Family law in Italy: overview

A Q&A guide to family law in Italy.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Pennington Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

Matrimonial law in Italy is governed predominantly by Articles 1 to 455 of the First Book of the Civil Code. These articles cover a wide range of matters relating to the family, including marriage, rights and duties arising out of marriage, dissolution and separation and marital property. In particular:

  • Separation is governed by Articles 150 to 158 of the Civil Code.

  • Divorce is regulated by Law 898/1970.

  • The rules on the welfare of children are contained in titles VII to XIII of the Civil Code.

Law 218/1995, entitled the Private International Law, provides the rules on the scope of Italian jurisdiction and the criteria to determine the applicable law and enforcement of foreign judgments when foreign nationals/residents are involved. Under Articles 26 to 45 of this law, in certain circumstances, Italian courts can have jurisdiction and apply governing foreign law.

As Italy is part of the EU, EU legislation is a primary source of law in specific fields. In relation to separation and divorce:

  • Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation) regulates jurisdiction issues.

  • Regulation (EU) 1259/2010 implementing enhanced co-operation in the area of the law applicable to divorce and legal separation regulates governing law. This is particularly significant for foreign citizens resident in Italy. Before it came into force, non-Italians of the same nationality living in Italy had their separation/divorce governed by their common national law. Now, Italian law applies.

In relation to maintenance obligations:

  • Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations regulates jurisdiction issues.

  • The Hague Protocol on the Law Applicable to Maintenance Obligations 2007 regulates governing law.

Case law is also an important source of law, especially in terms of interpreting statute.

In the Italian civil law system, although case law is not a direct source of law, it is however very important to determine the orientation of the judges and assess how they may interpret a specific law. Judges are not obliged to follow precedence, but will generally do so if it is consolidated. Of particular importance in the interpretation of legislation are the decisions of the Supreme Court. While the provisions of laws and decrees and so on provide general precepts, case law sets out in a concrete manner how these precepts are to be translated into practice. Therefore, for example, the law states (Article 151, Civil Code) that, in certain circumstances, a separation can be attributed to one of the spouses (with important consequences, such as the loss of the right to maintenance) in light of that person's actions which are contrary to the obligations arising from the marriage. However the law does not set out such circumstances. An examination of the case law can help to explain and illustrate these circumstances.

Court system

Separation, divorce and child maintenance proceedings are decided by particular divisions (the separation and divorce sections) of the ordinary courts. The only special court in family matters is the Juvenile Court, which prior to Law 219/2012 was responsible for procedures relating to children born out of wedlock. Currently the Juvenile Court only decides on measures limiting or removing parental rights and other residual responsibilities. If separation or divorce proceedings are already pending before the ordinary courts, the issues related to parental rights are decided by the ordinary courts.

There is also a special judge called a giudice tutelare (judge for the protection of the disadvantaged) at the ordinary courts, who has jurisdiction over certain matters affecting the child (such as the appointment of a guardian for a minor who has been orphaned or whose parents have been removed from parental care, authorisation for the termination of teenage pregnancy, as well as other decisions relating to disadvantaged persons).

Hearings relating to separation or divorce proceedings are held in private, and the rolls posted outside the courtrooms do not contain the names of the parties, but only the roll number.

 

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

Where both spouses are Italian citizens, Italian courts have jurisdiction over Italian citizens whether or not the spouses are resident in Italy. Separation and divorce are regulated by the ordinary rules governing jurisdiction in Italy.

Jurisdiction in cases of judicial separation proceedings (Article 706, Civil Procedure Code) or judicial divorce (Article 4, Law 1970/ 898) is determined on the basis of the last common residence of the spouses or, failing that, the residence or domicile of the defendant spouse.

If the divorce petition is joint, it can be filed at the tribunal in the municipality of residence or domicile of one of the spouses. Maintenance between spouses is determined during the separation or divorce proceedings. Therefore, even if there are later proceedings to modify the terms of the separation or divorce, the jurisdiction will be determined applying the ordinary rules.

A second situation relates to where either:

  • Both spouses are Italian citizens, and at least one of them is resident in an EU state outside Italy.

  • Both spouses are citizens of other EU member states, and one or both of them are Italian resident(s).

In this case, to determine which EU member state has jurisdiction over separation or divorce proceedings, Article 3 of the Brussels II Regulation applies. Jurisdiction lies with the state where, as applicable:

  • Both spouses are habitually resident.

  • The spouses were last habitually resident, if one of them still resides there.

  • The respondent is habitually resident.

  • Either of the spouses is habitually resident, if there is a joint application.

  • The applicant is habitually resident, if he or she resided there for at least a year immediately before the application was made.

  • The applicant is habitually resident, if he or she resided there for at least six months immediately before the application was made, and is either a national of the member state in question or, in the case of the UK and Ireland, has his or her domicile there.

A third situation involves any of the following:

  • An Italian citizen married to a non-EU citizen.

  • Italian citizens, where at least one is resident in a non-EU state.

  • Non-EU citizens, and one or both of them are resident in Italy or have been married in Italy.

In this case, Law 218/1995 applies. In cases of separation or divorce, Italian jurisdiction applies in any of the following cases (Articles 32 and 3, Law 218/1995):

  • The defendant is either domiciled or resident in Italy, or has a representative who is authorised under Article 77 of the Civil Procedure Code to be brought to trial in Italy.

  • If one of the spouses is an Italian citizen.

  • If the marriage has been celebrated in Italy.

Property

When Italian law applies, the Italian court has no power to dispose of assets in relation to property of the spouses (see Question 8).

As far as separation and divorce are concerned, the judge decides only on the custody of children, maintenance of the spouse and children and the allocation of the marital home when there are minor children.

The assignment of the marital home is made regardless of the ownership of it, and is always assigned to the parent with whom the minor children are placed and only if there are underage children.

If the couple does not have children, the judge cannot make an order assigning the marital home to the weaker spouse. If the spouses are co-owners they are to carry out the division of the property according to the ordinary rules of division of common property (see Question 8).

There have been a few infrequent cases in which it was ordered that the marital home be physically separated into two units. This can only occur when the property is large enough to make this feasible, but also only to ensure that the child has the opportunity to maintain relationships with both parents (Cass. Sez. I, 18 June 2008, n. 16593, in Fam. E dir., 2008,1106 and Tribunal of Naples 21 September 2006, Foto it. 2007, I, 237).

Maintenance obligations and actions relating to property are excluded from the scope of the Brussels II Regulation, as these are covered by Regulation (EC) No 4/2009.

Children

In cases where the applicable law is Italian, issues relating to the children of married couples are determined at the same time as the separation or divorce proceedings, with the court applying the ordinary rules. For proceedings affecting children born out of wedlock, the court with jurisdiction is in the place of habitual residence of the child (see Question 3).

In relation to parental responsibility, the Brussels II Regulation defers jurisdiction to judges where the minor has habitual residence (Article 8, Brussels II Regulation). However, the authorities of a member state with jurisdiction to decide separation and divorce claims can also have jurisdiction over related parental responsibility claims (Article 12.1, Brussels Regulation).

 

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Domicile and residence are two different legal concepts. The domicile of a person is in the place where that person has established the principal centre of his/her business and interests. Residence is in the place in which the person has his/her habitual abode (Article 43, Civil Code). Abode, as such, is not defined by the Civil Code, but is considered to be the place where the person is actually staying at any one time.

Case law has interpreted the concept of residence, as set out in Article 43 of the Civil Code, to mean the habitual and voluntary abode of a person in a determined place. This includes the objective fact of the person staying at that address and the subjective fact of their intention to continue to stay there, which can be proven by their usual lifestyle and social activities. The habitual requirement is not just evaluated according to the duration of the stay or of the interest to remain in a certain place, but must be supported by the will of the resident. If the person is absent for holidays, travel, studies or work, residence status is not lost, but persists if the resident keeps his/her home there, returning whenever possible and maintaining the centre of his/her family and social relations at that location. Residence is a matter of fact which can be proven by any form of evidence, not just through a registration certificate.

 

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

Conflicts of law and jurisdiction issues in Italy are governed by the Brussels II Regulation and Law 218/1995.

If proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different EU member states, the court second seised will, of its own motion, stay its proceedings, until such time as the jurisdiction of the court first seised is established (Article 19, Brussels II Regulation).

If an Italian case has been initiated first in time, the Italian court is obliged to continue, as it may not decline jurisdiction based on a discretionary evaluation of the best interest of the parties. The only exception to this general rule is in matters related to minors and is regulated by Article 15 of the Brussels II Regulation (see Question 2).

If the courts of the member state having jurisdiction consider that a court of another member state, with which the child has a particular connection, is better suited to deal with the case and this is in the best interests of the child, the former may decline jurisdiction in favour of the courts of the latter member state. This exception to the normal rules is only effective if the second court accepts jurisdiction and at least one parent agrees to the transfer.

Factors

The determination of jurisdiction is based solely on the date of submission of the application. Exceptions to this rule, in cases that involve minors, are evaluated in light of the best interests of the child and the place in which he/she has the closest ties.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

Strictly speaking, pre- and post-nuptial agreements are not envisaged in Italian law. When Italian law governs the marital property of the spouses, the only agreement permitted is a covenant by which the spouses agree to change their marital property regime from assets in common to separate assets, or vice versa. This choice only affects assets purchased during the marriage, does not affect the spouses' right to maintenance and/or inheritance rights and must take place after the marriage.

The covenant must be done by way of a public deed before a notary, and noted on the marriage certificate. Cohabiting partners are free to reach any agreement they wish.

Generally, the purpose of pre-nuptial agreements is for spouses to waive their respective rights to alimony, maintenance, inheritance rights, and so on. Such waivers are not permitted under Italian law, as they are considered a violation of both internal and international public order principles:

  • Internal public order principles are Italian laws that are, as a rule, mandatory, but can be overridden by foreign law in certain circumstances.

  • International public order principles are considered core principles of the Italian legal system, and are common to most western states. They cannot be overridden by foreign law in any circumstances.

Spouses of different nationalities can choose the law of nationality or residence of one of them to govern their marital property (derogating from the law of common nationality or the law of the place where family life is predominantly established) (Article 30, Law 218/1995), provided that it is not contrary to international public order.

The enforceability of foreign pre-nuptial agreements in Italy, even between two foreign citizens who have chosen foreign law to govern their relationships, is unclear at best. There is very little case law on the point.

Two Supreme Court decisions (3/5/1984 number 2682, and 28/5/2004 number 10378) seem to confirm that pre-nuptial agreements are effective in theory, even if entered into between an Italian and non-Italian citizen, since according to Article 30 of Law 218/1995, spouses are entitled to choose a foreign law to govern their marital property. However, the Supreme Court pointed out that if any specific clause of a pre-nuptial agreement derogates from the obligatory rights and duties arising from marriage under Article 160 of the Civil Code, it would be considered null and void.

However, even if certain clauses of the agreement may be considered null and void, the principle of severability permits other clauses to be considered valid and binding (for example, the choice of the law governing the spouses' marital property under Article 30 of Law 218/1995).

Supreme Court case law is clear in denying the validity of pre-nuptial agreements governed by Italian law (Supreme Court decision, 25 January 2012, number 1084). This decision considers any agreement for an economic settlement reached before the divorce between the spouses to be null and void. Supreme Court case law is not as clear in relation to foreign pre-nuptial agreements. However, a lot of scholarly opinions have been published in favour of their lawfulness and, in particular, as to the validity and enforceability of foreign pre-nuptial agreements.

A recent decision of the Supreme Court (21 December 2012, number 23713), seems to suggest that the strict approach may be reconsidered. In a case governed by Italian law, the court declared an agreement between the spouses to be valid. Under the agreement one spouse was bound, in case of divorce, to transfer ownership of certain real property to the other spouse, who had contributed to the refurbishment of another property owned by the transferring spouse.

The court pointed out that such an obligation is "within the framework of so-called "pre-nuptial agreements" […], often used abroad, particularly in Anglo-Saxon countries, where they have the very useful role of defusing situations in family disputes and divorce".

Keeping in mind its own strict view about pre-nuptial agreements, the court confirmed that agreements of this kind cannot be considered null and void as such, but only if they do not protect the weaker spouse as the only party entitled to claim nullity.

It stated the following important principle. Only if the obligation (in this case, the transfer of real property) could be considered a type of "punishment" in case of divorce would it violate the intangible principle of free determination to divorce, and would therefore be null and void. However in this case, as the obligation to transfer the property matched the economic sacrifice already made by the spouse who had borne the costs for restructuring the other spouse's apartment, it can be considered valid.

The divorce that "triggered" the obligation is only considered here to be a valid "suspensive condition", as per Article 1353 et seq. of the Civil Code. This led the court to state that it is an atypical contract, an expression of free negotiation by the spouses, aimed at meeting interests worthy of protection, according to Article 1322(2) of the Civil Code.

In another recent decision (21 August 2013, number 19304), a clause in a loan agreement entered into between spouses, in which the repayment obligation was subject to the future and uncertain condition that they would separate, was found to be valid and enforceable by the Supreme Court. In the authors' opinion, these decisions could be considered a watershed. It should now be possible to structure pre-nuptial agreements in accordance with these principles, to try to have them recognised as valid in Italy, and they could, in certain cases, not be considered contrary to Italian public order.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

Italy permits and regulates:

  • Civil marriage.

  • Concordat marriage (matrimonio concordatario), celebrated according to the Catholic rite, regulated by canon law and following the canonical form. This also has civil law effects recognised by the Italian Republic, by way of a specific agreement between Italy and the Holy See.

  • Marriage celebrated by ministers of non-Catholic faiths (Article 83, Civil Code) specifically recognised in Italy.

Marriages are recorded in the civil registry (registro di stato civile) of the relevant municipality.

Resident and non-resident foreigners are entitled to marry in Italy under Article 116 of the Civil Code. This article provides that the marriage is valid, provided that:

  • The limitations in the following Civil Code articles are not contravened:

    • Article 85 (no person of unsound mind can contract marriage);

    • Article 86 (no person bound by a previous marriage can contract marriage);

    • Article 87 (marriage cannot be contracted between ascendants and descendants in direct line, full or half siblings and persons connected by affinity in a direct line);

    • Article 88 (no marriage can be contracted when one of the spouses has been convicted for the murder or attempted murder of the spouse of the other); and

    • Article 89 (a woman cannot contract marriage until 300 days from the dissolution, annulment or cessation of the civil effects of her previous marriage have passed); and

  • Both bride and groom provide evidence that they are entitled to marry according to the law of their country of origin, through an authorisation certificate of no impediment (nullaosta) issued by the relevant authority in their country. If, according to the non-Italian law, the authorisation certificate is subject to conditions considered against public order, for example conversion to a specific religion, the foreign conditions will not apply, and the authorisation certificate is considered not subject to such conditions.

Celebrations in Italy of non-Catholic religious marriages between foreign citizens have civil law effects if there is a specific agreement between Italy and that particular faith. If there is no such agreement, the designation of the religious minister who celebrates the marriage must have been approved by way of a decree of the Minister of Interior, and the registrar must issue a specific written authorisation of that marriage ceremony.

Marriages celebrated abroad or before a foreign consular authority in Italy for Italian resident foreign citizens can be registered in the civil registry, as per Article 19 DPR 396/2000, if expressly provided for in a specific convention with that foreign country. To be registered, the marriage certificate must be accompanied by a sworn translation into Italian, be legalised and apostilled.

According to a recent decision of the Council of State (Consiglio di Stato), later agreements between foreign spouses (for example, an agreement to choose Italian law as governing the personal and marital property relations between them and to select the separation of assets regime (see Question 5) can be annotated in the margin of the marriage deed. However, registrations of foreign marriages only have informative value, not the probative value of certainty.

A marriage is formally valid in Italy if it is valid according to one of the following (Article 28, Law 218/1995):

  • The law of the place where the marriage was celebrated.

  • The law of the country of nationality of at least one party at the moment of celebration of the marriage.

  • The law of the state where the couple were jointly resident at the time of the marriage.

The only marriages not recognised in Italy are marriages that are contrary to public policy, such as polygamist marriages or marriages of minors without authorisation. They cannot be registered in the civil registry.

Divorces/annulment

A foreign decision declaring a divorce is recognised in Italy without the need for any further proceedings, provided the following criteria are met (Article 64, Law 218/1995 and Article 21, Brussels II Regulation):

  • The judge who issued the decision was empowered to do so.

  • The defendant was notified of the proceedings and his/her right to a defence was not violated.

  • The parties appeared before the court and the trial is not defective according to the foreign local law.

  • The decision is no longer appealable under the foreign local law.

  • The decision is not contrary to another non-appealable Italian decision.

  • There are no Italian proceedings still pending between the same parties and concerning the same matter which was initiated before the foreign proceedings.

  • The decision does not go against the rules of Italian public order.

These requirements will be ascertained by the registrar when registration of the decision is requested.

The matter only needs to be brought before the Court of Appeal if the foreign decision is not recognised, the recognition is challenged or enforcement of the foreign decision is required (Article 67, Law 218/1995).

Civil partnerships

Civil partnerships are not regulated under the Italian system, which does not even recognise foreign civil partnerships (see Question 26).

 

Divorce

7. What are the grounds for divorce?

Divorce

A divorce can be by consent between the parties or contentious.

The decisive factor in obtaining a divorce is showing that the spiritual and material communion that once existed between the spouses has disappeared and can no longer be rebuilt. The grounds for divorce are set out in Article 3 of the Divorce Law 898/1978, which specifies that divorce can be requested if, after celebration of the marriage, the circumstances detailed in that article apply.

The most common grounds for divorce are filed under letter (b) paragraph 2 of Article 3 of the Divorce Law, when a judicial separation has been ordered or a separation by mutual consent has been established between the spouses before the president of the court (see below, Judicial separation). Before presenting the petition for divorce, until recently at least three years had to have passed from the date of separation, that is, from the date of the first hearing for separation.

On 22 April 2015, the House of Representatives gave its final approval to the "Fast-track Divorce Law" (which is currently awaiting the signature of the President of the Republic and will then be published in the Official Gazette). The law amended Article 3 letter b) paragraph 2 of the Divorce Law, providing that a divorce can be requested after 12 months from the appearance of the spouses before the president of the court in the case of judicial separation, and after six months in cases of separation by mutual consent. The law also changed the point at which the spouses' common property ownership ends. Before it used to end when the separation order became final, under the new law it ends when the spouses are allowed to live apart by the court. The new time frames will also apply to proceedings which are already pending.

If the separation is informal and not registered, these time frames (12 or six months) will not start to run. Any interruption of the separation period, such as reconciliation, results in the cancellation of the time accrued up to the day of the interruption. Therefore, if the parties again decide to proceed with divorce, they must begin the period of separation again.

Other grounds for divorce are:

  • One of the spouses being sentenced to life imprisonment or to a prison term exceeding 15 years.

  • Aggravated assault or the "taking advantage of a weaker person" to the detriment of the spouse or the children.

  • The marriage has not been consummated.

  • A final declaration of sex-change of one of the spouses.

No minimum duration of the marriage is required before a divorce can be requested, except for the three-year period under paragraph 6 (see above).

Nullity

Either or both of the spouses, their direct ascendants, the public prosecutor and anyone else who has a lawful and current interest, can start proceedings to have a marriage declared null and void (Article 117, Civil Code). The grounds to file such an action are set out in Articles 84, 86, 87 and 88 of the Civil Code, and relate to a marriage contracted:

  • While a party is already married.

  • By a minor not authorised by the court.

  • Between related spouses.

  • When one of the spouses has been convicted for the murder of the spouse of the other party.

  • By a woman before 300 days have passed from a previous separation, annulment or divorce.

  • By a non-competent person, or if one of the spouses was not of sound mind.

  • After consent has been extorted by threats or by the instilling of considerable fear.

  • Due to a mistake made by one of the spouses as to the identity or the essential qualities of the other spouse.

The proceedings take place as an ordinary trial. The effects of the nullity are applied differently in time, depending on the good or bad faith of the spouses and whether there are children.

Judicial separation

Under Italian family law and in relation to parties subject to Italian law, no spouse can start divorce proceedings before first obtaining a court order declaring a legal separation (see above, Divorce).

Legal separation can be requested by one or both of the spouses when, even independently of the will of the spouses, such facts occur that make the continuation of cohabitation intolerable or cause serious prejudice to the upbringing of the children.

Legal separation is mutual if the spouses agree to the separation and its conditions. Such proceedings will normally involve a single hearing and the approval of the court.

In contrast, legal separation is judicial if the spouses disagree on the separation and/or on its conditions. These proceedings involve an ordinary judicial process, with the giving of evidence and a final decision.

 

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

The economic and legal status of the family is that of common ownership of property (Article 159 et seq, Civil Code). Real and personal assets purchased jointly or individually by the spouses during the marriage fall under common ownership, except those specified in Article 179 of the Civil Code (mainly personal and inherited assets). Individual ownership can be achieved when the purchasing spouse uses money which was already his/her exclusive property. This status can be changed by the spouses if they desire (see Question 5).

Common ownership of property ends when the spouses separate (article 191, paragraph 2, Civil Code) introduced by the Fast-track Divorce Law. At the time the parties are allowed to live apart, each spouse becomes severally the owner of 50% of the family assets. However, the judge presiding over the separation or divorce proceedings only has power to issue orders for alimony (maintenance for the spouse) and/or child support. The judge has no power to issue orders to transfer assets (real or personal) or allocate financial resources from one spouse to the other, therefore any related dispute must be brought in separate ordinary proceedings.

In cases of separation by mutual consent or joint petitions for divorce, the judge can approve the parties' agreement to transfer real estate properties or related in rem rights between them. However, such an agreement, even if approved by the court, will only bind the parties and will not directly transfer the property. A subsequent notarial deed is required to transfer the property.

However, an Italian judge, while applying foreign law in cases of foreign spouses separating or divorcing in Italy under Law 218/1995, can order the division of assets or the allocation of financial resources from one spouse to the other, if this is permitted under the foreign law. Recently, the Ordinary Court of Milan, applying South African law (under Article 31 of Law 218/1995), issued a decision (6599/2012) pronouncing a divorce under South African law. The court ordered the equal division of the spouses' assets wherever located (including outside Italy) which had been purchased after the wedding (some jointly, some individually) by transferring ownership quotas from one spouse to the other (even though this is not permitted under Italian divorce law).

 
9. What factors are relevant to the exercise of the court's powers?

The procedures for claiming ownership of 50% of assets acquired during the marriage (if the spouses used to enjoy a common ownership regime) follow the ordinary rules (see Question 8), so there are no particular factors that courts take into consideration. In determining maintenance obligations the judges refer to the income and assets of both spouses. In addition, during separation the court should theoretically establish the amount of maintenance to be paid to the weaker spouse so as to provide him/her with the same standard of living enjoyed during the marriage. Conversely, when determining maintenance of the weaker spouse during divorce proceedings, the judge is to consider whether that party is objectively able to support himself/herself, such as through employment if he/she has the ability to work.

 
10. What is the court's current position on the division of assets?

Because the court does not have the power to issue orders for the transfer of assets in separation and divorce proceedings, there are no cases on this particular issue (see Question 8).

Division and the possible (forced) sale of assets does not take place during separation/divorce proceedings but through separate proceedings, that can even take place at the same time as the separation/divorce trial (Court of Cassation 26/2/2010, decision number 4757).

 

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

Maintenance payments can be awarded both after separation and after divorce. To determine the amount of alimony, the respective income and assets of each spouse are taken into consideration, including any property deriving from the separation of ownership. The reasons for the limited financial means of the spouse to be supported are also considered.

If one of the spouses is declared "guilty" for the separation, he/she will not be entitled to request alimony. Even if the guilty spouse is not entitled to receive alimony, if the specific requirements detailed in Article 438 of the Civil Code apply (he/she is in a state of need and cannot support him/herself), he/she will be entitled to receive basic support.

On dissolution of the marriage, if the spouse entitled to alimony cannot provide for themselves for objective reasons (that is, an inability to work due to disability, old age, and so on), alimony is established accordingly. If the spouse is able but unwilling to support himself/herself, or is negligent in taking measures to that end, alimony may be reduced or even denied altogether (Divorce Law).

In determining the amount of alimony, the court must consider the:

  • Conditions of the couple.

  • Reasons for the decision.

  • Personal and financial contribution to the family given by each spouse.

  • Assets of each party or the common property and the income of both parties.

Having evaluated all these elements, even in light of the duration of the marriage, the court can order one of the spouses to periodically pay an allowance in favour of the other. There is no set timeframe for the payments, although they tend to be made monthly.

In place of alimony, and only when the divorce is pronounced, it is possible to make a one-off payment to the spouse entitled to support, provided both parties agree and the judge approves the amount of the payment. In this case, no further request of a financial nature can be submitted. Such a one-off payment is not tax deductible, unlike regular long term periodic alimony payments.

In cases of separation or divorce, the parties must present income statements and any other documentation relating to revenue or personally and commonly owned property. In cases of dispute, the judge can order an investigation of incomes, assets and lifestyle, and can refer the matter to the tax and revenue authorities. The obligation to pay alimony ceases if the spouse to whom the alimony is being paid remarries.

 
12. Is it common for maintenance to be awarded on marital breakdown?

It is quite usual for the court to issue maintenance orders. The main problem is in getting a clear picture of the spouse's income and assets (see Question 13).

 
13. What is the court's current position on maintenance on marital breakdown?

There are currently no automatic percentages to be applied to calculate alimony. Even though there is no specific principle of equity, a judge in Italy can use his discretion and will determine alimony on a case-by-case basis.

Case law has clarified that the weaker spouse is entitled to receive alimony if (Supreme Court, 23 May 2014, no. 11517, 14 November 2011 no. 23776 ):

  • He/she does not have adequate income to maintain the same lifestyle that he/she enjoyed during the marriage.

  • There is an imbalance between the income and general wealth of the entire position of the weaker spouse and the wealthier spouse.

Therefore, not only the income of the wealthier spouse must be considered, but also their total assets, including real estate, stocks, shares and so on (Court of Cassation 24/4/2007, decision number 9915).

According to case law, alimony in separation cases is based on the inadequacy of the means of the weaker spouse, being insufficient to allow him/her to enjoy the same standards of living as enjoyed during the marriage, even in cases where the weaker spouse is wealthy but is still not able to conduct the same standard of living enjoyed during the marriage (Supreme Court, 28 October 2013, no. 24252).

It is possible to amend separation/divorce decisions if a change in the circumstances of the spouses or the family has occurred (Article 156, paragraph 7, Civil Code and Article 9, paragraph 1, Law 898/1970). Financial orders issued during separation or divorce proceedings are never final.

 

Child maintenance

14. On what basis is child maintenance calculated?

Parents must maintain, educate and instruct their children, taking into account their ability, natural inclination and aspirations, and must fulfil this obligation in proportion to their respective means and according to their working ability, both professionally and at home (Articles 147 and 148, Civil Code).

A judge who declares separation and/or divorce must also set the amount and manner in which each parent is to contribute to the child's support, care, education and upbringing (Article 155, Civil Code). Similarly, the court must establish to what extent and in which manner the non-custodian parent must contribute to the support, care, education and upbringing of the children (Article 6, paragraph 3, Divorce Law).

Unless the parties come to a different agreement, each parent is responsible for the support of the child proportionally to his/her income and earning capacity. The judge, where necessary, will order one party to make child-maintenance payments.

The same criteria used for determining spousal maintenance are used in determining the amount of child support (see Question 11). In a mutually agreed separation, the spouses can agree the amount of child maintenance. As in cases of mutual separation, in joint petitions for divorce the court will approve the parents' agreement.

The obligation to support children lasts at least until the child is economically independent, even if he/she becomes of age before then, unless he/she is guilty of neglecting his/her duties (ex multis Court of Cassation 17/11/2006, decision number 24498). However, this factor is to be decided by the court (Supreme Court, 8 February 2012, no. 1773).

A court decision (Tribunal of Florence, 3/12/ 2007, number 3931) used, for the first time, a specific model with determined elements and an index to calculate maintenance. This decision is important, as determination of the maintenance amount has usually been left to the judge's discretion.

 

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

The enforcement of Italian financial orders follows the ordinary rules for execution. Enforcement is legally based on the separation or divorce judgment, and any temporary orders issued by the judge while the separation/divorce proceedings are pending.

Italian law provides two measures to enforce financial orders:

  • A preventive measure, allowing the judge to require security, such as a personal guarantee or collateral security from the party who has to pay alimony.

  • A measure actionable only in case of default. This allows the creditor spouse to request seizure of the assets of the defaulting spouse, or to seek an order against a third party (such as the defaulter's employer, tenant or pension institution) to pay part of the amount directly to the creditor spouse. The real or personal property of the defaulter can be seized, along with his/her financial assets.

 

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

To enforce foreign financial orders in Italy, both in relation to EU and non-EU orders, an exequatur as per Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) and the Hague Convention on the law applicable to spousal and child maintenance obligations 1973 is required, by way of proceedings before the Court of Appeal.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

Following separation or divorce, both parents retain parental responsibility ("parental authority" has become "parental responsibility" under Law 219/2012 and Legislative Decree 154/ 2013, which have removed the distinction between proceedings related to the custody of children born during marriage and those born out of wedlock). The underage child has the right to maintain a balanced and continuous relationship with each parent, and to receive care, education, schooling and moral assistance from both parents. Law 54/2006 introduced shared custody as the preferred arrangement for the custody of children, as this way both parents must actively participate in the care and education of their children, jointly making any major decisions regarding the child, and taking into consideration his/her best interests (even if the child is living with only one of the two parents). Sole custody is now only ordered where it is impossible for the children to be assigned to both parents. The custodial duties are divided and allocated by the court in the most appropriate manner. Article 155 of the Civil Code, as amended by Law 54/2006, regulates this matter.

If the parents come to an agreement as to the child's upbringing, the judge will accept the agreement and only determine the placement, residence and visiting times of the child. If the parents have not reached an agreement, the court will rule on the spheres of action of each parent, eliminating any form of commonality in the child's routine activities.

Cases where the judge grants sole custody to one of the parents are now very rare in Italy, and require positive proof that it is in the best interests of the minor (cf. ex multis Court of Cassation, sez. I, 17 February 2009, decision number 26587 in Foro it., 2010, I, 428). However, even in cases of sole custody, the non-custodian parent must still be consulted and involved in major decisions relating to the child.

In relation to same-sex couples, a recent Supreme Court decision granted sole custody of a child from an earlier marriage to a lesbian mother living with another woman. The court declared that "there is no scientific certainty proving that a minor cannot grow up in a balanced way with a same sex couple" (Supreme Court decision no. 601, 11 January 2013).

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

Although according to Law 54/2006 parents exercising shared custody rights do so with absolute equality, this does not mean that the child should be placed with both parents and spend the same amount of time with each of them. It is unlikely that the child's best interests will be served by continuously alternating between the homes of the parents. Exceptions are made in special cases, where the interests of the child are best met by spending an equal amount of time with each parent. In most cases the minor will live mainly with one parent, spending most of the time with her/him.

Even if not expressly stated in the legislation, the court therefore decides with which parent the child is to be based, taking into consideration that this residence must be the core of the child's interests and relationships.

Consequently, to ensure the least disturbance to the child's habits and environment, necessary for their peaceful and balanced development, the judge is to order that the family home be awarded to the parent with whom the child is placed (Article 155 quarter, Civil Code).

However, despite the fact that the child's centre of interests is located with one of the parents, both parents must have absolute equality in the tasks of education and care, and the possibility of dealing with the child.

The court must also determine the manner and timing of the child's stay with the other parent. If there is dialogue and collaboration between the parents, the court may limit itself to broad and generic terms such as "when the parties decide", "prior arrangements" and "according to mutual agreement". In cases of conflict, the judge must decide on a specific and precise visiting timetable.

In practice, in the event of conflict between the parents, the visiting regime has remained largely unchanged with respect to the situation prior to the reform, when single-parent custody was the norm.

 

International abduction

19. What is the legal position on international abduction?

This area is governed by the Hague Convention on the Civil Aspects of International Child Abduction 1980, ratified in Italy by Law 15/1/1994, number 64.

Article 12, Chapter III of this convention provides that an order for the immediate return of a child can only be issued in the case of wrongful removal of a child from the person actually exercising custody. If the custodian parent is moving abroad, the non-custodian parent can only apply to have their access rights rendered effective.

In Italy, the designated central authority involved in having a child returned is the Ministry of Justice, Office for Juvenile Justice.

If a foreign minor is abducted and brought to Italy, a petition for repatriation can be filed, either through the foreign designated central authority or directly at the Italian Ministry of Justice. While the authority examines the petition, the Italian police will locate the child and make initial contact with the parent who removed the child, to evaluate if he/she is willing to return the child.

If this attempt fails, the central authority sends the petition, with all the documentation, to the office of the public prosecutor in the juvenile court where the minor is located and a hearing is scheduled. The parent filing the petition can participate in the hearing to set out his/her position. The court will also hear the parent who removed the minor.

Although the parties can appeal the decision before the Supreme Court, the decision of the juvenile court is immediately actionable and is not suspended by the lodging of an appeal.

 

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

A child is subject to the authority of its parents until majority or emancipation (Article 316, Civil Code). The authority is exercised by both parents by mutual agreement.

In the case of separation and/or divorce, if shared custody is granted, both parents exercise parental authority. Therefore, any decision regarding the minor must be made jointly, taking into consideration the best interests of the child. It is now undisputed that when parents have shared custody, the decision of moving the child's residence overseas must be agreed on by both parents and, in default of this, by a court (Bologna Juvenile Court, 6 February 2007 in Famiglia e dir., 2007, 813, n. ARCERI).

If the parents are not in agreement, the principles of Italian law regarding the rights and duties of parents require authorisation of the court for moving a minor abroad, both in the case of shared custody and sole custody.

This interpretation appears to be supported by some precedents, which state that although there is no limitation to granting custody to parents residing, or wishing to reside, abroad, a deeper evaluation of the best interests of the child is needed, making particular reference to the possible move.

There are no set rules as to when an application by a parent to remove his/her children from Italy against the wishes of the other parent can be made. The judge must review each matter on a case-by-case basis to ascertain the best interests of the child.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

Law 40/2004 prohibits surrogacy agreements in Italy. Anyone who produces, organises or advertises the sale of gametes or embryos or surrogacy in any form is to be punished (Article 12, Law 40/2004).

Although the law does not impose criminal responsibility on Italian intended parents who enter into surrogacy agreements outside Italy, they may face criminal charges when they return to Italy with the child born from the surrogate mother. This stems from the fact that, according to Italian law (Article 269 paragraph 3, Civil Code) a woman who gives birth to a child is that child's mother. Therefore, in theory, the registration of the newborn in the register of births as the child of the intended mother could be construed as the offence of tampering with the civil registry (Article 567 paragraph 2, Criminal Code).

The case law in this area is not consistent. For example, there have been appeal decisions (Bari Court of Appeal decision, 13 February 2009, and Naples 14 July 2011) recognising the possibility of registering a child born under a surrogacy agreement reached outside of Italy. However, the Supreme Court recently dealt with the same issue for the first time and denied the possibility (Supreme Court, 11-11-2014, no. 24001). However in this case, neither purported parent wanting to register the baby as their own had any biological ties with the child. Therefore, the Supreme Court found that surrogacy in this case is in conflict with the system of adoption, as under Italian law, adoption is the only method to result in parentage where there are no biological ties with the child.

Law 40/2004 which prohibits surrogacy has recently been declared unconstitutional by the Constitutional Court (decision no. 162, 10 June 2014) for the prohibition of heterologous fertilisation, which is now permitted in Italy in the case of absolute and irreversible sterility or infertility.

 

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Under Italian legislation there are three types of adoption:

  • Full and legitimating adoption (adozione piena e legittimante) (Articles 1 et seq, Law 184/1983).

  • Adoption in special cases (Articles 44 et seq, Law 184/1983).

  • Adoption of adults (Articles 291 et seq, Civil Code).

There are two procedures for full adoption, depending on whether the adopted child is Italian or foreign (Law 184/1983). National and international full adoptions are only available to couples who have either been married for at least three years or have cohabitated for three years prior to the marriage. With this kind of adoption the minor severs all ties with their family of origin and acquires the status of a legitimate child in the new family.

For national adoptions the juvenile court must ascertain that the applicant parents match all the requirements listed by law (Article 6, Law 184/1983) and that the minor is adoptable (full national adoption is available for abandoned or orphaned minors with no relatives up to the fourth degree of kinship who can take care of them). The court then orders a preliminary year of pre-adoption fostering, and after that time, the adoption order is issued. If during the year of pre-adoption fostering the applicant parents separate, in the interests of the minor, adoption can be granted to just one parent, as the requirements to be met by the adoptive parents need only exist at the time of issue of the pre-adoption fostering order.

When the adoption order becomes final, the adoption is effective and it is noted in the margin of the birth registry by the registrar.

there are special cases of adoption, but it does not give rise to a legitimate parent-child relationship replacing that of the family of origin. It establishes a relationship of adoptive affiliation that joins and adds to the family of origin. The adopted child retains the rights and obligations vis-à-vis their original family and, at the same time, acquires them in relation to their adoptive family. The child keeps his/her original surname, hyphenating it after the surname of the adopting parent, and has inheritance rights from both the natural and adoptive families. However, the adopting parents do not acquire survivorship rights over the adoptee, and the child has no legal relationship with the relatives of the adopter.

This is the only kind of adoption available to unmarried persons. It is only allowed in the following specific cases provided for in Article 44 of Law 184/1983:

  • The minor is an orphan and the adopter is a relative within the sixth degree of kinship or, as an unrelated person, established a long term relationship with the minor before the death of the parents.

  • The minor is an orphan and is disabled (Article 3 paragraph 1, Law 104/1992).

  • The impossibility of pre-adoption fostering has been ascertained.

Other special rules relating to adoption

Article 37bis of Law 184/1983 provides that the laws governing national adoption apply to foreign minors abandoned in Italy.

Adoption declared abroad on the application of Italian citizens who have resided in that foreign country continuously for two years is recognised in Italy, if the conditions set out in the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption 1993 are met (Article 36, Law 184/1983).

The decisions of the Supreme Court number 3572 of 14 February 2011 and the Tribunal of Caltanissetta of 18 July 2011 found that unmarried couples can obtain recognition in Italy of a foreign decision ordering an adoption, but only with the effects of special cases adoption and not of full adoption. The judges of the Supreme Court held that full adoption is only permitted for married couples, but invited the government to extend the possibility for unmarried people in particular circumstances to adopt children with full adoption effects.

Recently the Juvenile Court of Rome (decision of 30 July 2014) has allowed a lesbian woman to adopt the daughter of her stable partner (using the special cases adoption procedure) considering the prevailing interest of the child who had lived from birth with the two women and whom she had always considered to be her parents. The court did not consider the fact that the adopter was homosexual to constitute a hindrance.

Articles 2 to 4 of the law governing adoptions (Law 184/1983, as amended by Law 149/2001) also govern foster care. The temporary nature of custody distinguishes it from adoption and assumes there is an unsuitable family environment (for example, in cases of illness, imprisonment, drug abuse, neglect or violence). The foster care does not provide for the replacement of the original family. The child must stay in touch and remain involved with their original family. The order for foster care, which is made by social services, is ratified by the probate judge in cases in which there is the agreement of the family of origin (consensual fostering) and by the juvenile court when there is no parental consent (judicial custody). Both couples and individuals can be foster parents and the duration of the foster care can range from a brief period (six/eight months) up to a maximum period of two years, which can be extended by the juvenile court in cases of particular gravity. Foster care can in practice be extended for an indefinite time. There have been some recent decisions (within the area of temporary foster custody) to temporarily entrust children to homosexual couples (Juvenile Court of Bologna decision of 31 October 2013, Juvenile Court of Palermo decision of 9 December 2013).

 

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

Under Italian legislation, marriage is considered the only personal relationship having any legal effect. Therefore, there is no legislation governing cohabitation.

Although cohabitation is fairly widespread, there is to date no jurisprudence establishing that financial support during the life of the relationship is the responsibility of one of the cohabitants. This derives from the fact that any disbursement or expenses from one party in favour of the other is considered merely a duty dictated by moral principles.

It follows that there is no law providing for the payment of alimony on the cessation of the relationship, even if the end of the relationship is unjustified.

One limited effect of cohabitation is the partner's right of succession under rental contracts.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

Until recently, the only non-judicial process to resolve disputes between spouses was under Article 337 octies of the Civil Code. The Article provides for the court's ability to suggest a mediation process at the beginning of the proceedings; however mediation does require the consent of both spouses. When a judge orders family mediation, all temporary and urgent measures (governing relations between spouses for the duration of the process) are postponed. This is to enable spouses, with the help of experts, to reach an agreement, particularly in relation to the protection of the moral and material interests of any children. If an agreement is reached between the parties, it can be written as a record of separation by mutual consent (or a joint application for divorce) but the contents must still be approved by the court.

Law 219/ 2012 and Legislative Decree 154/2013 (which have removed the distinction between proceedings related to the custody of children born during marriage and those born out of wedlock) have introduced Article 337 bis Civil Code. The Article provides that all provisions of Chapter II of Title IX of the first book of the Civil Code (which includes the above mentioned Article 337 octies governing family mediation) also apply to proceedings for the children of unmarried parents.

Only recently, Legislative Decree 132/ 2014 created two non-court based procedures that can be used to achieve separation, divorce or modification to pre-existing separation/divorce arrangements either by:

  • Agreement before the civil registrar (Article 12).

  • Lawyer assisted negotiation (Article 6).

An agreement concluded before a civil registrar produces the effects of a court order from the date of the deed containing the separation agreement or divorce.

Similarly, an agreement negotiated by lawyers that must be authorised by the public prosecutor, produces the same effects as a judicial decision. Therefore the term for lodging the application for divorce will run from the date of the authorisation of the prosecutor's office. The terms of such an agreement are enforceable, and the agreement is a valid document for obtaining a mortgage. The ownership of real estate can also be transferred with such an agreement, but the deed must be authenticated by a public officer.

A spouse that refuses a request to take part in assisted negotiations for separation or divorce will be assessed by the court in any subsequent proceedings for the purposes of sentencing to pay the costs and damages for having acted in bad faith or gross negligence. If one of the lawyers participating in the drafting of the agreement later challenges its contents, he may also be ordered to pay costs and damages for improper conduct.

Arbitration is not available in family law matters (Article 806, Civil Procedure Code).

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Non-judicial proceedings are not mandatory and can only be pursued by agreement of the parties.

In addition, an attempt to reach a mediation agreement is not a condition of admissibility for the application for separation or divorce.

Law Decree 132/2014 introduced the possibility of obtaining assisted negotiation in separation and divorce matters, in the event that there is agreement between the parties. The law provides for two different procedures:

  • Article 12 states that spouses are entitled to separate or divorce without the need for court proceedings, by simply filing a request with the civil registrar, provided:

    • the couple do not have underage children, or adult children who are legally incompetent, severely handicapped or not economically self-sufficient;

    • the separation/divorce agreement does not relate to patrimonial issues, such as the assignment of the family home or maintenance of either spouse.

      The couple will be called again after thirty days to confirm the agreement.

  • Article 6 provides that spouses can request separation, divorce or changes to the conditions of separation or divorce through an assisted negotiation agreement reached with the help of lawyers, and with no need for judicial proceedings. This type of negotiation can be carried out regardless of whether there are underage children or adult children who are severely handicapped or not economically self-sufficient. The steps of the procedure under Article 6 are as follows:

    • a spouse requests a lawyer for assistance to negotiate;

    • the lawyer sends a written invitation to the other spouse to reach an agreement;

    • the other spouse can accept the invitation, with or without the assistance of another lawyer;

    • if an agreement is reached, it is sent to the Public Prosecutor to obtain authorisation, the form of which differs depending on whether or not there are underage children;

    • the agreement is sent to the registrar of the municipality in which the marriage was registered, to be noted.

    The process must be completed in a period of time determined by the parties, which cannot be less than one month or more than three months. An extension for a further 30 days can be decided by agreement of the parties.

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

Currently in Italy, homosexual couples do not have the right to marry or even register their marriage celebrated abroad. Civil partnerships are also not envisaged under Italian legislation, which does not recognise foreign civil partnerships.

The Court of Grosseto's decision on 3 April 2014, ordered the transcription to the public register of a same-sex marriage celebrated in New York between two Italian citizens, stating that a marriage celebrated abroad between homosexual persons can be transcribed. The court declared that because there is no impediment in the Italian system to the registration in the civil status records of marriages contracted abroad in accordance with foreign law, the transcription has no effect other than certifying and acting as notice of an act that is already valid.

However, the decision was overturned on 23 September 2014 by the Florence Court of Appeal, which ordered the cancellation of the registration. Following this decision, many municipal authorities issued measures authorising the transcription of same-sex marriages celebrated abroad into registers of civil status. This led the Interior Minister to issue circular no. 0010863 on 7 October 2014 in which he ordered the police prefects to invite the relative mayors to withdraw the measures and cancel any transcriptions made so far. The police prefects then issued orders by which they cancelled the transcriptions.

The Regional Administrative Court of Lazio, by decision no. 3907 of 9 March 2015, upheld the appeals against the prefects' orders. The administrative judge said that the current national legislation does not allow the performance of marriages between same-sex individuals and consequently such marriages cannot be entered in the registers of civil status. However, the cancellation of transcriptions in the civil register of marriages contracted by people of the same sex celebrated abroad can only be initiated by the ordinary courts, the interior minister and the prefectures not having the power to intervene directly by cancelling the transcriptions.

In addition, currently 178 Italian municipalities have instituted registers of civil unions in which heterosexual and homosexual couples, who are not married but have lived together for at least a year, can register. The value of such registration is, for the most part, symbolic. There are only a few municipalities, such as the city of Palermo, where the registration grants unmarried couples (including homosexuals) the same access as married couples to municipal services (with the introduction of a self-certification system that allows access to various services including housing rights, health and social services, sports and leisure, school and educational services, rights and participation and transport).

However, court decisions have granted same sex couples certain specific rights. The Reggio Emilia Tribunal decided that since European citizens have the right to freely move their residence within the EU together with their family, a non-EU man who legally married an Italian in Spain has the right to obtain a residence card in Italy if his husband decides to set up home in Italy (13 February 2012).

Similar decisions on other specific issues have granted same-sex couples the same rights as heterosexual couples, such as the right:

  • To damages for unlawful death.

  • To sublet real property.

  • Of a same-sex partner not to witness a signature.

  • Of a same-sex partner to be registered with a supplementary insurance institution.

Even though recent proposals have been presented to parliament to regulate this matter, at present no legislation governs same-sex marriages. However, recent interpretations of laws issued by the European Parliament have affected the attitude of the Italian Supreme Court.

The Constitutional Court has refused a petition calling for a ruling that the Constitution guarantees the right of two persons of the same sex to marry, but also stated that (2010, decision number 138):

  • Homosexual unions, understood as the stable cohabitation of two people of the same sex, can be considered as part of the social formations regulated by Article 2 of the Constitution, to which the fundamental right to freely live as a couple belongs.

  • It is up to parliament in its discretion to determine how such unions are to be recognised and guaranteed.

  • The Constitutional Court has the power to intervene in specific cases of discrimination between married couples and homosexual couples.

The Supreme Court has also stated that a stable homosexual couple cohabiting de facto has the right to family life, and that gender difference is no longer a prerequisite for the existence of marriage (decision number 4184, 15 March 2012). The court also stated that such a union cannot be registered in the civil registry, not due to its non-existence or its invalidity, but because such unions do not produce any legal effects in Italy.

The Constitutional Court has ruled regarding the fact that an existing marriage is no longer valid after the sex change of a spouse (Decision no. 170, 11 July 2014). The court stated that a law must be passed providing the couple with the opportunity to transform the relationship into another form of registered partnership, protecting their rights and obligations.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Pre-nuptial agreements, cohabitation, same-sex marriage and adoption by same-sex couples are areas of law in which there are current draft bills and Supreme Court precedents which may lead to significant changes in the near future.

An area that requires regulation is the reconstituted or blended family, when two people marry or cohabitate and one or both have at least one child from a previous relationship living part-time or full-time in the household. This kind of family and the step-parenthood stemming from it are becoming more and more common, but are regulated by ad hoc legislation, which is causing anomalies and hardships.

In addition, legislation should be passed governing new situations relating to minors in the different types of families that have come into being, such as unmarried couples or same sex couples who have either adopted or had surrogate children abroad. However, despite the fact that such families effectively exist, they are not regulated by law.

Parliament will soon present a bill on "direct divorce" that can be requested directly without prior separation when the spouses do not have underage children, adult children who are legally incompetent or severely handicapped or children under the age of 26 who are not economically self-sufficient.

In the presentation of the Fast-track Divorce Law, the speakers also presented a bill governing premarital agreements.

 

Online resources

Official Supreme Court

W www.cortedicassazione.it/corte-di-cassazione/it/sentenze.page

Description. The website of the Official Supreme Court, containing case law and in the Italian language.

Official European Law

W http://eur-lex.europa.eu/homepage.html?locale=it

Description. The official European law website containing European legislation in various European languages.

Official Gazette

W www.gazzettaufficiale.it/

Description. An official Italian legal website, containing Italian legislation and in the Italian language.



Contributor profiles

Andrea Russo, Partner

Pirola, Pennuto Zei & Associati

T +39 06 570282658
+39 06 570282641 direct
F +39 06 570282733
E andrea.russo@studiopirola.com
W www.pirolapennutozei.it

Professional qualifications. Lawyer, admitted to the Italian Bar and before the Supreme Court

Areas of practice. International family law, including among other things: appeals, child custody and support, divorce, enforcement, finance, Hague Convention issues, relocation/removal from jurisdiction, spousal support

Languages. Italian, English, Spanish

Professional associations/memberships. Fellow of the International Academy of Matrimonial Lawyers since 1994; Member of the International Bar Association Family Law Committee since 1987.

Publications. These include:

  • Family law, Jurisdictional comparison, European Lawyer, first and second edition, 2011 and 2013.
  • Aspetti fiscali nella Separazione e nel divorzio (Tax Issues in Separation and divorce) Cliens, Giuffrè 2011.
  • The Reform of the Italian System of Private International Law With Particular Regard to Domestic Relation Issues, North Carolina Journal of International Law and Commercial Regulation, 2000.
  • Guide to Family Law in Europe: Italian Chapter, SFLA, 1992.
  • Collaboration with Portale Telematico on Family tax matters: Giuffrè 2015

Benedetta Rossi

Pirola, Pennuto Zei & Associati

T +39 06 570282658
+39 06 570282640 direct
F +39 06 570282733
E benedetta.rossi@studiopirola.com
W www.pirolapennutozei.it

Professional qualifications. Lawyer, admitted to the Italian Bar

Areas of practice. International family law, including among other things: appeals, child custody and support, divorce, enforcement, finance, Hague Convention issues, relocation/removal from jurisdiction, spousal support.

Languages. Italian, English, French

Publications. These include:

  • Family law, Jurisdictional comparison, European Lawyer, first and second edition, 2011 and 2013.
  • Collaboration with Portale Telematico on Family tax matters: Giuffrè 2015.

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