The first separation hearing is the moment when the judge hears the spouses and can issue immediate rules for family life while the proceedings continue. It is normal to wonder whether you must speak personally, whether it is already possible to decide where the children will live, who will remain in the family home, or what financial contribution must be paid. Another important doubt concerns the absence of the other spouse: failure to appear does not necessarily block the procedure, nor does it equal an automatic waiver of any defense.
The first hearing does not generally conclude the separation. However, it serves to establish a temporary framework that protects the children, the housing situation, and financial sustainability while awaiting the final decision. I will explain what happens, what facts truly affect the judge's choices, and what tools remain available if the conditions set at the beginning no longer work.
The first hearing in judicial separation proceedings
Judicial separation now follows a unified procedure for family disputes. A presidential phase distinct from the subsequent merits judgment is no longer opened: the president appoints the reporting judge, schedules the first appearance, and assigns the defendant spouse a deadline to enter an appearance. The initial documents must already set out claims, relevant facts, conclusions, and requested evidence.
The application is therefore not a simple request to schedule a meeting. If there are minor children or financial claims, documents regarding the income, real estate, movable property, and financial assets of the last three years must also be filed. For minor children, a parenting plan is also required, meaning a concrete description of school, activities, habits, associations, and vacations. These elements help the judge immediately decide on the most urgent rules. The regulations are contained in Articles 473-bis.12, 473-bis.14, 473-bis.16, and 473-bis.17 of the Italian Code of Civil Procedure, introduced by Legislative Decree no. 149 of 2022.
The time before the hearing also serves to complete defenses. Following the statement of defense, further briefs with tight deadlines are scheduled: the plaintiff may reply and specify claims and evidence twenty days before the hearing, the defendant may reply ten days before, and the plaintiff may indicate counter-evidence five days before. Preclusions do not prevent the judge from addressing the rights of minor children, but they make it imprudent to postpone financial or evidentiary issues without reason.
Personal appearance, hearing, and reconciliation attempt
Spouses must appear personally, barring proven serious grounds. The lawyer assists the party, but the presence of counsel does not automatically replace that of the spouse. The judge may hear the parties together or separately, in the presence of their respective counsel, and attempts reconciliation. They may also formulate a reasoned conciliation proposal without imposing an agreement.
Reconciliation does not mean that the spouses must rebuild their relationship. It may also concern an agreement on the terms of the separation: the children's time with each parent, expenses, use of the home, financial contributions, or other still controversial points. A useful agreement must be clear and workable. A generic formula regarding the children or expenses postpones the conflict rather than resolving it.
If the parties reach an agreement, the judge adopts the temporary and urgent measures that are still necessary and refers the case for a decision. If they do not conciliate, the judge proceeds to temporary regulation. Articles 473-bis.21 and 473-bis.22 of the Italian Code of Civil Procedure govern this sequence and clarify that the judge also verifies the regularity of the adversarial proceedings, meaning that both parties were able to review the application and defend themselves.
Hearing the children is a step distinct from the parents' appearance. A minor who has turned twelve, or even younger if capable of discernment, is heard when measures concerning them must be adopted; the judge may refrain from proceeding when hearing the child is contrary to their best interests, manifestly superfluous, or impossible. It is therefore neither a confrontation between the child and the parents nor a task entrusted to the minor to choose alone.
Temporary orders: what the judge can decide
If there is no conciliation, the judge issues a temporary and urgent order. The order can immediately regulate the practical aspects of the separation, within the limits of the claims brought by the spouses and in the best interests of the children. It is not the final judgment, but it is an order that the parties must comply with until it is replaced, modified, or revoked.
Specifically, the judge may establish with which parent the children will primarily stay, the times for staying with the other parent, the modalities for exchanges and communication, the contribution to their maintenance, and the allocation of expenses not included in the periodic allowance. Furthermore, the judge can regulate the use of the family home and, if requested and justified, order financial contributions between the spouses. Temporariness does not make these rules optional.
When imposing a financial contribution, the judge indicates when it takes effect. The law also allows the judge to make its effects date back to the date of the application. This point affects back payments: it is incorrect to assume that the obligation always begins on the day of the hearing or, conversely, always from the filing of the application. The exact effective date indicated in the order must be read.
The order is immediately enforceable to obtain compliance. Article 473-bis.22 of the Italian Code of Civil Procedure grants it the efficacy of an enforceable title and a title for registering judicial mortgage. The measure remains effective even if the proceedings are extinguished, until another measure replaces it. In the same order, the judge rules on the evidence to be admitted and organizes the continuation of the case.
A complaint against temporary and urgent measures is possible before the court of appeal, but the deadline is short: ten days from the pronouncement at the hearing, from communication, or from notification if prior. The complaint deadline does not coincide with a generic change of heart. Instead, supervening circumstances must be presented to the judge handling the case, pursuant to Articles 473-bis.23 and 473-bis.24 of the Italian Code of Civil Procedure.
Children: custody, parenting time, and maintenance
The starting point is the concrete best interests of the children. Article 337-ter of the Italian Civil Code requires the judge to primarily assess joint custody with both parents and to establish the times and modalities of their presence with each. Joint custody does not necessarily mean an identical division of days, nor does it entail that every daily decision requires prior agreement.
The measure must make the children's daily routine recognizable: where they spend school days, how overnight stays and vacations are organized, and how medical appointments and important information are managed. The continuity of the minor's life counts, not the abstract interest of one parent or the other. The age of the children, their habits, distances, actual working hours, and the parents' ability to coordinate can lead to different solutions.
The child maintenance contribution is not determined solely by comparing two salaries. The law considers the child's current needs, the standard of living enjoyed during cohabitation, the time spent with each parent, the resources of both, and the economic value of care and domestic work. The regulatory reference is Article 337-ter of the Italian Civil Code.
Time spent with a parent does not eliminate the allowance on its own. Even with a broad schedule and joint custody, it may be necessary to rebalance resources if financial availability and incurred expenses are very different. Likewise, an allowance does not justify excluding the other parent from important decisions regarding education, health, upbringing, and habitual residence.
Family home and financial contributions between spouses
The assignment of the family home protects the children above all. Article 337-sexies of the Italian Civil Code establishes that the right to inhabit the home must be awarded by prioritizing their best interests. The decision can therefore allow the children to continue living in the home where they have their habits, with the parent with whom they primarily reside.
The assignment does not transfer ownership of the property. If the house is registered in the name of only one spouse, this fact remains relevant in property relations, but it does not solely decide who may live in it during the separation. Ownership and enjoyment of the home are different issues. The judge also takes the assignment into account when regulating economic aspects between the parents.
When there are no children making housing continuity necessary, the issue cannot be addressed as if the assignment were a way to compensate for the economically weaker position of the spouse. In that case, the title by which the property is occupied, existing agreements, and the claims concretely formulated in the proceedings become central. Child maintenance and spouse maintenance follow different criteria. The contribution for children serves to satisfy their needs according to the criteria of Article 337-ter of the Italian Civil Code. Maintenance between spouses instead concerns the conditions provided by Article 156 of the Italian Civil Code and cannot be confused with the expenses of the offspring. At the first hearing, the judge may set a temporary amount; the final determination then requires distinguishing incomes, assets, any requested assignment of fault (addebito), and other relevant facts.
If the other spouse does not appear at the hearing
The absence of the defendant spouse does not automatically result in the acceptance of the claims. First, the judge must verify that the application and decree have been correctly notified and that the adversarial proceedings are regular. If this check is positive, the proceedings may continue, and the judge may adopt the necessary temporary measures even in the absence of the other party.
Failure to appear personally without a justified reason may be assessed by the judge together with the other elements of the proceedings and in the decision on costs. Furthermore, when ordering a financial contribution, Article 473-bis.22 of the Italian Code of Civil Procedure expressly provides that the judge shall rule even if a party fails to appear without a justified reason. Not showing up therefore does not prevent immediate decisions regarding children, the home, or contributions.
The situation changes if the party who initiated the proceedings fails to appear. In that case, if the defendant spouse has entered an appearance but does not request that the case continue despite the plaintiff's absence, the proceedings are extinguished. This is a consequence different from the defendant's default and demonstrates why it is unhelpful to speak generically of a "skipped hearing".
Before the hearing, it is useful to have the application, the scheduling decree, proof of notification, and economic documents already filed available. If children are involved, a concrete proposal regarding their schedule and expenses also helps. Precision on daily facts avoids overly abstract requests. If you receive an order or communication with a short deadline, you can contact me to identify the applicable procedural step.
Agreement, modification, and continuation of the case
An agreement can be reached even after the application has been filed. If the spouses manage to define the conditions of the separation, the judge verifies that the agreements respect the interests of the children and adopts the necessary measures. In joint applications, the rules of Article 473-bis.51 of the Italian Code of Civil Procedure also allow requesting, already in the application, the substitution of the hearing with written notes, declaring no intention to reconcile and filing the required documentation.
If there is no agreement, the case continues with the admitted evidence and further hearings. However, the judge may modify or revoke temporary measures if supervening facts or new investigative findings emerge. Modification requires a concrete change. For example, a new stable need of the child, a documented change in financial resources, or a fact that renders the original schedule inadequate may count.
Legislative Decree No. 164 of 2024 entered into force on 26 November 2024. However, its transitional rules in Article 7 generally apply, subject to specific exceptions, to proceedings commenced after 28 February 2023. The hearing date alone therefore does not identify the applicable rules: the commencement date, type of measure and any statutory exceptions must also be considered.
Frequently asked questions
Must I appear personally at the first separation hearing?
Yes, personal appearance is generally required. The lawyer assists the spouse but does not automatically replace their presence. Absence is permitted for proven serious grounds; if a justification is missing, the judge may assess the conduct in the proceedings and in the award of costs.
What happens if the other spouse does not show up?
The proceedings can continue if notification is regular. The judge first verifies that the other spouse has correctly received the application and decree. If positive, they can adopt temporary measures regarding the children, the home, and financial contributions; however, absence does not entail the automatic acceptance of every request.
Can the judge assign the family home even if it is registered in the other spouse's name?
Yes, registration does not exclude the assignment of enjoyment. The priority indicated by Article 337-sexies of the Italian Civil Code is the children's interest in maintaining, when appropriate, the continuity of the domestic environment. The assignment does not transfer ownership and may affect overall financial regulation.
When does the temporary allowance ordered at the hearing take effect?
The judge's order establishes this. For financial contributions, the judge must indicate the effective date and can make it retroactive to the date of the application. To know if there are back payments, remembering the day of the hearing is not enough: the operative part of the measure must be read.
Can I ask to modify the conditions set at the first hearing?
Yes, but supervening facts or new findings are needed. A stable change in the children's needs, care schedules, or financial situation can justify a modification or revocation. Simple dissatisfaction with the initial arrangement, without new elements, is not in itself a sufficient prerequisite.