What is a Biotestamento (Living Will)?

A living will, biotestamento, allows a person to make decisions about medical treatment

Italian living will biotestamento

Biotestamento legislation in Italy is in two parts.

The first, more general part, deals with giving informed consent on medical treatments. The second part of the law specifically provides for a number of DATs (disposizioni anticipate di trattamento).

What are biotestamento DATs?

DATs allow a person to indicate wishes in relation to medical treatments in the event s/he is no longer conscious due to an accident or illness.

Every adult over the age of 18 years old, of sound mind, who does not expect to be capable of self-determination in the future, may make use of DATs. By filling in the relevant paperwork, a person expresses his/her wishes relating to medical treatments. These include consent or refusal of artificial hydration and feeding.

DATs are legally binding on medical staff unless they are manifestly inappropriate or non-compliant with the patient’s current medical condition or new therapies have become available since the person signed DATs.

DATs must be in the form of a notarised deed or as a certified private instrument.

Informed consent

The law on Biotestamento protects a person’s right to life, health, dignity and self-determination. It stipulates that no medical treatment may start or continue without the patient’s freely given and informed consent. All patients have the right to know their health conditions. Furthermore, they must receive exhaustive, up to date and comprehensible information about the diagnosis, prognosis, benefits and risks of diagnostic tests and of prescribed medical treatments. In addition patients have a right to understand any alternative treatments available and the consequences connected with refusal of treatment.

Possible interruption of artificial feeding and hydration

Every adult, over the age of 18 years old, of mind, has the right to fully or partially refuse any treatment or to revoke consent for treatment at any time. Feeding and hydration are comparable to medical treatments. It is therefore possible to refuse them or request that they stop.

Refusal of treatment and conscientious objection by doctors

The patient has the right to refuse medical care. Doctors can however conscientiously object to this. Therefore, if a patient refuses medical care and a doctor deems this will cause death, a doctor is under no professional obligation to fulfil the patient’s wishes. The patient, however, may turn to another doctor working in the same hospital or healthcare facility.

Futile medical care and deep sedation

A doctor must endeavour to alleviate a patient’s suffering. Even if the patient has refused to grant or withdrawn his/her consent to medical care. Where there is a short life expectancy or imminent death prognosis, the doctor must, however, abstain from unreasonably persisting in dispensing medical care. In case of illnesses resistant to medical treatments, with the patient’s consent, the doctor may resort to continuous deep palliative sedation associated with pain therapy.

Psychological support

Should the patient decide to revoke or refuse medical care, the doctor must inform the patient of the consequences associated with this decision. The doctor must also inform the patient about any possible alternative treatments. In addition, medical staff should promote all actions to support the patient, including psychological support services.

Minors and disabled persons

In order that they can express their wishes, minors and disabled persons must receive all information in an appropriate manner. Informed consent on medical treatments for minors is contingent on consent or refusal by the parents or legal guardian. However, the patient’s wishes must also be considered.

Fiduciaries

A patient may also appoint someone to represent them in all relations with doctors and medical facilities.

Finally …

At De Tullio Law Firm, we have over 55 years of expertise with managing cross border succession and estate planning matters throughout Italy. In addition, our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

If you need any advice regarding living wills or last wills, we are here to help. Please get in touch with us.

 

 

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.

 

Elective Residence In Italy. Frequently Asked Questions

What is a national visa for elective residence?A Guide to Italian Elective Residence Visa

Elective residence in Italy requires a national visa. This grants access to Italy for overseas nationals wishing to reside in Italy. Applicants must be able to support themselves financially, without carrying out any type of work.

Article 13 of Attachment A of the inter-ministerial Decree MAE n°850 defines the types of Italian entry visas and requirements to obtain them.

What paperwork is necessary to obtain an elective residence visa?

Foreigners wishing to obtain an elective residence visa will have to provide documentary proof that they own or rent a property in Italy. This will be where you  will be living. In addition, proof of adequate financial resources is necessary.

Successful applicants for an elective residence visa should have annual funds of at least €31,000. This equates to approximately triple the required per diem amount, on an annual basis, as estimated in Chart A. This chart is an attachment to the Ministry of Internal Affairs directive of March 1st 2000.

Annual income may derive from savings, pensions, annuities, real estate, businesses or from other sources. However, it cannot be from employment.

Who is entitled to an elective residence visa in addition to the applicant?

A cohabiting spouse or registered partner, minors and adult dependent children will receive the same visa, so long as financial means are adequate to support them. This means your total amount of annual income should include an extra 20%, if the visa is for a spouse whereas an additional 5% is necessary for each dependent child.

What level of annual finances do you need to gain elective residence in Italy?

The “minimum financial requirement” in accordance with Italian legislation is approximately €31,000 per annum. However, it is likely that authorities will assess the situation on a case by case basis.

How long is an elective residence visa valid and, can it be renewed?

An elective residence visa is valid for 1 year. Thereafter, the visa is renewable at provincial police headquarters on the condition that the previously mentioned original requirements remain unchanged.

You must apply for an elective residence visa at an Italian Consulate in your home country and convert it into a residence permit within 8 days of your arrival in Italy – as is the case for all other types of extended stay national visas.

It is not possible to renew or reinstate a residence permit if you interrupt your stay in Italy for a span longer than six months, unless you can prove that the interruption was for significant motives such as military duties.

Is any type of employment permitted with an elective residence visa?

No. This type of visa does not permit any employment activity in Italy. You must therefore be able to support yourself on an income that derives from other sources.

Is there any other type of visa for a long-term stay in Italy?

After 5 years of residence in Italy, you can request a permanent EU residence permit. This means that a holder will be able to benefit from the same terms as those of EU citizens.

Finally …

We have over 55 years of helping overseas nationals obtain Italian residence. If you need help or would like to discuss your situation, please get in touch with us.

You may also find our guide to buying property in Italy useful.

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

 

European Certificate of Succession

What is Brussels IV?EU Succession Regulation: European Certificate of Succession

Since August 2015, a major step to facilitate cross-border successions has been the adoption of EU Regulations which make it easier for people to handle the legal aspects of an international succession. Regulation (EU) No 650/2012, also known as, “Brussels IV”Amongst other things, Brussels IV introduces a European Certificate of Succession (ECS).

Heirs, legatees, executors of Wills and administrators of the estate can use an ECS to prove their status and exercise their rights or powers in other EU Member States.

Each EU Member State has nominated relevant authorities to issue ECS. It is valid in all EU Member States without the need for any additional procedures. The ECS is also valid in the issuing country.

How can you request a European Certificate of Succession in Italy?

To qualify for an ECS in Italy, the deceased must have been habitually resident in Italy or had Italian citizenship at the time of death.

in Italy, heirs, legatees, executors of Wills and administrators of the estate can obtain a European Certificate of Succession from an Italian notary public. Regardless of where the deceased’s assets are in Italy, you can request an ECS from any Italian notary public.

A European Certificate of Succession for Cross border inheritance

One of the key concepts of Brussels IV is that one law should apply to the entire estate administration, no matter where assets are located.

This means, for example, that if Italian law applies to an inheritance including assets held in Italy and France, Italian inheritance law would override French inheritance law. The French authorities could use an ECS to communicate what they have established. This would then allow the Italian authorities to deal with the administration of assets.

What happens if the deceased was habitually resident in a non-EU country? For instance, if the deceased lived in the UK but had assets in Italy? In this case, an Italian notary may ask you to provide an ECS from the UK. Because non-EU countries are not party to Brussels IV, this is not however an option. That said, there are acceptable alternatives. In this particular example, the preferred option would be a certificate of English law. You should ask a lawyer familiar with cross border estate administration to draft and sign the certificate.

Finally …

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

Please contact us if you have any cross border inheritance questions or if would like to discuss your situation.

 

You may also be interested in Do beneficiaries have to pay taxes on inheritance?

European Mortgage Credit Directive

EU Law: European Mortgage Credit Directive In a previous article, we addressed the possibility of non-Italian nationals obtaining a mortgage to purchase an Italian property. 

This article explores some of the provisions contained in the European Mortgage Credit Directive (EMCD), which came in to force across all EU Member States in 2016, impacting the Italian mortgage and credit market.

During the global financial crisis of 2008, the EU launched a process to draw up prudential measures aimed at containing risk in real estate credit agreements. Although the majority of sub-prime mortgage problems occurred outside the EU, consumers within the EU hold significant levels of debt related to residential immovable property.

The process resulted in the introduction of the EMCD, the purpose of which is to create a single, harmonised residential mortgage credit market across the EU with a high level of consumer protection.

Italy’s Council of Ministers in Legislative Decree no. 72 on 21st April, 2016 approved the EMCD, (2014/17/EU) known as Direttiva Mutui in Italian. The Directive then became a national law on 20th May, 2016 and has been in force since 4th June, 2016. In Italy, Bankitalia, ensures enforcement and application of the EMCD in Italy.

The EMCD applies to credit agreements entered into with consumers that are secured by a mortgage, or equivalent security, on residential immovable property. It is also applicable to credit agreements designated as an acquisition or a retention of property rights on buildings or land. The definition of consumer is, ‘a natural person acting outside their trade, business or profession’.

The EMCD impacts EU and non-EU residents alike

The EMCD affects anyone who, for example is considering taking out a Euro mortgage to buy property in Italy but, whose main income is derived in another currency such as, Pounds Sterling or Dollars. 

Due to the significant risks attached to borrowing in a foreign currency it is essential to provide measures to ensure that consumers are aware of the risk they are taking. If a credit agreement relates to a foreign currency loan, EU Member States must ensure that the consumer has the right to convert the credit agreement into an alternative currency under specified conditions. Additionally, EU Member States must ensure that there are other arrangements in place to limit the exchange rate risk to the consumer.

In a situation like this, we would recommend consumers obtain independent legal advice to ensure they receive fair treatment and protection.

The following are the main provisions of the EMCD:

  • Information must be provided to consumers at the pre-contractual stage. In Italy lenders provide pre-contractual information in a prescribed form, the European Standardised Information Sheet (ESIS), or Prospetto informativo europeo standardizzato (PIES)” in Italian, to assist consumers in comparing lenders and their products. Additional information is attached to the PIES including the identity, status, capacity and remuneration of any credit intermediary involved in the application.
  • Lenders must conduct a rigorous assessment of the proposed borrower’s creditworthiness prior to granting credit. This includes an assessment of the borrower’s income, expenses, financial and economic circumstances. In accordance with Central Individual Credit Register (CICR) regulations, Italy grants cross-border access to its creditworthiness databases. Lenders of EU Member States use these databases to assess a consumer’s ability to comply with the financial obligations for the duration of a credit agreement.
  • Lenders and their intermediaries must adhere to a code of conduct; act honestly, fairly, transparently and professionally, taking in to account the rights and interest of consumers. Bankitalia has the obligation to ensure that Italian lenders and their intermediaries possess and maintain an appropriate level of knowledge and competence regarding their credit agreement offerings.
  • Once authorised in italy, a credit intermediary has passporting rights to operate in any EU Member State.
  • EU Member States must adopt measures to encourage creditors to exercise reasonable forbearance before the initiation of arrears and foreclosure proceedings. The aim is to encourage creditors to deal proactively with emerging credit risk; in effect to ensure that creditors have adequate measures in place so that they can exercise reasonable forbearance and make reasonable attempts to resolve the situation through other means before the initiation of foreclosure proceedings. In Italy, legislation prohibits foreclosure on a main residence subject to the condition that this home is the only immovable property the debtor owns and it must not be classed as a luxury home, such as a castle or villa.

The EMCD provides EU Member States discretion as to whether and how to apply certain of its provisions

In Italy, prior to the conclusion of a credit agreement, the consumer has the right to a cooling-off period of at least seven days to allow for comparison of different loan offers on the market, evaluation of the implications and making an informed decision. During this period of reflection and comparison, the offer remains binding on the lender and the consumer may accept the offer at any time.

While the EMCD permits consumers to repay their loan before the term expires, EU Member States may impose restrictions on rights to early repayment. Creditors may charge for early repayment to cover any losses directly arising from the repayment. In Italy, however,  in accordance with Bersani’s Decree, Law No. 40, 2nd April, 2007, no penalty clauses or compensation for early repayment may be charged to a consumer.

Finally …

De Tullio Law Firm specialises in Italian and international property law. If you need advice or help with matters related to a mortgage for Italian real estate property, please contact us for a free consultation.

 

You may also be interested in How to get a mortgage in Italy

Italian Tax Law: High Net Worth Individual Tax Regime

What is Italy’s high net worth individual tax regime? 

What is Italy’s high net worth individual tax regime?  On 9th March, 2017, Italy introduced a high net worth individual tax system. On 9th March, 2017, Italy introduced a high net worth individual tax system. 

Pursuant to article 24 bis of Italy’s Budget Bill, a codicil introduced an annual fixed €100 thousand forfeiture substitutive tax rate for foreigners, including EU citizens, who decide to move their residence to Italy irrespective of the level of an individual’s income. 

Individuals with tax residency in Italy will be taxed on a worldwide basis, i.e., on their income wherever it is generated. No exceptions to this general rule are permitted. However, tax will not be due on the value of real estate and financial investments located abroad.

Individuals need to apply for the high net worth individual tax regime

According to the bill, benefitting from the high net worth fixed tax rate is neither an automatic right nor an obligation – it is a choice.

Individuals electing to take advantage of the fixed tax rate option, will have to file an advance application with the Italian tax authorities, the Agenzia delle Entrate, which decides whether or not to grant the forfeiture substitutive tax rate to individuals. Decisions will be based on investigations with tax authorities in the individual’s country of origin and checks that the individual has not previously been tax resident in Italy.

The option can be extended to the individual’s family members provided they also meet the conditions of tax residency in Italy and previous no previous Italian tax residency. In this case, each family member included in the option will also be subject to a yearly forfeiture substitutive tax on non-Italian sourced income but, at a lower fixed amount of 25,000 Euros.

If the Agenzia delle Entrate accepts an individual’s application, the option expires after 15 years. It is revocable at any time but, if revoked, it cannot be restored.

After the 15 year residence period, the fixed tax rate will no longer be applicable. The individual will thereafter need to decide whether to continue to be a resident of Italy. Should an individual continue to live in Italy as a resident, standard tax rates will apply.

Italian Visa for investors

The Budget Bill also introduces a “visa for investors”. This means that any foreign national bringing a capital of at least €1 billion into Italy, and investing it within three months of arrival, will automatically be entitled to a two-year residence permit.

Finally …

Should you need help to understand your personal tax situation, please Get in touch or seek advice from a qualified accountant registered with the ODCEC, the Italian professional accounting association of certified public accountants, auditors and advisors.

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.

Cross-Border Inheritance Law (Brussel IV)

Cross-Border Inheritance Law. How Does New EU Succession Legislation Impact You?

This article looks at the new EU Law 650/2012, also known as the Brussels IV Regulation, which came in to effect on 17th August 2015.

Although the UK, Denmark and Ireland have opted out of participating in Brussels IV, there are still implications for nationals of these countries who reside in a participating EU Member State or have a connection to a participating EU Member State, for example a holiday home.

Cross-Border Inheritance LawPrior to the introduction of Brussels IV, each EU jurisdiction applied its own rules to govern the devolution of individuals’ property. For individuals with assets in more than one country, various Connecting Factors were considered such as domicile, residence, nationality or habitual residence, in order to determine which country laws should apply to an individual’s estate. In addition, for some EU states, applicable succession law depended upon whether the assets were immovable (property and land) or movable (bank accounts, vehicles, furniture, jewellery and so on). The fact that each jurisdiction applied different Connecting Factors often led to costly, lengthy and complex conflicts of laws. Read more

Brexit Jitters?

brexitAbout 26,000 British nationals are registered in Italy, according to Italy’s National Institute of Statistics. The British embassy in Rome believes the true number of British residents in Italy is double that.

A significant fear for those concerned about Britain leaving the EU is the potential mass exodus of both Europeans and Britons from each other’s respective nations. In 2015, former Attorney General, Dominic Grieve claimed that: “… EU exit would make 2 million Britons abroad illegal immigrants overnight.” Read more