THE ITALIAN MATRIMONIAL PROPERTY LAW
What happens to the assets under Italian family law if the marriage ends?
Italian family law regulates and determines what economic obligations married couples have towards their children and family, but only the spouses have the possibility to choose and decide on the matrimonial property regime of community of property or separation of property. A choice that is often made unthinkingly in youth, but which proves to be fundamental from a property law perspective when the relationship between husband and wife changes and the marital bond is terminated.
Briefly explained, these two types of property and the consequences of their termination under Italian law could be described as follows.
COMMUNITY OF PROPERTY UNDER ITALIAN FAMILY LAW
The community of property under Italian law ("comunione dei beni") is a legal system in which all assets acquired by a couple during the marriage belong to both parties in equal shares. This means that if one partner acquires property, the other partner has an equal right to it.
This system is useful for married couples who want to ensure that their assets are split equally in the event of a divorce.
From the day of the marriage, the acquired property begins to belong to both partners, so that each of them owns 50% of the property, including any debts. The only exception provided for relates to so-called personal property, i.e. property owned by the person before the marriage, which the marital partner also acquired during the marriage by inheritance or gift, which is intended for personal use or is considered necessary for the exercise of a profession.
SEPARATION OF PROPERTY UNDER ITALIAN FAMILY LAW
The concept of separation of property is an important part of the legal system in Italy. It is a legal principle that states that any assets or property acquired by one partner during the marriage should not be shared in the event of divorce or separation.
All goods acquired before or after the marriage remain the property of the spouse who paid for their acquisition. The only exception is property acquired jointly after the marriage.
In this case, the assets are split between the married couple at 50% or according to another percentage chosen by them, and this is referred to as ordinary community of property. It should be emphasized that under Italian family law such a matrimonial property regime does not release the partners from their responsibility towards the family. Even in this case, they must contribute to the necessary expenses for the maintenance of the family core according to their resources. Although these distinctions may seem quite intuitive, some problems arise when it comes to the separation or divorce of the married partners.
SETTLEMENT OF THE ASSET
If a marriage ends in divorce, the question of how the couple's assets should be divided is an important issue. The way in which the matrimonial property regime is divided varies greatly depending on whether it is community of property or separation of property.
If the regime chosen by the spouses was separation of property, no major problems arise, as all assets acquired by individual parties before or during the marriage remain in their exclusive possession
The case of the only doubts may relate to the assets that are included in the ordinary community of property. For their allocation, the rules provided by Italian family law regarding division must be followed, as this modality is the only mechanism to terminate the community of property. Generally speaking, since both spouses own a share of the property, it is usually transferred to the other spouse, who becomes the full owner of the property in exchange for the purchase of the share. Community of property under Italian law may pose greater problems. In fact, the legal community of property is defined as a community without shares, in which the spouses are the owners of all existing assets. The legal community of property is dissolved in two ways: In judicial separation, as soon as the president of the court allows the spouses to live separately, which happens at the first hearing, in consensual legal separation on the date of the signing of the protocol before the presiding judge, provided that it is then homologated. Upon receipt of the judgment, all assets are divided and the spouses are awarded 50% of all purchases from the date of marriage to the date of separation. The same treatment applies, for example, to real estate purchased exclusively with the money of one of the married partners. As we have seen, there are exceptions and these concern the individual's personal assets, which cannot be divided between the spouses but remain the exclusive property of the individual.
However, what happens if one of the spouses passes away?
In this case, the deceased spouse's assets form the inheritance. This means that all the property is split among the heirs in accordance with the will - or, in its absence, in accordance with the rules laid down by law. However, even in this case, the matrimonial property regime will play a role: In the case of community of property, the division among the heirs, in which the surviving spouse is also included, concerns only 50% of the assets, as the other 50% is considered to be already due to the spouse. In the case of separation of property, Italian family law stipulates that all of the deceased's assets, and not just half, go to the estate.