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The non-EU subject who applies for divorce from his or her spouse who has Italian citizenship after a minimum of three years of marriage may remain in Italy and benefit from the renewal of the residence permit.
The Supreme Court, indeed, established for the non-EU citizen the right of residence in compliance with the rule that "divorce and annulment of marriage union with the European citizen do not provoke the withdrawal of the right of residence of the family nucleus of the a community person who does not have the citizenship of a member country, on condition that the marriage relationship has lasted for at least three years, at least one in the reference State, before the beginning of the divorce or divorce procedure ".
The only criterion that must be present in the case analyzed by the judiciary is that the marriage bond "has lasted for at least three years, of which at least one in the country of reference before the start of the divorce or cancellation procedure".
The case examined by the Court concerns a lady from Ecuador who was married to an Italian citizen in 1999 and then separated in 2006.
The police commission erroneously assumed that the conclusion of the matrimonial relationship revoked the right of renewal of the residence permit for the lady in question. In light of this rule, a deportation order validated by the Court of Appeal of Genoa was applied in October 2007.
The lady then turned to the Court of Cassation, which admitted her right, sanctioning the judiciary of merit for the failure to adopt the legislative decree n. 30 of 2007, "implementation of Directive 2004/38 / EC on the right of those with community citizenship and their families to move and reside in the reference member country". Article. 32 law 218 of 1995, considerably extends the national jurisdiction in the aforementioned field. Indeed, in the cases governed by art. 3 of the same provision concerning the domicile or residence of the non-EU subject in Italy, are connected, the general rule of the assimilation of judicial power by the latter and the specific requirements established for internal suitability, to which the art. 3, second paragraph, final part.
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To the general eligibility criteria, two more are added, special, for the issues we are analyzing: the possession of the Italian citizenship of one of the spouses and the execution of the marriage in Italy. Thanks to the first specific judicial institute, namely that of the Italian citizenship of the person involved, those who have Italian citizenship benefit in any case from the possibility of requesting separation or divorce from an Italian judicial panel with the adoption of national legislation, if legal figures are not regulated by the otherwise applicable foreign legislation.
The second specific figure, on the contrary, which concerns the marriage ceremony in Italy, is a new provision authorized with the aforementioned modification provision, in order to apply for divorce and separation in Italy.
Spouse wishing to divorce, may act according to the current procedure of judicial separation and divorce after three years from the day of separation, this both in the hypothesis of an agreed demand as for disagreement.
Therefore, it will be essential to consider the common procedure indicated by the code of national civil procedure, and ask the court of the city of reference. In the event that the wives wish to present a shared or joint agreement, they have the right to proceed with the divorce in the country of origin of the non-community subject, respecting the regulations of the foreign country.
Furthermore, judicial separation is not necessary, except in cases where the legislation of the country of origin does not impose it.