Choosing the competent court is one of the first practical steps in a separation or divorce. It may seem natural to turn to the court of the city where you lived together, where the family home is located, or where the person filing the application lives. However, the rules change if there are minor children, if one of them has recently relocated, or if the spouses intend to file a joint application.
I want to help you distinguish these cases without confusing registered residence with the place where a child actually lives. We will see when the child's habitual residence matters, which criterion applies if there are no minor children, what the joint application allows, and why a change of address shortly before filing does not automatically determine jurisdiction.
When there are minor children, the place where they live matters
For separation and divorce involving minor children, the competent court is identified based on the child's habitual residence. Article 473-bis.47 of the Italian Code of Civil Procedure in fact refers to Article 473-bis.11: this criterion also applies to requests to modify previously established conditions, such as visitation schedules, maintenance, or parental responsibility.
Jurisdiction follows the center of the child's life, not the preference of the parent who files first, nor solely the location of the former family home. The rules currently provided by Articles 473-bis.47 and 473-bis.51 stem from Legislative Decree no. 164 of 2024 published on Normattiva, which entered into force on November 26, 2024.
Therefore, looking only at the parents' addresses is not enough. One spouse may still live in the family home while the other has moved for work. If the child lives stably in a third city or with the relocated parent, attends school there, and carries out their daily life there, that place may be the relevant one for contentious proceedings.
The decisive moment is the filing of the application. The court must be identified in relation to the situation existing when the petition is filed. A subsequent change in the child's life does not render irrelevant the place that constituted their habitual residence at the start of the proceedings, without prejudice to the rules applicable to new requests or subsequent proceedings.
Habitual residence: not just registered data
Habitual residence indicates the actual and stable living place of the minor. Population registry registration is an important element, but it does not replace the verification of daily reality. The report by the Court of Cassation on the family trial reform links this criterion to the place that, in practice, represents the center of the child's life at the time of the petition: the document is available in the report of the Court of Cassation on family procedural rules.
An actual relocation leaves concrete traces. Relevance may be assumed by the continuity of housing, the school attended, healthcare, the ordinary organization of the day, and family and social relationships. None of these elements is automatic proof: what matters is whether, considered together, they describe a presence that is neither temporary nor occasional.
A change in registered residence does not settle the issue on its own. If it coincides with a real and lasting relocation, it is consistent with the new situation. If, however, the child continues to live, study, and carry out ordinary activities in the previous place, or if the new accommodation is temporary, the registered data may not represent their actual center of life.
A fictitious residence is not presumed solely from a quick move. Not every move to a relative's home is simulated, and not every change close to the filing date is artificial. However, a mere registry formality carried out to choose a more favorable court is not enough to transform the place indicated in the records into the child's habitual residence. This distinction prevents jurisdiction from depending on a unilateral choice.
If there are no minor children, the reference point is the respondent spouse
In the absence of minor children, if only one spouse files the application, the court of the place of residence or domicile of the respondent has jurisdiction. The respondent is the person against whom the petition is brought. Domicile, in a civil law sense, is the principal seat of a person's business and interests and may not coincide with their registered residence.
The former family home is not an autonomous criterion. It may coincide with the residence or domicile of the respondent spouse, but it is not enough to invoke the address where the couple used to live if the other spouse no longer lives there and does not maintain their domicile there. Nor does the residence of the party initiating the proceedings make the court of their living place competent for this sole reason.
The law provides a substitute criterion in specific situations. If the respondent is untraceable or resides abroad, the application may be brought before the court of the place of residence or domicile of the applicant. If the applicant also resides abroad, any court of the Republic may be seized. These are exceptions expressly provided for by Article 473-bis.47, not a free choice among multiple courts.
The joint application allows for limited choice
With a joint application, spouses may turn to the court of the place of residence or domicile of either party. Article 473-bis.51 of the Code of Civil Procedure sets this rule for the proceedings indicated in Article 473-bis.47, including separation, divorce, and joint requests to modify conditions.
Agreement and jurisdiction are different issues. Spouses may reach an understanding regarding children, housing, financial contributions, or other aspects of the family crisis; they must nevertheless file the petition before one of the courts connected to the residence or domicile of one of them. It is not possible, however, to choose a judicial office lacking any connection with both parties simply for convenience.
The joint form requires a genuine agreement. If one of the spouses does not share the conditions of the petition or fails to confirm the understanding, the proceeding cannot be treated as a joint application. If one acts alone, the criterion provided for contentious proceedings becomes applicable: the child's habitual residence, when there are minor children, or the respondent's residence or domicile in other cases.
Relocation of the minor: the one-year rule
An unauthorized relocation does not immediately shift the competent court. Article 473-bis.11 establishes that if the minor has been relocated without authorization and one year has not elapsed, the court of the place of their last habitual residence prior to the relocation remains competent. This rule prevents a unilateral move from immediately determining the judge called upon to decide family matters.
The year is not a simple waiting period after a change of address. The rule operates when an unauthorized relocation and the failure of one year to elapse occur together. The Court of Cassation specified, by order no. 11622 of May 3, 2025, that the previous jurisdiction remains fixed within such a period even if an environment with characteristics of stability has been created in the new location; the ruling is referenced in the June 2025 review of the Court of Cassation.
An agreed relocation poses a different problem. If both parents shared the change and the minor has effectively built their life in the new city, the new habitual residence may assume relevance. However, the passage of a few weeks, considered in isolation, does not make this conclusion automatic: a distinction must be made between temporary accommodation and concrete rooting.
If another State comes into play, the issue is not only territorial. Before identifying the Italian court, it may be necessary to establish which State has jurisdiction over the separation or decisions concerning the minor. In the European Union, Regulation (EU) 2019/1111 contains specific rules for matrimonial matters and parental responsibility, which can be consulted in the text of Regulation (EU) 2019/1111 on EUR-Lex.
Facts guiding the choice before filing
The correct application starts from current facts. First, it is necessary to understand whether there are minor children, where they actually live, whether a relocation is recent and shared, and whether there is an actual agreement to file a joint petition. These are different pieces of information, but each leads to a different jurisdictional criterion.
Documents serve to explain a precise fact. A certificate of residence can confirm an address, but it alone does not prove the center of the child's life. Similarly, when there are no minors, a registered address must be distinguished from the respondent spouse's domicile if the two situations do not coincide.
Choosing a forum simply because it is more convenient is a mistake to avoid. The city of marriage, proximity to one's lawyer, or the existence of the family home in a certain place do not replace the legal criterion. The useful question is: which connection provided by law corresponds to the family situation and the form, joint or contentious, of the proceeding?
Frequently asked questions
Can I file for separation in the court of the city where I live?
Not always. If the application is contentious and there are minor children, their habitual residence counts first, not that of the parent filing the petition. If there are no minor children, the ordinary criterion is the residence or domicile of the respondent spouse. In a joint application, however, it is possible to choose the court of the residence or domicile of either party.
Does the child's registered residence alone decide the court?
No, it is an element but not the only one. The law looks at the minor's habitual residence, meaning the place where their life takes place concretely and stably. If the registry change corresponds to actual dwelling, it is data consistent with the criterion. If it describes a temporary or non-real situation, it is not enough on its own to resolve the issue.
If my child has recently relocated, must I use the court of the new city?
It depends on the nature of the relocation. A truly stable and shared change can lead to identifying the new place of habitual residence. If, on the other hand, the relocation is unauthorized and one year has not elapsed, Article 473-bis.11 keeps the court of the minor's last habitual residence prior to the move competent.
Can we freely choose the court if we agree?
The choice is not unlimited. In a joint petition for separation or divorce, the law allows for seizing the court of the place of residence or domicile of either party. It does not allow choosing a court without any connection to both simply because it appears more convenient or closer to family and acquaintances.
What changes if we have an adult child but no minor children?
The presence of minor children is what matters for this criterion. If there are no minor children and the petition is filed by only one spouse, the rule of the respondent's residence or domicile applies. The situation of an adult child may be relevant for other requests or financial agreements, but it does not replace the territorial criterion provided by Article 473-bis.47.
An initial choice that avoids misunderstandings
Identifying the right court means distinguishing different facts. The child's habitual residence, the nature and date of the relocation, the position of the respondent spouse, and the presence of an agreement are elements with different consequences. If the minor's living place is contested or the relocation creates doubts, you can contact me to clarify which criterion applies before filing the petition.