JUDGMENT NO. 146

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

is composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy review of Article 473-bis.17 of the Code of Civil Procedure, initiated by the Ordinary Court of Genoa, Fourth Civil Section, in the proceedings between M. T. P. and A. C., by order dated September 4, 2024, registered under no. 224 of the ordinary register of 2024 and published in the Official Gazette of the Republic no. 50, special first series, of 2024.

Having reviewed the intervening memorandum of the President of the Council of Ministers;

having heard the Reporting Judge Emanuela Navarretta in the private session of July 7, 2025;

deliberated in the private session of July 7, 2025.

Facts of the Case

1.– With order of September 4, 2024, registered under no. 224 of the ordinary register of 2024, the Ordinary Court of Genoa, Fourth Civil Section, raised questions of constitutional legitimacy regarding Article 473-bis.17 of the Code of Civil Procedure, concerning its reference to Articles 3, 24, and 111 of the Constitution, in so far as it stipulates, in the first paragraph, that the plaintiff must, under penalty of forfeiture, modify or specify the claims and conclusions already submitted, propose claims and defenses that are a consequence of the defendant’s pleadings, indicate means of proof, produce documents, and formulate requests for evidence, by filing a memorandum at least twenty days prior to the hearing for the appearance of the parties.

1.1.– The referring court reports that, with a petition filed on July 31, 2023, M. T. P. requested the Court of Genoa to modify the conditions of personal separation from her husband A. C., by ordering an increase in the maintenance contribution for one of the couple’s daughters, an adult student who is not economically independent, in light of her changed living requirements and the defendant’s improved economic conditions.

By a statement of appearance and defense filed on October 23, 2023, the latter appeared in the proceedings, opposing the request for modification of the separation conditions. In a counterclaim, he also requested the divorce from his wife, along with the confirmation of the economic contribution established in the separation proceedings for the maintenance of the student daughter and the revocation of the contribution due for the maintenance of the other adult daughter, who had become economically self-sufficient.

With a subsequent memorandum, pursuant to art. 473-bis.17 of the Code of Civil Procedure, filed on November 8, 2023, the plaintiff objected to the inadmissibility of the defendant’s counterclaim for divorce, due to the lack of objective connection with the request for modification of the separation conditions.

1.2.– The trial judge reports that, at the hearing of November 28, 2023, the parties reached an agreement on the maintenance of the daughter during the separation, but did not reach a shared solution regarding the divorce claim.

Furthermore, the plaintiff raised doubts regarding the constitutional legitimacy of Article 473-bis.17 of the Code of Civil Procedure, for conflict with Articles 3, 24, and 111 of the Constitution, in so far as it grants the plaintiff a term of only ten days to respond to any counterclaims made by the defendant.

2.– The Court of Genoa, having retained the case for decision, raised the present questions of constitutional legitimacy.

As a preliminary matter, it dismissed the objection by which the plaintiff contested the admissibility of the counterclaim for divorce within the proceedings for the modification of the separation conditions. In fact, it found an objective connection between the request for modification of the separation conditions and the request for divorce, such as to allow for their joint consideration.

In this regard, it referred to the judgment of the Court of Cassation, First Civil Section, October 16, 2023, no. 28727, which admitted the concurrent request for separation and divorce even in joint proceedings, pursuant to Article 473-bis.51 of the Code of Civil Procedure. In particular, the aforementioned ruling identified the ratio of the legislative amendment in achieving coordination between proceedings concerning identical claims or involving common factual assessments, and highlighted the drawbacks arising in the past from handling such disputes in separate proceedings.

3.– Having made this premise, the referring court proceeded to illustrate the doubts regarding constitutional legitimacy.

3.1.– According to the Court of Genoa, Legislative Decree no. 149 of October 10, 2022 (Implementation of Law no. 206 of November 26, 2021, providing for delegation to the Government for the efficiency of civil proceedings and the revision of the discipline of alternative dispute resolution tools and urgent measures for the rationalization of proceedings concerning the rights of persons and families and compulsory enforcement) would have introduced, with Article 473-bis.17 of the Code of Civil Procedure, too short a deadline to allow the plaintiff to propose claims and defenses arising from the defendant’s pleadings.

Whereas the latter «has at least 30 days to formulate the defense and propose their exceptions and counterclaims, the plaintiff must respond to the opposing claims and defenses, modify their own claims, formulate any new exceptions and claims resulting from the opposing claims and the related means of proof, within the meager term of 10 days, which often reduces to 9 or even fewer if the concluding brief is filed on the last available day and is therefore downloaded from the Registry the following day.»

The trial judge notes that, in this matter, the defendant's counterclaims introduce often complex issues, on which the plaintiff is called to prepare their defenses «within an absolutely inadequate term.»

In particular, with reference to the case before it, the referring court observes that, in response to the counterclaim for divorce proposed by the defendant, the plaintiff had too limited a term «to formulate a claim for divorce allowance which, as is known, is based on different premises from the maintenance allowance for a spouse in separation proceedings, implying a reconstruction of the choices made by the parties during the marriage, often spanning a long period, with the consequent necessity to formulate the related requests for evidence.»

This would lead to an unjustified compression of the right to defense, under Article 24 of the Constitution, as well as a violation of the equality of arms and, generally, the principles of due process, established by Article 111 of the Constitution.

3.2.– The referring judge finds also a violation of the principle of equality, pursuant to Article 3 of the Constitution, «since equal situations receive different legal treatment.»

Specifically, it compares the discipline of proceedings concerning the status of persons, minors, and families with other proceedings provided for by the Code of Civil Procedure, some of which were also reformed by Legislative Decree no. 149 of 2022. From the comparison, it infers that in no case would the plaintiff be granted such a short deadline to react to the counterparty's defenses.

In particular, it refers to the discipline of the ordinary cognitive proceeding, in which the defendant has at least thirty days to adjust their defenses to any opposing counterclaim (Articles 166, 167, and 171-ter of the Code of Civil Procedure).

It then invokes the simplified cognitive proceeding, in which the defendant must appear within ten days before the hearing set by the judge and, pursuant to Article 281-duodecies, third and fourth paragraphs, Code of Civil Procedure, «in case of a counterclaim» – as specified by the referring judge – «the plaintiff may request a peremptory term not exceeding 20 days to specify and modify the claims, defenses, and conclusions, to indicate means of proof and produce documents, […] thus having 30 days to reorganize their defense.»

Furthermore, the Court of Genoa refers to the transition from the simplified to the ordinary proceeding, in which, pursuant to Article 281-duodecies, first paragraph, Code of Civil Procedure, the judge «orders by non-appealable order the continuation of the proceedings in the forms of the ordinary proceeding, setting the hearing referred to in Article 183, from which the terms provided for by Article 171 ter Code of Civil Procedure run.»

Finally, the referring judge also refers to the discipline of labor law proceedings, according to which, if the defendant proposes a counterclaim, they must request the judge, under penalty of forfeiture, to set a new discussion hearing, which must be set no later than fifty days from the proposal of the counterclaim (Article 418, first and second paragraphs, Code of Civil Procedure).

In this context, Article 473-bis.17 of the Code of Civil Procedure would constitute an isolated case of unreasonable compression of the deadlines for the plaintiff’s defense.

4.– The trial judge deems itself unable to remedy such shortcomings with a constitutionally oriented interpretation of the provision under review, given the peremptory nature of the deadlines established by the procedural code under penalty of forfeiture. It also excludes the possibility of granting the party an extension of time, pursuant to Article 153, second paragraph, Code of Civil Procedure, because doing so would introduce «an automatic postponement mechanism for the first hearing with the consequent granting ex novo of all deadlines under Article 473-bis.17 C.P.C. not provided for by the legislator.»

5.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State’s Attorney General’s Office, requesting that the raised issues be declared inadmissible and, in any case, unfounded.

5.1.– As a preliminary matter, the State defense observed that the challenge must be confined to Article 473-bis.17, first paragraph, Code of Civil Procedure.

According to the State’s Attorney General’s Office, although the referring judge refers to the entirety of Article 473-bis.17 of the Code of Civil Procedure in the operative part, the reasoning focuses exclusively on the shortness of the deadline that the first paragraph of the cited article assigns to the plaintiff in order to explain their defense in response to the defendant.

5.2.– On procedural grounds, the President of the Council of Ministers raises three objections.

5.2.1.– Firstly, it notes a lack of relevance, deeming inadmissible the fact that, within proceedings instituted for the modification of separation conditions relating to the maintenance of the offspring, the defendant asserts a counterclaim for divorce, which consequently leads the plaintiff to claim the divorce allowance in reply.

There is a lack of any objective connection or preemption between the claim concerning the quantification of the economic contribution for the maintenance of the offspring in personal separation and that concerning divorce, which also reflects in the consequential claim for the divorce allowance.

5.2.2.– Secondly, the State’s Attorney General’s Office considers the requirement of relevance lacking for a further reason, related to the fact that the plaintiff would have had sixteen days available in practice to respond to the counterclaim. The hearing, in fact, took place on November 28, 2023, as opposed to the defendant’s appearance on October 23, 2023, so that the plaintiff, who filed the first memorandum subsequent to the defendant’s statement of appearance on November 8, 2023, could in fact benefit from a term longer than the ten days on which the trial judge’s complaint is focused.

According to the State defense, the reasoning concerning the relevance of the raised issues would therefore not be adequate, as it refers to the term applicable in the abstract, omitting «any actual verification of the adequacy of the term that the plaintiff could actually have at their disposal.»

5.2.3.– Finally, the Attorney General observes that the referring judge, in comparing the discipline of the unified family proceedings with three different procedures present in the legal system, failed to indicate the model through which the contested norm could be brought to legitimacy.

This – in the judgment of the State defense – would lead to the inadmissibility of the challenges, given the manipulative nature of the request made to this Court.

5.3.– On the merits, the President of the Council of Ministers deems the questions of constitutional legitimacy raised with reference to Articles 24 and 111 of the Constitution to be unfounded, as, according to the constant orientation of this Court, the legislator enjoys wide discretion in procedural matters, limited only by manifest unreasonableness or arbitrariness of the choices made.

In the case under examination, «[t]he provision of a term of at least ten days to allow the plaintiff to reply to the defendant’s counterclaim cannot be considered the result of a choice vitiated by manifest unreasonableness, but constitutes the expression of a coherent balancing of the plaintiff’s interest in having adequate time to prepare their defenses, with the objective, of significant public interest, of achieving a speedy resolution of judicial proceedings in the family sphere.»

As for the challenge concerning the violation of the principle of equality, the Attorney General observes that the legal situations compared are «different as they pertain to different procedural proceedings: all would be worthy of protection, but not necessarily of the same protection.»

From this heterogeneity of the tertia comparationis, the unfoundedness of the challenge raised with regard to Article 3 of the Constitution is also inferred.

Considerations in Law

1.– The Ordinary Court of Genoa, Fourth Civil Section, with the order indicated in the preamble (reg. ord. no. 224 of 2024), raised questions of constitutional legitimacy concerning Article 473-bis.17 of the Code of Civil Procedure, with reference to Articles 3, 24, and 111 of the Constitution, in so far as it stipulates, in the first paragraph, that the plaintiff must, under penalty of forfeiture, modify or specify the claims and conclusions already submitted, propose claims and defenses that are a consequence of the defendant’s pleadings, indicate means of proof, and produce documents, by filing a memorandum at least twenty days prior to the hearing for the appearance of the parties.

The referring court considers the deadline assigned to the plaintiff to propose claims and defenses arising from the defendant’s pleadings, as well as to present new means of proof, to be too short.

In the judgment of the Court of Genoa, the time remaining – between the expiry of the deadline provided by law for the defendant’s appearance (at least thirty days before the hearing) and the expiry of the deadline within which the plaintiff must file their memorandum (at least twenty days before the hearing) – namely ten days, would be insufficient to guarantee the plaintiff an adequate defense against the counterclaims and defenses that the defendant may raise. This is even more evident considering that sometimes the defenses – as in the case before it – may prove to be particularly complex.

The contested norm would therefore determine an unjustified compression of the right to defense, the equality of arms, and the general principles of due process, established by Articles 24 and 111 of the Constitution.

The trial judge also deems the principle of equality, under Article 3 of the Constitution, to be violated, due to unreasonable disparity of treatment compared to the discipline provided for in the ordinary cognitive proceeding, the simplified cognitive proceeding, and labor law proceedings.

2.– The President of the Council of Ministers intervened in the proceedings and raised three objections of inadmissibility.

2.1.– Firstly, the State defense argued for the irrelevance of the questions, based on the premise that a counterclaim for divorce cannot be brought within proceedings instituted for the modification of separation conditions regarding the maintenance of the offspring.

2.1.1.– The objection is unfounded.

The referring court offered textual and teleological arguments, also supported by references to case law of the Court of Cassation, supporting the possible counterclaim for divorce, proposed in response to the request to modify the separation conditions.

The reasoning provided by the trial judge therefore passes the external review of non-implausibility, on which basis this Court assesses the relevance of questions of constitutional legitimacy (ex plurimis, judgments no. 80, no. 50, no. 49 and no. 4 of 2024, no. 164 of 2023, and no. 193 of 2022).

2.2.– Secondly, the State’s Attorney General’s Office objected to the irrelevance of the challenges, given that, in the main proceedings, the plaintiff would have had sixteen days available in practice to prepare their defenses in reply to the defendant’s statement of appearance and defense, whereas the referring judge complains, conversely, about the ten-day period.

2.2.1.– This objection must also be dismissed.

The relevance of questions of constitutional legitimacy presupposes that the trial judge must simply rely on the contested norm, so that for admissibility purposes, it is sufficient that they have adequately reasoned in this regard.

In the present case, the referring judge highlighted how, precisely based on the contested discipline, it would be forced to reject the plaintiff’s request for the assignment of a new term for defense.

2.3.– Lastly, with the third procedural objection, the State’s Attorney General’s Office contested the indeterminacy and manipulative nature of the request made to this Court, in the absence of a constitutionally mandatory solution.

This latter objection is also unfounded.

Although the referring order does not express a preference among the different procedural models compared with that outlined by the contested norm, it must be recalled – as repeatedly noted by constitutional case law – that «‘the petitum of the referring order serves to clarify the content and direction of the challenges raised by the referring judge,’ but does not bind this Court, which, ‘if it finds the questions well-founded, remains free to identify the most suitable ruling for the reductio ad legitimitatem of the contested provision’” (judgments no. 53 of 2025 and no. 46 of 2024).

In other words, this Court, just as it can identify the appropriate regulation ex officio, seeking in the «system as a whole […] ‘precise reference points’ and ‘already existing’ solutions (judgment no. 236 of 2016) […] free from illegitimacy defects, even if not ‘constitutionally mandatory’» (judgment no. 222 of 2018), can all the more so select among various options indicated by the referring judge, without the presentation of possible alternative models of regulation of the case constituting an obstacle of a procedural nature to the examination of the issues.

3.– On the merits, the challenges raised with reference to Articles 24 and 111 of the Constitution are unfounded.

4.– According to a constant line of constitutional case law, the legislator enjoys broad discretion in the matter of regulating proceedings and shaping procedural institutes, with the only limit being manifest unreasonableness or arbitrariness of the choices made (ex plurimis, judgments no. 76, no. 39, and no. 36 of 2025, no. 189 and no. 96 of 2024, no. 67 of 2023).

The legislator may «differentiate judicial protection with regard to the particular nature of the relationship to be regulated» (judgment no. 39 of 2025) and is not required to ensure the principles of Articles 24 and 111 of the Constitution «always in the same way and with the same effects,» provided that it respects the limit of not imposing burdens or prescribing procedures such as «to render impossible or extremely difficult the exercise of the right to defense or the performance of procedural activity» (judgment no. 76 of 2025).

4.1.– Following the path set by the aforementioned constitutional case law, the legislator has provided for a differentiated special proceeding for matters relating to the status of persons, minors, and families, given their peculiarity, which, in conformity with the principle of reasonable duration of proceedings (Article 111, second paragraph, Constitution), has been based on demands for concentration and speed.

From this perspective, the legislator has established that the thema decidendum and the thema probandum must be defined before the hearing for the appearance of the parties, so as to allow the judge to adopt urgent measures and commence the evidentiary phase, based on a complete knowledge of the facts of the case and the claims of the parties.

4.2.– Within the framework of the cited discipline, which provides for tight temporal scheduling, lies the further choice, which is the subject of the present questions of constitutional legitimacy, to grant the plaintiff a deadline to reply to the defendant’s defenses and any counterclaims, which, even if the defendant were to file their statement of appearance on the last available day, cannot be less than ten days. The President of the Court, in fact, when setting the first hearing for the appearance of the parties, sets the deadline for the defendant’s appearance, which must occur at least thirty days before the hearing (Article 473-bis.14, second paragraph, Code of Civil Procedure), while the plaintiff may file a memorandum, pursuant to the contested norm, within twenty days before the date of the hearing (Article 473-bis.17, first paragraph, Code of Civil Procedure).

The aforementioned deadline, although short, in line with the legislative policy objectives, aimed at the swift resolution of proceedings, does not exceed the margin of manifest unreasonableness, as it does not render the exercise of the right to defense impossible or excessively difficult.

4.2.1.– Firstly, the plaintiff is well able to foresee the type of reaction that may arise from their claim and which may result in the proposal of a defense or a counterclaim.

The defendant’s defenses, in fact, must present an objective connection with the main claim and, in the context of a special proceeding, such as the one under review, are legally circumscribed ex ante by the type of relationships to which it applies.

In particular, in proceedings concerning the status of persons, minors, and families, a counterclaim concerning a claim entirely unforeseeable with respect to the object of the process is not conceivable.

Even considering the type of dispute handled in the main proceedings, it must be noted that, in response to a claim concerning the separation between spouses, requesting a modification of the financial conditions relating to the maintenance of the children, a counterclaim regarding the dissolution of the relationship cannot be considered unexpected. It was the reform introduced by Legislative Decree no. 149 of 2022 that expressly regulated the hypothesis of the cumulation of a claim for separation and one for the dissolution or cessation of the civil effects of marriage and recognized a hypothesis of connection, so as to favor their joint consideration, upon reunion, even if proposed before different judges (Article 473-bis.49 Code of Civil Procedure).

4.2.2.– In addition, the 2022 legislator itself modulated the scope of application of the contested norm based on the interests involved, providing – in Article 473-bis.19, first paragraph, Code of Civil Procedure – that the forfeitures established by various provisions, including Article 473-bis.17, «operate only with reference to claims concerning disposable rights.»

Furthermore, Article 473-bis.19, second paragraph, Code of Civil Procedure expressly provides that «the parties may always introduce new claims and new means of proof relating to the custody and maintenance of minor children.»

Thus, the legislator itself has acknowledged the need, in this peculiar matter, for a more flexible discipline, which helps to highlight the non-manifestly unreasonable nature of the balance point identified by the contested norm.

4.2.3.– Ultimately, the choice adopted by the legislator in balancing the demands for speed with the needs of defense, also in relation to the type of interests involved, leads to the exclusion that the minimum term of ten days assigned to the plaintiff can render the exercise of the right to defense impossible or excessively difficult.

In addition, should exceptional situations not attributable to the party occur, the general provision of Article 153, second paragraph, Code of Civil Procedure, according to which «[t]he party who demonstrates to have incurred forfeitures for reasons not attributable to them may request the judge to be reinstated in terms,» would apply. The latter provision thus closes the system and, in conjunction with Article 473-bis.17, first paragraph, Code of Civil Procedure, further dispels the fear of possible violations of the right to defense.

4.3.– Turning now to the aspect of the challenge concerning the equality of arms, it must be specified that, according to this Court, the principle of adversarial proceedings enshrined in Article 111, second paragraph, Constitution «exclusively requires ensuring that every judgment is conducted in such a way as to guarantee the parties the possibility of influencing the judge’s conviction with equal means, with the legislator responsible for defining the specific modalities of implementation» (judgment no. 73 of 2022, and similarly judgment no. 39 of 2025).

In light of the aforementioned principle, it must be noted, on the one hand, that both parties, in the proceeding under review, can assert the same remedies and have the same evidentiary powers, and, on the other hand, that the legislator has not exceeded the limit of manifest unreasonableness by differentiating the treatment of the plaintiff and the defendant solely as regards the duration of the term granted to them to defend themselves against the respective counterparty’s claims and defenses.

In particular, the plaintiff – as noted above – has a minimum term of ten days to react to the defendant’s defenses, while the latter has a minimum term of thirty days to prepare their defenses against the plaintiff’s claim (as is evident from the systematic coordination between Article 473-bis.14, fifth paragraph, Code of Civil Procedure and Article 473-bis.14, second paragraph, Code of Civil Procedure).

Well, the shorter term granted to the plaintiff’s defense compared to that granted to the defendant is not manifestly unreasonable, as the two procedural positions are significantly different.

Whereas the defendant is generally caught by surprise by the action initiated by the party introducing the proceedings, the plaintiff, for the reasons extensively explained above, enjoys a much greater capacity to foresee the possible reactions of the counterparty against which they are called to defend themselves.

Therefore, the different terms granted to react to the respective claims of the other party, in the context of a proceeding aimed at speed and concentration, are not such as to place the plaintiff in a situation of manifestly unbalanced asymmetry compared to the defense possibilities available to the defendant.

4.4.– For the reasons set out above, the contested discipline does not violate the right to defense, the equality of arms, and the principles of due process, under Articles 24 and 111 of the Constitution.

5.– Likewise, the question raised with reference to Article 3 of the Constitution, for unreasonable disparity of treatment in comparison with the discipline concerning the deadlines available to the plaintiff’s defense in the ordinary cognitive proceeding, the simplified cognitive proceeding, and labor law proceedings, is unfounded.

The prerequisites of each of the compared procedures are so peculiar as to render the tertia comparationis heterogeneous.

The comparison with the ordinary cognitive proceeding is unjustified, if only one considers that among the reasons supporting an autonomous unified proceeding for the status of persons, minors, and families is precisely the need to remove such delicate disputes, requiring specialized handling, from the ordinary proceeding.

The comparison with the simplified cognitive proceeding is likewise weak. This, on the one hand, is peculiar regarding the reasons for concentrated handling, which are found in the simplicity of the issues involved and the consequent summary nature of the evidence (Article 281-decies, Code of Civil Procedure). And, on the other hand, it identifies a procedure applicable to any civil dispute, which makes the defendant’s possible defenses more unpredictable – compared to the proceeding under review.

Finally, if some similarity can be found with labor law proceedings, it must, however, be noted that the latter is structured in a completely different way from the one under review.

Labor law proceedings are, in fact, even more compressed and expedited, as everything is concentrated in the discussion hearing, during which the various procedural activities must take place. Conversely, the unified family proceeding, while also swift and anticipating the delimitation of the decision-making theme, is nevertheless characterized, subsequently, by more extended temporal scheduling, into which peculiar moments may be inserted, such as the hearing of the minor, the appointment of specialized experts, the intervention of social services, the participation of the Public Prosecutor.

Overall, therefore, the very prerequisite for the review concerning unreasonable disparity of treatment is lacking, namely the homogeneity of the situations compared (ex multis, most recently, judgments no. 53 and no. 34 of 2025, no. 212 and no. 171 of 2024), whereas it must be noted that the contested discipline reflects a precise legislative choice to «differentiate judicial protection with regard to the particular nature of the relationship to be regulated» (thus, most recently, judgment no. 39 of 2025).

for these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 473-bis.17 of the Code of Civil Procedure, raised with reference to Articles 3, 24, and 111 of the Constitution, by the Ordinary Court of Genoa, Fourth Civil Section, with the order indicated in the preamble.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 7, 2025.

Signed:

Giovanni AMOROSO, President

Emanuela NAVARRETTA, Reporting Judge

Roberto MILANA, Registrar

Filed in the Registry on October 13, 2025