Case Study. Italian Law of Filiation – Legal rights and status of children born out of wedlock.
Cle was recently engaged by an Australian law practice to provide evidence in a civil court case at the Supreme Court of Western Australia concerning legal rights and status of children born out of wedlock.
The case involved a dispute arising from paternity issues related to inheritance rights. As the parties to the case emigrated to Australia from Italy in the 1960s, a clarification of Italian law of Filiation was required to support the case.
The judge fully accepted the written and oral evidence that Cle provided regarding the paternity issue. In this case study, in which names and circumstances have been changed, we aim to outline the main aspects of the Italian law of filiation that The Supreme Court of Western Australia took into consideration when assessing whether or not Maria could be considered a legitimate child and was therefore entitled to claim a share of Mr Rossi’s inheritance.
- The plaintiff, Maria Rossi issued proceedings in the Supreme Court of Western Australia regarding the inheritance distribution of her father’s estate, who following the divorce from Maria’s mother, married another woman and had other children.
- When Maria was born in 1950, her father and her mother were not married. They got married a couple of years after Maria’s birth.
- When Maria was born, under Italian law it was forbidden for fathers to recognize any children born out of wedlock, thus Maria was registered with her mother’s name (Bianchi).
- In Maria’s birth certificate there is a note indicating that Maria, whose original family name was “Bianchi” was born on 10 February 1950 and was “legitimated” as a daughter of Mr Giuseppe Rossi, following the marriage of Mr Giuseppe Rossi and Ms Giovanna Bianchi which was celebrated in 1953.
The defendants in this case were the children from Mr Giuseppe Rossi’s second marriage – Maria’s half siblings. They questioned whether Maria could be considered a legal heir and beneficiary of Mr Rossi due to the fact that when she was born, in Italy, Maria was an “illegitimate” child and that the marriage between Mr Rossi and Ms Bianchi following Maria’s birth did not automatically confer on Maria the status of a legitimate child.
The legal effect (status) in Italy of a person born “illegitimately”.
Italian legislation on filiation has abolished the distinction between legitimate children and children born out of wedlock. The law has been subject to important reforms driven by constitutional law, with the aim of guaranteeing equality between children. The endpoint of this legislative process has been to stipulate one single status for all children. There is no longer any distinction between children born “legitimately” (i.e., born to parents married to each other) and children born “illegitimately” (i.e., born to parents not married to each other).
In particular, in the Italian legal system, Law no. 219 of 10 December 2012 (filiation law reform, Riforma della filiazione), modified the Italian Civil Code, “illegitimate children”, (already called “natural children”, following reforms in 1975 to Italian Family Law), suffer no discrimination for the circumstance of their birth.
Both legitimate and natural children therefore have the same status: child (figlio), without any additional distinction. All children have the same rights and parents have a responsibility toward their offspring. A child has the right to be maintained, to be educated, to receive a share of inheritance, and to receive assistance in case of need.
In other words, in the Italian Civil Code as well as in any other Italian legislation referring to the relationships between parent and son/daughter, only the word “child” (figlio/figlia) is used – without any other distinction or specification (e.g., il/legitimate, natural, adopted).
The provision for a uniform status of filiation therefore means that all children have the same rights and parents have the same responsibility towards their children. These responsibilities towards children also extend to their parents’ relatives (this is the express intention of the declaration contained within Law 219 of 2012).
As mentioned above, the Filiation Reform (Law 201/2012) modified the Italian Civil Code and is applicable to all people, not only those born after a certain date. That is to say that the abolition of the distinction between legitimate and natural/illegitimate children is retroactive, i.e. it is applicable to parent-son relationships extant prior to the Law 219/2012 entered in to force (1st January 2013).
One of the biggest effects of the abolition of the distinction between natural children and legitimate children is that natural children have the right to succeed to their parents in the same position as “legitimate” children (i.e., they are entitled not only to the succession of their “natural” parent, but also to the succession of other relatives of their parents, as opposed to what happened with the distinction between natural children and legitimate children).
At the time Maria was born (1950), family law was different and there was a huge discrepancy between the status of legitimate and illegitimate children. Illegitimate children could not access any inheritance rights or make maintenance claims toward the parent that had had them out of wedlock. In fact, illegitimate children at that time did not have the status of child (figlio). Therefore they did not have any of the rights related to the status of child, unless legitimated after their birth.
At that time, the only way to legitimate a son/daughter born out of wedlock and give him/her the status of child (figlio), and as such, status of child with all the rights of a child, was for (i) the parents to marry each other after the birth of the illegitimate son/daughter, and (ii) for the father to make a formal statement in front of a public officer, declaring that he was the father of the child born prior to the marriage.
As mentioned above, this distinction no longer exists in the Italian Legal System as per Law 219/2012.
The legal effect in Italy of the phrase “legittimato quale figlio” in Maria’s birth certificate.
The meaning of the phrase “legittimata quale figlia” mentioned in the Birth Certificate of Maria, means that an individual after a certain event (marriage of his/her natural parents) acquires the status of child. In other words, the individual passes from a condition where he/she was illegitimate to a condition where he/she has the status (the qualities) of a legitimate child with all the accompanying rights of being a child (figlio).
The phrase “legittimata quale figlia” means that Maria, born out of wedlock, acquired the status of a legitimate child (and therefore was “legitimated as a child”) through the marriage of her parents. Through this legitimation, Maria acquired all the rights of a children born during the marriage.
This effect was provided by the applicable law (civil code) at that time. No need to provide precedent court decisions confirming rulings in previous court decisions regarding the meaning of “legittimata quale figlia” since it was not a matter of argument in its clear Italian meaning in the Civil Code, bearing in mind that the Italian Legal system is a Civil Law system (as opposed to a Common Law system).
Also, as mentioned above, as a consequence of reforms to the Italian Law of Filiation Law, there is no longer any distinction in Italy between children born during or out of the marriage. The legal abolition of such a distinction is an express statement of a Law of the Italian State. Italian Court decisions have to unconditionally apply and adhere to this principle.
As per the Italian Law, Maria Rossi does have the status of a legitimate child of Mr Giuseppe Rossi, both under current applicable Italian law, as well as under legislation applicable at the time of Mr Giuseppe Rossi’s marriage to Ms Giovanna Bianchi.
The event of a marriage between her natural parents gave Maria the status of child and legitimated her as a child of Giuseppe Rossi and Giovanna Bianchi as a consequential effect provided by legislation in force since February 1955.
The Italian Family Law reform of 2012 abolished any distinction between legitimate children and natural/illegitimate children.
The Supreme Court of Western Australia judged that Maria was the late Mr Rossi’s legitimate child and, as such, was entitled to receive a portion of his estate.
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