Decisions pending separation process (pendente lite)

Pendente lite is a Latin term which means 'while the litigation is pending'.

The process of separation (even when accompanied by a plea for annulment or divorce) will most likely take a considerable amount of months to conclude. Pending the outcome of the proceedings, the Court may make a pendente lite decision on anyone one or more of following:

  1. who is to live in the matrimonial home;
  2. the amount of maintenance that has to be paid periodically from one spouse to the other;
  3. who is to be entrusted with the care and custody of the children and the rights of the other spouse to have access to the children;

as provided in articles 46, 46A and 47 of the Civil Code.

The leading idea behind the pendente lite decisions is to ascertain that one party is not impoverished by the length of the separation proceedings and that ties between parents and children are not lost.

Maintenance Pendente Lite
Maintenance is the amount of money that one spouse (the main breadwinner) pays to the other spouse to help in upbringing children or maintain the other spouse (or both). During the case the Court may order that one party pays the other a sum (periodic payments), to maintain the other spouse and/or any of their children. This sum is to be paid if the Court is satisfied that such party would according to law be liable to pay maintenance (i.e. at this stage the Court makes a prima facie assessment and decides whether one would likely be liable to maintain the other at the outcome of the separation process or not).

However, if the claim for maintenance pendente lite is disallowed and it is later found that such person was entitled to maintenance, then such a person has the right to claim a reimbursement the money which s/he should have received in maintenance pendente lite. (Article 25, Civil Code)

Matrimonial Home Pendente Lite
During the pendency of the court case, either spouse may leave the matrimonial home. Either of the spouses (whether or not he or she has left the home) may apply to determine who of the spouses is to reside in the matrimonial home during the pendency of such action (Article 46, Civil Code).