In the field of Private Investigations aimed at gathering information requested by private citizens, the AIRO Investigative Institute provides its resources and expertise for investigations related to separations and divorces.
The purpose of Private Investigations in the context of separations and divorces is the collection of evidence that can be used in court. The investigation is developed following the creation of an investigative project that has a dual objective: to ensure effective results and to optimize the cost for the client.

The investigative activity in this area concerns four fundamental themes:

  • Violation of marital duties

"With marriage, the husband and wife acquire the same rights and assume the same duties. From marriage arises the mutual obligation of fidelity, moral and material assistance, collaboration in the interest of the family, and cohabitation. Both spouses are required, each in relation to their own means and their capacity for professional or domestic work, to contribute to the needs of the family" (Art. 143 c.c.). Following the investigations carried out, the AIRO investigative institute will produce a report that can also be used in court. Being able to prove the violation of marital duties - including the spouse's infidelity - through certain evidence, can result in the attribution of separation to the subject of the investigation. The pronouncement of attribution can lead to the loss of the right to maintenance or a different quantification of the divorce allowance and succession rights for the "guilty" spouse. The latter may be entitled to alimony, where the conditions provided for by Art. 438 c.c. are met.

  • Certification of the financial condition and standard of living for the determination or redetermination of the divorce allowance

The quantification of the maintenance allowance (now divorce allowance) occurs when the judge recognizes that one of the ex-spouses is in an economically disadvantaged situation compared to the other, in order to ensure both self-sufficiency and economic independence. Furthermore, if the separation is attributable to only one of the two spouses, the law provides that the judge, pronouncing the separation, establishes in favor of the spouse to whom the separation is not attributable the right to receive from the other spouse what is necessary for their maintenance, if they do not have adequate income of their own.” (Art. 156 c.c.). According to the law, the calculation is made in relation to the circumstances and the income of the obligor. The amount of the maintenance allowance can also undergo changes over time through a request for revision when the financial conditions of the obligor change. There may be, depending on the case, an increase, a decrease, or the cancellation of the established amount. In this case, it is particularly important to be able to demonstrate in court what the real assets and lifestyle of the ex-spouse are. The investigative activity allows documenting the financial condition, the actual working situation of the ex-spouse (even if undeclared), and the real lifestyle through complete and accurate documentation. It is also possible to ascertain and prove cohabitation more uxorio - an affectionate relationship that binds two people in a life partnership without the bond of marriage. All activities carried out and documents, together with testimonies, photographs, and videos, will be collected in a report usable in court.

  • Documentation of the parent's incapacity or inadequacy (total or partial) in relation to the predominant or exclusive custody of the children

It is now an established practice that the separation of spouses with minor children involves joint custody. However, it is possible for the judge, if they believe that "custody by the other is contrary to the interest of the minor" (Art. 155 bis C.c.), to order, through a reasoned decision, predominant or exclusive custody to one parent. The law does not specify the cases in which one of the spouses may be considered a danger to the minor, also excluding the possibility of citing "generic reasons." It is the judge's responsibility to evaluate case by case the adequacy of the conditions of the ex-spouses to order custody, making it crucial to prove the incapacity or inadequacy (total or partial) of the parent. The investigator's work allows for the collection of evidence to support the elements highlighted above in the interest of the children, such as: emotional deficiencies, abuse or violence, mistreatment, neglect, and incompatible lifestyle (being involved in illegal activities, drug use, alcohol abuse, inappropriate associations, personal degradation, etc.). The collected evidence will be documented and included in a report usable in court.

  • Demonstration of the presence or absence of the necessary prerequisites for the assignment of the marital home

According to the law, "the enjoyment of the family home is assigned with priority given to the interest of the children. The judge takes the assignment into account when regulating the economic relations between the parents, considering any ownership title. The right to enjoy the family home ceases if the assignee does not live or stops living permanently in the family home, or cohabits as if married, or enters into a new marriage (Art. 337 sexies c.c.). The intervention of the Private Investigation Institute can be crucial in demonstrating the existence or absence of the aforementioned conditions; consider, for example, the situation where the ex-spouse, to whom the marital home has been assigned, moves elsewhere or even starts a new cohabitation relationship (even within the same assigned residence).

In the context of investigations for separations and divorces, assigning a mandate to a specialized Private Investigation Institute to verify and document the truth can be crucial for the outcome of the dispute.

AIRO guarantees a reliable, punctual, and confidential service, deploying its specialists and the best technologies to ensure the protection of the client's interests.

Reference legislation and rulings of the Court of Cassation.

The recent legislation on quick divorce has introduced significant changes in the procedure for the separation of spouses, reducing the time for filing for divorce from three years to six months, thus proceeding to a faster separation. Law no. 55 of May 6, 2015 represents the biggest change in the matter since divorce was introduced in Italy with the 1974 referendum.

Supreme Court rulings on the subject of marital duties

Cass. civ. n. 19450/2007
(summary no. 1)
In matters of separation between spouses, for the purpose of determining fault, the behavior contrary to the duties arising from marriage committed by one spouse is relevant, even if tolerated over the years by the other; however, although tolerance is not an "objective exoneration," it can be an expression of a substantial cessation of marital affection and thus the conversion of the marriage into a prolonged merely formal cohabitation, with the consequence of excluding the relevance of the behavior in violation, for the purposes of the assessment under art. 151, second paragraph, c.c.
(summary no. 2)
The declaration of fault in the separation implies the existence of behaviors "objectively" contrary to the values on which the Italian Constitution bases marriage, although in the "subjective" opinion of the acting spouse they are in accordance with their "own" personal ethics or social or religious view or customs or are expressive of a spontaneous reactivity to unshared lifestyles.
(Civil Cassation, Section I, judgment no. 19450 of September 20, 2007)

Cass. civ. n. 5762/1997
(headnote no. 1)
According to Article 156 of the Civil Code, the right to maintenance allowance following personal separation arises in favor of the spouse to whom the separation is not attributable, if they do not have income that allows them to maintain a standard of living similar to that during the marriage and there is an economic disparity between the spouses. Therefore, the judge, in order to determine if the allowance is due, must primarily assess the aforementioned standard of living, and only subsequently examine if the economic means available to the spouse requesting it are sufficient to maintain it independently of the allowance. If not, a comparative evaluation of the economic means of each spouse at the time of separation must be conducted to determine if there is an economic disparity justifying the imposition of the allowance, as well as its amount.
(headnote no. 2)
In the event that, during marital cohabitation and before the separation request, there has been a violation of marital duties, the judge, to consider it irrelevant in relation to the attribution of the separation, must rigorously and precisely ascertain the merely formal nature of the cohabitation. For this purpose, any tolerance by one spouse regarding the violation of these duties by the other is irrelevant, as this concerns a matter where rights and duties are non-negotiable
(Civil Cassation, Section I, judgment no. 5762 of June 27, 1997)

Supreme Court rulings on domestic abuse

Cass. pen. n. 25498/2017
In the absence of constraints arising from marriage, the crime of domestic abuse can be configured against a person no longer cohabiting "more uxorio" with the perpetrator, provided that the latter maintains a stable relationship with the victim dependent on the duties connected to parenthood.
(Criminal Court of Cassation, Section VI, judgment no. 25498 of May 22, 2017)

Cass. pen. n. 36503/2011
The crime of family mistreatment is committed by a parent who exhibits overprotective behavior towards their minor child, affecting the child's psychophysical development, regardless of whether the minor perceives such behavior as mistreatment or has consented to it.
(Criminal Cassation, Section VI, judgment no. 36503 of October 10, 2011)

Cass. pen. n. 44090/2014
The state of quasi-flagrancy of the crime of domestic abuse is conceivable provided that: a) the single harmful episode is not isolated but is the last link in a chain of violent or otherwise harmful behaviors; b) the criminal episode occurred immediately before and the perpetrator fled or was caught with items or traces indicating that he had just committed the crime.
(Criminal Cassation, Section VI, judgment no. 44090 of October 23, 2014)

Supreme Court rulings on the assignment of the family home

Cass. civ. n. 14553/2011
The assignment of the family home provided for by art. 155 quater of the civil code, responding to the need to preserve the domestic "habitat," understood as the center of affections, interests, and customs in which family life is expressed and articulated, is allowed solely with regard to that property which constituted the family's gathering center during cohabitation, excluding any other property that the spouses might have had available and used temporarily or occasionally.
(Civil Court of Cassation, Section I, judgment no. 14553 of July 4, 2011)

Cass. civ. n. 16398/2007
In matters of separation and divorce, the provision of art. 155 quater of the civil code, as introduced by law no. 54 of February 8, 2006, by referring to the "interest of the children," confirms that the enjoyment of the family home is aimed at the protection of the offspring in general and no longer at the custody of minor children. In the absence of offspring, the title justifying the availability of the family home, whether it is a right of enjoyment or a real right, held by one or both spouses, is legally irrelevant. Consequently, the judge cannot adopt a provision for the assignment of the marital home in the separation judgment.
(Civil Cassation, Section I, judgment no. 16398 of July 24, 2007)

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