EU Property Regime Rules. Marriages & Partnerships

Cross Border Property Rules for Marriages & Registered PartnershipsEU property regime rules for cross border marriages and registered partnerships

According to the European Commission, there are about 16 million couples in the EU living in a “cross border situation”. These international couples are citizens and/or, own properties in different EU Member States. Until 2019, no EU property regime rules existed for cross border marriages and registered partnerships.

On 23rd June 2016, Members of the European Parliament approved two regulations. These regulations determine homogeneous rules applicable to property regimes in cross border situations. Council Regulation (EU) 2016/1103 determines rules for married couples. Council Regulation (EU) 2016/1104) determines rules for civil partnerships. These two regulations entered into force on January 29th, 2019.

The rules determine jurisdiction and applicable law for matrimonial and registered partnership property regimes in case of divorce, separation or the death of one of the spouses or partners.

The objective of the regulations is to increase foreseeability and legal certainty regarding jurisdiction and applicable law in the matter of property regimes of international couples. In addition, the regulations harmonise international private law rules between EU countries.

EU property regime rules determine the applicable law in the event of divorce or death

EU Regulations bring broader legal certainty and end parallel and/or conflicting proceedings in the various EU Member States.

The regulations do not affect the underlying institutions of marriage and civil partnerships. These remain matters defined by the national laws of the EU Member States.

Regulations explicitly regulate two cases of jurisdictional governance. These are the death of one of the spouses or registered partners, and divorce.

In the case of death, the court in a competent Member State, pursuant to EU Succession Regulations, will have jurisdiction in matters arising from the couple’s property.

In the case of divorce, the court called upon to rule on an application of divorce will have jurisdiction, provided the couple agrees. Couples may also reach an agreement regarding jurisdiction during court proceedings.

In cases other than the above mentioned, and in cases where spouses fail to reach agreement, jurisdiction lies with the courts of the Member State where couples are habitually resident. Failing that, jurisdiction lies with Member State where couples were last habitually resident, insofar as one of the spouses or partners is still considered resident there. Otherwise, jurisdiction lies with the courts of the Member State of the respondent’s habitual residence and failing that, the state of the couple’s common nationality at the time of court proceedings. The parties may also agree to give jurisdiction to a Member State whose law is applicable to the matter. Should the respondent take the matter to court, that court will have jurisdiction. This would be irrespective of which court has jurisdiction according to the aforementioned rules.

Choice of law rules is applicable to marriages and registered civil partnerships

The regulations allow spouses and registered partners to choose which country law shall apply in the event of divorce or death. Marriages and partnerships registered prior to 29th January 2019 are subject to national choice of law regulations.

The regulations are applicable in 18 EU Member States that joined the enhanced cooperation initiative on this matter, namely: Belgium, Cyprus, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, Czech Republic, the Netherlands, Austria, Bulgaria, Sweden and Finland.

The EU members that did not adopt the Regulation are The Republic of Ireland and Denmark. These countries continue to use the choice of law rules of their national laws.

Regulations pertaining to applicable law are universal in scope. Thus, the law of any state, including states that are not members of the EU, may be found to be applicable. The law provided by the regulations is applicable to all assets, irrespective of  location.

Finally …

Divorce or death of a spouse or registered partner is hugely emotional wherever you live. Having to work through matters related to inheritance and asset separation can add to the pain. The complications multiply when couples live or own properties in different countries. We understand the legal complexities that international couples can face in Italy. If you need advice, we are here to help.

 

You may also be interested in Review of EU and Italian Divorce Law

 

Review of EU and Italian Divorce Law

Living in a cross-cultural relationship?

Review of EU and Italian Divorce LawWe often receive questions about Italian Divorce Law at our law firm. Many people nowadays are part of a cross-cultural relationship and, for the most part it is an enriching and beautiful experience. However, it can also be difficult to manage if the relationship flounders.

When it comes to separation and divorce, it is wise to speak to experts, both for emotional and legal support. Regrettably, international separations and divorces are becoming more common.

Obviously, people don’t enter in to married life thinking about where the best location for a divorce would be. However, where couples choose to divorce can have a major impact on parties’ financial health, children and many other matters. Therefore getting it right is very important. Delays in decision-making can result in devastating outcomes.

Changes to Italian divorce law

In May, 2015 Italy introduced the so-called, ‘quickie divorce’ law. This cut the amount of time it takes to get a divorce from three years to as little as six months in uncontested cases and a year in contested cases.

While the new law still retains a two-step process – separation and divorce – there are three important changes.

  1. Separazione consensuale – consensual separation. This is where both partners request a separation. The period of legal separation is now six months. Following the six-month separation, which begins once the couple has applied for separation in court, the couple may file for divorce.
  2. Separazione giudiziale – judicial separation. This is where one partner requests a divorce. It could also apply if the couple contest issues such as child custody, division of assets (including property) or alimony arrangements. Parties have to wait 12 months to file for divorce following a court application for separation. If the procedure of separation is still pending following the 12-month period, perhaps for example because parties cannot agree on financial and other aspects of the separation, each party will be entitled to file for divorce. In this case, the judge appointed to rule on the judicial separation will merge and handle the processes for separation and divorce.
  3. The new law is applicable to separation cases that are currently pending. This means those who have already filed for separation benefit from shorter divorce procedure times.

EU divorce law

The EU Divorce Law Pact or, Rome III Regulation. This aims to implement enhanced cooperation in the area of applicable law for divorce and legal separation.  Essentially, EU divorce law allows expat couples in Italy to choose either the divorce laws of Italy, or those of the country where the couple previously lived or the country of their nationality. This also applies to and mixed marriage couples, where one partner is Italian and the other is not. The decision regarding applicable country law needs to be made before divorce proceedings begin.

15 countries including Italy adopted the Rome III Regulation. Italian law and courts govern divorce procedures if a couple does not stipulate an applicable country law and are ordinarily resident in Italy. This would also apply where one partner is resident in Italy and starts proceedings here. However, one of the partners can return to their home country for six months or more and start proceedings there before Italian proceedings begin.

Matrimonial property regimes

Another aspect to consider in the choice of divorce law is matrimonial regimes. For example, English courts often split a couple’s assets 50/50. Italian courts look more closely at what belongs to whom. This is because when they get married, couples in Italy may choose between a matrimonial regime of shared ownership, comunione dei beni or separate ownership separazione dei beni of their worldly goods in the event of divorce or death.

Unless otherwise stipulated in an agreement, at the start of a marriage or at any time during a marriage, comunione dei beni is the default matrimonial regime. Italian law considers expat couples married elsewhere but resident in Italy married according to this regime. The comunione dei beni regime regards property acquired by the couple during their marriage to be jointly owned. Regardless of whether couples purchased assets individually or together if the couple divorces, assets will be split 50/50.

In 2019, two new EU regulations entered into force. These regulations determine homogeneous rules applicable to property regimes in cross border situations. In effect, these regulations determine jurisdiction and applicable law for matrimonial and registered partnership property regimes. In case of divorce, separation or the death of one of the spouses or partners, the regulations also need consideration.

Exceptions

There are however exceptions. For example, if a partner purchased property prior to the marriage this would belong solely to the partner in the event of a divorce. Likewise if a partner acquires property after the marriage as a gift or an inheritance. The choice of matrimonial regimes can therefore have an important impact on choice of applicable law in the event of separation and divorce.

Consider the case of an English couple who married in London 12 years ago. The wife inherited a significant sum of money as well as a house in Italy from her parents. Four years ago, the husband persuaded the wife that they should move to Italy to live in the property she had inherited. Then, 12 months later, the husband moved back to the UK and filed for divorce. The English court gave the husband 50% of all the couples’ assets. The Italian courts would have treated the inherited assets as belonging solely to the wife.

Finally …

Each case is different. We recognise that so many issues need consideration and decisions need to be made at what is a very stressful time. Which applicable law to choose requires careful consideration. An experienced lawyer familiar with cross-border divorce law and the complexities which make these divorces so difficult will be able to guide you. If you need assistance, please don’t hesitate to contact us. We are here to help.

 

Married Couples And Registered Partners in Italy

Economic Relationships: Married Couples And Registered Partners Resident in ItalyRegime patrimoniale coniugale

This article deals with the issue of the choice of law ruling the economic relationship between foreign married couples and registered partners in Italy.

Italian law no. 218 of 1995 contains an amendment reforming international private law determining applicable law to matrimonial regimes in Italy.

Regarding the economic relationship between married couples, if they have the same nationality, the national law of the two partners is applicable.

Where spouses have two different nationalities, the law of the State where the marriage took place is applicable.

In Italy, couples may choose between two matrimonial regimes: regime of community of assets “comunità dei beni” and separation of assets “separazione dei beni”.

Couples can make a notarised agreement when they marry or at a later stage to determine which regime is applicable. However, in the absence of a choice, Italian family law provides that the community of assets regime is the default.

Italian property purchases: foreign married couples and registered partners in Italy

Non-Italian couples may make an agreement when they purchase a property in Italy – should they wish the ownership of the property to be in the name of only one spouse.

Decisions regarding matrimonial regimes can play a key role in the event of divorce or death. They can therefore have important and far-reaching consequences.

Pursuant to article 159 of the Italian Civil Code, in the absence of a notarised agreement between spouses, the default matrimonial regime will be that of community of assets.

Married couples and registered partners. Who owns what in a community of assets?

A community of assets regime means that both partners own certain assets jointly. These include:

– Purchases made ​​by the spouses together or separately during their marriage.

– Businesses opened and managed by both spouses after their marriage.

– Profits generated by a business belonging to either spouse.

Certain items of personal property are not included in the Italian community of assets regime:

– Goods belonging to each spouse prior to their marriage.

– Property acquired during the marriage through a personal gift or inheritance.

– Personal items used by spouses.

– Goods or finances obtained as compensation for damages.

A community of assets regime means a property belongs to a couple in equal parts …

Whereas, if the couple opts for a separation of assets regime, it is possible to register a property in the name of just one spouse or partner.

In order to do this, a couple can choose a separation of assets regime at the time of, or after their marriage. This means foreign nationals married elsewhere, but resident in Italy can decide, at any time during their marriage or registered partnership, to elect to have their economic relationship governed by Italian law.

If foreign married couples resident in Italy decide to regulate their economic affairs according to Italian law, they will have to do it through a written agreement in the form of a public deed in the presence of an Italian public notary.

Finally …

Before purchasing a property in Italy, it is worth considering your economic relationship. Each case depends on personal circumstances.

Buying an Italian property represents a major investment for most people. To ensure you protect your investment, you should therefore always seek independent legal advice. Why not get in touch with us to discuss your situation?

You may also be interested in Cross Border Property rules: Marriages & Partnerships

 

Review of Italian and EU Divorce Law

An introduction to Italian and EU Divorce Law

Many of our clients, friends and family members are part of a cross-cultural relationship and for the most part it is an enriching and beautiful experience but it can also difficult to manage. When it comes to marriage and children it is wise to speak to experts both for emotional support and legal support. Regrettably, international separations and divorces are becoming more common. Italian and EU Divorce Law

Obviously, people don’t enter in to married life thinking about where the best location for a divorce would be. However, where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is very important. Delays in deciding this could result in a disastrous outcome.

Changes to Italian Divorce Law

In May, 2015 Italy introduced the so-called ‘quickie divorce’ law, which cut the amount of time it takes to get a divorce from three years to as little as six months. The new Italian legislation cuts the time it takes to get a divorce to six months in uncontested cases and a year in contested cases.

While the new law still retains a two-step process – separation and divorce – there are three important changes:

  1. In the case of separazione consensuale – consensual separation – requested by both partners, the period of legal separation is now six months. After the six-month separation, which begins once the couple has filed an application for separation in court, the couple may file for divorce.
  2. In the case of separazione giudiziale – judicial separation – only one partner is requesting a divorce, or the couple contest issues such as child custody, division of assets (including property) or alimony arrangements, the parties have to wait 12 months to file for divorce following a court application for separation. If the procedure of separation is still pending following the 12-month period, perhaps for example because parties cannot agree on financial and other aspects of the separation, each party will be entitled to file for divorce. In this case, the processes for separation and divorce will be merged and handled by the judge appointed to rule over the judicial separation.
  3. The new law is applicable to separation cases that are currently pending. So, those who have already filed for separation will benefit from shorter divorce procedure times.

The European Union Divorce Law

The EU Divorce Law Pact or Rome III Regulation aims at implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.  Essentially, this EU divorce law allows expat couples in Italy – and mixed marriage couples, where one partner is Italian and the other not – to choose either the divorce laws of Italy, or the laws of the country where the couple previously lived or the country of their nationality. The decision of which country’s law will apply, needs to be made before divorce proceedings begin.

The Rome III Regulation was adopted by 15 countries including Italy. The UK opted out – so

If a couple does not stipulate an applicable country law, divorce procedures will be governed by Italian courts and legislation if a couple is ordinarily resident in Italy or one partner is resident in Italy and starts proceedings here. However, if the other partner, for example, returns to the UK for six months or more and starts proceedings there before Italian proceedings begin, UK courts and law will govern the divorce.

Another aspect to consider in the choice of divorce law is matrimonial regimes. UK courts often split assets owned by a couple 50/50, whereas Italian courts look more closely at what belongs to whom. This is because when they get married, couples in Italy may choose between a matrimonial regime of shared ownership, comunione dei beni or separate ownership separazione dei beni of their worldly goods in the event of divorce or death.

Unless otherwise stipulated in an agreement, which can be made at the start of a marriage or at any time during a marriage, comunione dei beni is regarded as the default matrimonial regime. Expat couples married elsewhere but resident in Italy are regarded as being married according to this regime. In the comunione dei beni regime, property acquired by the couple during their marriage, whether individually or together, forms part of the couples’ shared ownership. In the event of a divorce, these assets will be split 50/50.

However, there are exceptions. For example, property acquired by a partner prior to the marriage, or property acquired after the marriage as a gift or an inheritance would not be split in the case of a divorce. The choice of matrimonial regimes can therefore have an important impact on choice of applicable law.

Consider the case of an English couple who married in the UK 12 years ago. Since then, the wife has inherited a significant sum of money as well as a house in Italy from her parents. 4 years ago, the husband persuaded the wife that they should move to Italy to live in the wife’s inherited property. Then, after 12 months, the husband moved back to the UK where he issued divorce proceedings. The UK court gave the husband 50% of all the couples’ assets. The Italian courts would have treated the inherited assets as belonging solely to the wife.

Each case is different. There are many issues that need to be taken in to account and at a very stressful time. Which applicable law to choose, requires very careful thought and consideration. An Experienced lawyer will be familiar with cross-border cases, and the complexities which make these divorces so difficult.

Please note, any statement made in this review is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

Contact us today. We can help.

Italian and EU International Divorces

Italian and EU Divorce Law

Across much of the European Union, marriages between couples of different nationalities, are on the rise. In addition, the number of married couples living as expats in another EU country is increasing. Unfortunately, this means that international separations and divorces are becoming more common.

Obviously, people don’t enter into married life thinking about where the best location for a divorce would be; married couples are unlikely to be interested in thinking about this while they remain happy together, and couples may not be able to agree on the appropriate jurisdiction if they are about to be or are already separated. However, where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is crucial. Read more

Italian real estate attorneys and Italian inheritance attorneys