22, 2025 on the income limit
The ISEE does not replace the required data. The discipline refers to the taxable income for IRPEF purposes resulting from the last tax return. Incomes exempt from IRPEF and those subject to withholding tax as a final tax or substitute tax must also be considered. For this reason, a low ISEE, a reduced bank balance, or simply the absence of a current salary do not allow, on their own, to conclude that the requirement is met.
The tax return is the starting point. The last tax return remains the reference provided by law, but it must not be read as an isolated and immutable datum. The Constitutional Court, recalling case law, has reiterated that even a decrease in income subsequent to the tax return can be taken into consideration for admission purposes. Job loss or a significant reduction in earnings must therefore be represented with precision, without assuming that it is enough to automatically overcome the requirement. Constitutional Court Order No. 153 of 2016
Completeness and truthfulness are indispensable. The application requires declaring assessable incomes and the relevant family situation. Omitting income because it does not appear in the normal IRPEF taxable base, or presenting an economic variation that has not yet been explained as definitive, can expose the request to checks and consequences regarding the benefit. The problem is not to demonstrate generically that one is in difficulty, but to indicate data consistent with the envisaged criterion.
The other spouse's income is not always added
Cohabitation does not erase conflict. Ordinarily, if the applicant lives with the spouse or other family members, the incomes of the cohabiting family unit are added together. Article 76, paragraph 4, of Presidential Decree No. 115 of 2002, however, provides for reference to personal income alone when there is a conflict of interest with other members of the cohabiting family unit. Separation and divorce are precisely proceedings in which spouses may have opposing interests.
The other spouse's income may be excluded. The Court of Cassation has specified, with reference to a consensual separation, that the income of the other spouse in a conflict of interest must be excluded from the cumulation, not that of all cohabiting children. This is an important distinction: continuing to live in the same home does not transform the counterpart's salary into a resource to be automatically added, but it does not render other family incomes that the rule requires to be considered irrelevant. Court of Cassation Review on Judgment No. 20385 of 2019
The decisive fact is the position in the proceeding. It is not enough to declare that one is de facto separated, nor is it necessary to wait for a different registered residence to recognize that the lawsuit opposes the spouses. What matters is the content of the proceeding for which legal aid is requested. If the application concerns a separation or a divorce between them, the conflict has a precise relevance; if it concerns another lawsuit, the rule on personal income requires a different verification.
Agreement, judicial lawsuit, and transition to divorce
Agreement can coexist with legal aid. In consensual separation or joint divorce, the spouses have already defined the conditions to be submitted to the judge. The understanding may concern the children, their maintenance, the use of the home, any allowances, and the division of other commitments. Legal aid remains possible, but it does not transform a joint application into a common benefit: the economic conditions and the requests of the two spouses remain distinct.
The judicial lawsuit requires a concrete request. If an agreement is lacking, the proceeding may concern one or more specific points: placement of children, visitation schedules, maintenance contributions, assignment of the family home, or property aspects. Legal aid does not finance a generic opposition. It is necessary to state what requests are being made, what facts they are based on, and what documents can support them.
Separation and divorce are not the same stage. Separation does not dissolve the marriage; divorce determines the dissolution of civil marriage or the cessation of the civil effects of concordat marriage. To request legal aid in divorce, it is therefore also necessary to identify the prerequisite that allows proceeding after separation. The previous judicial ruling or separation agreement is not a formal attachment: it serves to explain why the divorce can be introduced and what conditions are eventually already in force.
How to submit the application for a proceeding in Milan
The application goes to the competent Bar Council. For civil disputes before the Court of Milan, institutional indications provide for submission to the secretariat of the competent Bar Council. The application may concern both a pending lawsuit and a lawsuit yet to be initiated. Court of Milan page on civil state-funded legal aid
The request must identify the matter. If the petition has already been filed, the elements useful for identifying the lawsuit must be reported. If the proceeding has not yet begun, the application must indicate against whom action is intended, what request is being proposed, and the reasons of fact and law supporting it. A generic formula such as "I want to separate" does not clarify, on its own, either the request or the aspects on which the judge will have to intervene.
Documents must prove what matters. The last tax return and information on additional income are central to the economic requirement. For separation, the marriage certificate or act and the elements explaining the required conditions may be pertinent. For divorce, the separation order or the agreement constituting its prerequisite also gains relevance. When discussing children, housing, or maintenance, documents connected precisely to those facts are needed.
The Council acts within indicated times. The Court of Milan page reports that the Bar Council acts within ten days of the presentation or receipt of the application and may accept it, reject it, or declare it inadmissible. In case of a negative outcome, there are remedies that require attention to deadlines; it is not useful to let communications pass without understanding what measure was adopted and what step is still permitted.
What changes after admission
Counsel must be enrolled in the lists of lawyers authorised to provide state-funded legal aid. A lawyer enrolled in another district may also be chosen, as permitted by Article 80 of Presidential Decree No. 115 of 2002. It is useful to clarify at the outset whether the appointment concerns separation, divorce or modification of existing arrangements: the proceedings identified in the application define its scope.
An admission does not automatically cover every new lawsuit. The separation and divorce proceedings are distinct; the same applies, as a rule, to a subsequent request to modify conditions when incomes, children's needs, or housing arrangements change. The Court of Milan page points out that admission also operates in subsequent instances of the judgment, but adds that the party who remained unsuccessful cannot use the benefit to propose an appeal. It is therefore necessary to distinguish the degree of the same lawsuit from a new initiative.
A single admitted party does not exempt the other party. In joint proceedings, the uniform contribution is not automatically split between the State and the non-admitted spouse. The Ministry of Justice has clarified that, if in a consensual separation or a joint divorce only one of the spouses is admitted, the entire uniform contribution is owed by the other spouse who does not benefit from the regime. Ministerial clarification on the uniform contribution in joint proceedings
Frequently asked questions
Can I request free legal aid for a consensual separation?
Yes, it is possible. An agreement between spouses does not exclude state-funded legal aid. However, the economic requirement and the other prerequisites of the application must be met. Each spouse submits their own application for their own position: the admission of one does not automatically grant the benefit to the other as well.
Does my spouse's income count if we still live in the same house?
In a lawsuit between spouses, not automatically. The conflict of interest in separation or divorce allows reference to be made to the applicant's personal income with respect to the counterpart spouse. However, other incomes of the family unit that the discipline requires to be considered remain relevant, including those of cohabiting children when the relative prerequisites are met.
Do I have to submit the ISEE for state-funded legal aid?
The ISEE is not the envisaged parameter. The law considers the IRPEF taxable income resulting from the last tax return, in addition to exempt incomes and those subject to withholding tax as a final tax or substitute tax. The ISEE can be useful in other contexts, but it does not replace the income declarations required for admission.
Can I submit the application if the petition has already been filed?
Yes, the application may concern a pending lawsuit. In this case, it must allow precise identification of the proceeding. If the petition has not yet been filed, it is necessary instead to describe the request to be proposed, the counterpart, and the essential reasons on which it is based.
Does one spouse's free legal aid also cover the other's uniform contribution?
No, in joint proceedings the position remains distinct. The clarification by the Ministry of Justice establishes that, if only one of the spouses is admitted to legal aid in a consensual separation or a joint divorce, the entire uniform contribution is owed by the spouse who does not benefit from the booking to debit.
A starting point for the application
The application must correspond to the real situation. To orient yourself, gather your last tax return, data on other relevant earnings, information on cohabitation, and the documents explaining the proceeding: marriage and conditions required for separation, or previous separation and divorce application. If you want to clarify whether these elements allow you to correctly set up an application for your proceeding in Milan, you can contact me.