ITALIAN FAMILY LAW

A common misconception about the law applicable to marriage is that the place of marriage is important. However, this is not the case under either the old or the new law.

On June 21, 2012, EU Regulation 1259/2010 came into force, which significantly changed the previous system. 

According to this regulation, the habitual residence of the spouses is primarily relevant, but the regulation also allows the spouses to choose the law applicable to the divorce, going much further than the previous national rules. 

The Regulation focuses on the spouses' habitual residence, but also allows the spouses to choose the law applicable to the divorce, going much further than previous national rules. 

Without a choice of law, the marriages of German and Italian couples living in Germany will be divorced according to German law.

The law applicable to marriages in Italy is a difficult and complex matter. The main features are: Italian law recognizes marriages contracted before a civil registrar, concordat marriages contracted by a Catholic clergyman, and Catholic marriages, with their respective requirements, such as the age of majority of the bride and groom (exceptions possible), a procedure for the promissory note, etc., and the subsequent civil law effects.

In terms of civil effects, German law only recognizes marriages that are solemnized before a registrar in the presence of the bride and groom.

If German or Italian law applies, there are significant differences in the length of the separation period before a divorce is granted. 

For example, if Italian law applies, you must first ask the court for permission to separate and then file for divorce. The Italian divorce therefore has two stages: first the separation proceedings, then the divorce proceedings. Both are legal proceedings.

Separation is effected by a court decree or, in the case of separation by mutual consent, by a court certificate. Previously, a separation period of three years had to be observed, calculated from the first court hearing on the separation, before the marriage could be divorced in the second stage, but the law of 16.06.2015 has shortened the separation period: Under the current law, divorce can be requested after 12 months if the spouses do not agree on divorce; if they do agree, the statutory minimum separation period is reduced to six months.

Under German law, however, the de facto separation of the spouses for at least one year and a statement of the breakdown with a negative prognosis for the future are sufficient to file for divorce. 

However, under Italian law, a spouse is excluded from inheriting from the other spouse as soon as the divorce decree becomes final.

One parent may legitimately feel free to move to another state with their children, especially if they are the primary caregiver. For this move to be legal, the other parent's consent or approval of the move by the court or other authority is required. It is also possible that applicable laws may require the other parent's consent to move to a more distant location, but within the same country.

It is not uncommon for a divorcing spouse to unexpectedly move to his or her country of origin with the children without the consent of his or her spouse or a family court order. 

In these cases, it is a case of child abduction, with the consequence that the children must be returned to their place of residence before the abduction, with the help of the central authorities (in Germany in Bonn, in Italy in Rome) and the courts and law enforcement officials, regardless of an urgent decision issued in the meantime by a family court that does not have local jurisdiction in the place where the children were taken. Furthermore, with regard to custody, it should be noted that Italian law also considers joint custody to be the rule. Italian courts take visitation rights very seriously and support the children's right to both parents.

Therefore, even if the law grants sole custody of the children to one parent, the other parent may have the right to veto the move. If there are several holders of parental responsibility, such as a legal guardian, they must also consent to the transfer abroad. In the absence of consent, a special application must be made to the court or other competent authority to obtain permission for the transfer abroad.

The Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction defines as wrongful any removal or non-return of a minor under the age of 16 from his or her habitual residence if that decision violates the custody rights of either parent.

The Convention establishes procedures to ensure the prompt return of the child to his or her country of habitual residence and to protect the visiting rights of the parent from whom the child has been removed. The courts of the country to which the child is removed or retained must order the child's immediate return to the country of habitual residence. Only in exceptional cases does the Convention allow for exceptions.

In order to avoid conflicting decisions on custody, the Convention provides that no decision on custody shall be taken in the country of residence throughout the return proceedings. Only after the children have returned do the courts of the country of habitual residence decide on the division of parental responsibility and the child's place of residence.

The matrimonial property law in Italy recognizes the community of property ("comunione legale") as the legal matrimonial property regime, Art. 159, 177 Codice Civile, according to which only property acquired during the marriage is subject to joint ownership by the spouses. The property regime of the "comunione legale" ends, for example, in the event of separation and divorce, where assets and liabilities are divided equally, which in practice can lead to years of litigation until the divorce is granted. However, as in Germany, prenuptial agreements are also possible in Italy, in particular the separation of property which is often chosen in Italy. 

When a marriage is contracted in Italy, the civil registrar asks at the ceremony whether the couple wishes to separate their assets; the decision is made by checking a box on a form, without any explanation of the sometimes far-reaching consequences. According to the so-called Mauritius decision of the BGH, this decision is binding and has the effect of a marriage contract. 

Since Italian law does not recognize the German community of accrued gains as a matrimonial property regime, when German spouses purchase real estate in Italy, the Italian notary often incorrectly notarizes the purchase "in community of property", which raises a number of problems in the event of a later divorce and sale of the property. In this case, the spouses should insist that the purchase be notarized "in separate property", as the community of accrued gains under German law is legally closer to the separation of property than to the Italian community of property.

As in Italy, German law recognizes a statutory matrimonial property regime, the community of accrued gains, § 1363 BGB, whereby the assets of the husband and wife do not become joint assets. Gain is understood as the amount by which the final assets of a spouse exceed their initial assets, Art. 1373 Codice Civile, and in case of divorce only this amount is equalized/divided. Of course, German law also recognizes the possibility of deviating regulations within the framework of marriage contracts. For example, German law provides for purely financial compensation, whereas Italian community property law opens up claims for real division in the event of its dissolution by divorce, which complicates matters considerably.  

If a marriage is to be divorced according to German substantive law, the provisions of Art. Codice Civile must be observed. It is important to note that a marriage can only be divorced by a judgment and only if it has broken down. The breakdown of a marriage is presumed when the spouses have lived separately for one year and both parties file for divorce or consent to divorce, although it should be noted that living separately in the marital home is also possible.

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