A case of ordinary family crisis renews reflection on a legal institution, such as that of separation between spouses, which, over the past few years, has been much downgraded, but nonetheless proves useful and topical in that it is capable of responding to the needs of different subjects.

A Moroccan national, married to a compatriot by whom she had two children, all living in Italy, approached my firm intending to end her marriage. She accused her husband of authoritarian and sometimes violent conduct.

According to the wife, her husband prevented her from working, dating other Italian families, and generally accused her of adopting an excessively Western lifestyle. The latter, annoyed by his wife's conduct, had begun to refuse her and the minor children minimal sustenance.

After hearing the client's account, first of all we drew up a list of needs and prioritized them. Ultimately, the client, first and foremost, needed: to have her cohabitation with her husband, with whom disagreements were now a daily occurrence, cease soon; to obtain custody of her children and a contribution for their maintenance. Both of these needs were achievable through proceedings for legal separation or divorce.

Since these were foreign nationals, first of all it was necessary to figure out whether it was possible to go to an Italian court or to the court of the place where the marriage had been celebrated (Morocco) and thus resolve the so-called question of jurisdiction. Then, once the competent authority had been identified, it would be necessary to figure out which law to apply. With regard to the first profile, the analysis of the rules of private international law led to the conclusion that Italian jurisdiction existed for all applications.

In fact, regarding the application for dissolution of marriage or separation, the criterion dictated by Article 3(a) EU Reg. 2201/2003 (Brussels II bis), which links jurisdiction to the place of habitual residence of the spouses, i.e. Italy, was applicable. As for the application for child custody, Article 8 of the same regulation, which also refers to the court of the place where the minor children habitually reside, located in Italy, was applicable. Finally, with regard to claims of maintenance content, Italian jurisdiction was affirmed by Article 3 EU Reg. 4/2009, by reason of the residence in Italy of the defendant and the creditors of the maintenance payment.

With regard to maintenance obligations, reference had to be made to the law of the state in which the creditors were habitually resident, i.e., Italian law. This was by virtue of Article 3 of the Hague Protocol of 11/23/2007.

The most interesting issue concerned the dissolution of marriage or separation of spouses. If in fact Art. The application of the Mudawwana would also have had other hypothetical additional benefits for my client, given that, in our legal system, it has now become rather complicated to obtain economic benefits from the other spouse when the applicant is young, healthy, and endowed with a common working capacity. Conversely, Moroccan family law still knows some institutions that protect the woman after the end of the marriage by providing for the husband's obligation to pay sums by way of damages, as in the case of divorce for injury suffered (lil-darar), divorce for failure to maintain (Adam-Infaq) and divorce for compensation (khol).

While faced with these possibilities, the client opted for the application of Italian law, based on several considerations. Among them, one seemed particularly interesting. Personal separation, understood as a period of reflection prior to divorce, which is reversible, is an institution that does not conflict with the Muslim conception of marriage and in any case allows for a quick defusing of high-tension situations.

Indeed, in the course of my studies for this case, I learned that even for the Muslim tradition, the dissolution of the marriage bond should take place only in exceptional cases, so much so that within the Sunna, the collection of sayings (hadiths) attributed to the Prophet Muhammad, there is one that goes like this, “The most execrable of legal acts, for God, is divorce.” With a joke, I would say that one is not far from the truth by thinking that separation, at this moment in history, is probably more appreciated by foreigners, than by Italians.