Trusts in Italy: A Short Guide

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Understanding Trusts in Italy: A Legal Mechanism for Asset Management

A trust is a legal institution designed to separate certain assets from an individual’s personal holdings. This separation allows these assets to be entrusted to a trustee for a specific purpose, often in the interest of a beneficiary or to achieve a particular goal. Originating in Anglo-Saxon legal systems, trusts in Italy have significant differences compared to other legal frameworks. However, they gained recognition in Italy on January 1, 1992, with the ratification of the “Convention on the Law Applicable to Trusts and their Recognition,” adopted in The Hague on July 1, 1985 (law of October 16, 1989, no. 364).

Components of Trusts in Italy: Roles and Responsibilities

In a trust arrangement, three primary entities play crucial roles: the “settlor,” the “trustee,” and the “beneficiary.”

Settlor:

The settlor initiates the trust through a unilateral act, establishing its terms and conditions.

Trustee:

Often referred to as the “trustee,” this individual or entity receives the assets, assumes ownership, and manages them in the best interest of the beneficiaries.

Beneficiary:

The settlor designates the beneficiary who receives benefits from the trust’s assets as “income beneficiaries,” or ultimately inherits the assets as “capital beneficiaries” or “ultimate beneficiaries.”

The settlor or a third party names beneficiaries in the initial trust document or identifies them later. A settlor may specify a beneficiary by name or as belonging to a particular category. In some cases, settlors establish trusts without specific beneficiaries, known as “purpose trusts”. Settlors create these trusts to achieve specific charitable objectives.

Furthermore, a “protector” commonly oversees the trustee’s actions. The trust deed may require the protector to authorize certain trustee actions.

Safeguarding Assets: The Protective Role of Italian Trusts

In a trust arrangement, the segregation of assets shields them from potential creditor claims against the settlor, beneficiary, or trustee. By design, these assets become distinct from personal holdings, safeguarding them from individual financial liabilities. Only creditors specifically related to the trust can make claims against these assets.

Asset Protection and Trust Validity:

It’s crucial to understand that asset segregation is a consequence, not the primary purpose, of establishing a trust.

A valid trust must serve a recognized purpose deemed worthy of legal protection. Establishing a trust solely for asset protection reasons, without a legitimate purpose, does not meet the requirements for validity in the Italian legal system.

Trusts in Italy: Evolution of Legal Recognition

In recent years, Italy has witnessed various attempts to establish trusts solely for the purpose of shielding assets from creditors or gaining undue tax advantages. However, such trusts faced legal challenges, with numerous court rulings, including those from the Italian Supreme Court, declaring these trusts null and void or ineffective against creditors and tax authorities.

Consequently, a sense of skepticism toward trusts emerged within the Italian legal framework, viewing them as tools for evading debts or taxes.

The landscape shifted on January 1, 2017, with the enactment of Law no. 112 of June 22, 2016. This legislation expressly validated asset separation within trusts, marking a pivotal moment in the legal recognition of trusts in Italy.

Beyond its primary objective of enhancing assistance, care, and protection for individuals with severe disabilities, this law actively encourages trust establishment. Its explicit endorsement of trusts extends beyond its specific focus, dispelling any uncertainties regarding the legitimacy of this instrument within the Italian legal system.

Legal Considerations for Trusts in Italy

Despite the growing recognition of trusts in Italy, a specific regulatory framework within Italian legislation is still absent. Consequently, reliance on foreign laws becomes necessary for trust governance. The choice of applicable law holds significant implications for the functionality and validity of trusts in Italy.

Purposeful Establishment of Trusts

Understanding that trusts can only serve specific purposes, not shield assets from creditors, is vital. While asset separation naturally results from establishing a trust, it cannot solely motivate trust creation, nor can it defraud creditors or tax authorities.

Prospective trust settlors in Italy must carefully consider both the chosen law’s provisions and jurisprudence, along with the rules outlined in the Hague Convention of July 1, 1985. Additionally, they must ensure that the trust’s constitutive clauses align with Italian public order and tax regulations.

This scrutiny extends beyond trust regulation to assess the validity of the trust’s constitutive act itself, emphasizing the importance of thorough legal examination and compliance.

Deciphering Sham Trusts: Legal Implications and Standards

In the realm of trust regulation, the concept of a sham trust has evolved to tackle situations where the settlor maintains effective control over assets purportedly entrusted to a trustee, treating them as personal property. The law will consider such trusts null and void from the moment of their inception. Assets will revert to the ownership of the settlor

Mandates of the Hague Convention

The Hague Convention of July 1, 1985, explicitly mandates that for its application, assets within a trust must be under the trustee’s control, serving the interests of a beneficiary or a designated purpose (Article 2). In Italy, trust recognition hinges on the settlor effectively relinquishing control, with assets solely vested in the trustee.

While the settlor may retain certain rights or privileges, adherence to the Convention necessitates clear trustee control over the assets.

Furthermore, in many legal systems governing trusts, settlors may reserve significant powers in trust management. However, such clauses contradict the control requirement stipulated by the Hague Convention. It renders them incompatible with trusts established in Italy.

Once a trust’s constitutive act aligns with the applicable law and satisfies the Hague Convention’s rules, it must also comply with Italian public order regulations. For instance, trusts aiming to circumvent mandatory provisions of bankruptcy law or solely creating a separate estate from the settlor’s would be deemed null and void, the latter due to lack of consideration.


Scrutinizing Self-Declared Trusts: Legitimacy and Recognition

The viability of establishing a self-declared trust in Italy is subject to scrutiny. In this arrangement, the trustee and the settlor are one and the same.

Self-declared trusts are deemed legitimate in certain legal frameworks governing trusts. However, questions arise regarding their compliance with the recognition criteria outlined by the Hague Convention. In such trusts, the settlor retains complete control over the assets, albeit in the capacity of trustee. This departure from the Convention’s control requirement raises doubts about the recognition of self-declared trusts in Italy.

Case law further complicates matters by often deeming trusts illegitimate if the settlor retains control over the assets. This therefore casts doubts on the recognizability of self-declared trusts within the Italian legal system.

Tax Implications: Trusts and Revenue Agency Guidelines

It’s crucial to note that the Revenue Agency considers trusts where the settlor retains significant powers over asset administration or allocation (referred to as “interposed trusts”) as non-existent for tax purposes. Consequently, income derived from such trusts is taxed in the hands of the settlor.

Revenue Agency Guidelines:

The Revenue Agency has issued circulars providing guidance on the application of direct and indirect taxes to trusts (Circulars of August 6, 2007, No. 48, January 22, 2008, No. 3, and December 27, 2010, No. 61).

Transfer Tax:

The transfer of assets from the settlor to the trustee is subject to gift tax at a proportional rate (4%, 6%, or 8%), depending on the relationship between the settlor and the beneficiary. Additional mortgage and cadastral taxes (2% and 1%) apply to real estate transfers. However, exemptions for certain relatives and individuals with severe disabilities apply.

Exemptions for Individuals with Disabilities:

Trusts established for persons with severe disabilities benefit from exemptions from inheritance tax, gift tax, and mortgage and cadastral taxes on real estate transfers (Law No. 112 of June 22, 2016).

Income Tax Obligations:

Trusts are treated as taxpayers subject to corporate income tax, necessitating annual income tax return filings. Resident trusts require their own tax code and, if engaged in commercial activities, a VAT number.

The trustee fulfills all tax obligations of the trust. Income is attributed directly to beneficiaries in transparent trusts and taxed accordingly. Alternatively, income is taxed at the trust level in opaque trusts.

Safeguards and Limitations: Trusts and Creditor Rights

Trusts, being gratuitous acts, remain susceptible to ordinary and bankruptcy avoidance actions, prohibiting their use for defrauding creditors. Moreover, creditors harmed by a debtor’s actions that restrict disposal or transfer real or movable property registered in public records gratuitously can take legal action without requiring a prior declaratory judgment of the act’s ineffectiveness, provided they register the seizure within one year from the prejudicial act’s registration (Article 2929-bis of the Civil Code, introduced by Legislative Decree No. 83 of June 27, 2015).

Finally….

De Tullio Law Firm has over 55 years of expertise managing trusts and estate planning matters throughout Italy. Our firm is a full member of STEP, the world’s leading association for trust and estate practitioners.

If you need any advice regarding trusts in Italy, we are here to help. Please get in touch with us.

Italian Family Law: A Short Guide

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This short guide aims to cover the key elements of Italian family law: for a more in-depth explanation, please read our comprehensive Italian Family Law Guide.

Italian Family Law GuideWhether dealing with marriage, separation, divorce, or child-related issues, you should contact an experienced Italian family law attorney. Their expertise will ensures you protect your rights and handle legal proceedings correctly.

1. Marriage and Civil Partnerships under Italian Family Law

To marry in Italy, both parties must meet specific legal requirements, including age and consent. Registration with civil authorities is necessary for legal recognition of the marriage.

Civil partnerships offer similar legal benefits to marriage and are available to both same-sex and opposite-sex couples. You must register the partnership with civil authorities to formalize the partnership.

2. Divorce and Separation

Divorce begins with the filing of a petition, which must state the grounds for divorce. Common grounds for divorce include irretrievable breakdown of the marriage, adultery, unreasonable behaviour, desertion, or separation for a specified period.

For couples not ready for divorce, a separation agreement outlines terms for living apart, including child custody, support, and property division. This agreement can later become part of divorce proceedings.

3. Child Custody and Support within Italian Family Law

Decisions regarding child custody must be in the best interests of the child, considering factors such as the child’s welfare, parental capabilities, and the child’s wishes, depending on age and maturity.

Both parents are responsible for the financial support of their children. Child support calculations consider the income of both parents, the child’s needs, and custody arrangements.

4. Spousal Support

One spouse may receive spousal support – or alimony – during or after a divorce to maintain their standard of living. The amount and duration depend on factors like the length of the marriage, each spouse’s financial situation, and contributions to the household.

5. Property Division

When it comes to property division, it’s important to understand matrimonial regimes in Italy. Italian family law mandates equitable distribution of property acquired during the marriage. This involves a fair division, considering each spouse’s contributions to the marriage and their economic circumstances.

6. Domestic Violence and Italian Family Law

Victims of domestic violence are entitled to apply for protection orders to prevent further abuse. These orders may include orders prohibiting contact, removal from the family home and being placed in sheltered accommodation.

Legal assistance is provided to help victims navigate the legal system, guaranteeing their safety and upholding their rights under Italian family law.

Finally …

Understanding Italian family law is crucial for navigating personal relationships and legal challenges. Therefore, engaging a solicitor ensures your interests are protected throughout any legal proceedings.

For more detailed information, you can refer to our comprehensive Italian Family Law Guide or contact our firm for a consultation. Additionally, we are here to provide you with the support and guidance needed to handle any family law matter with confidence.

For further information or to schedule a free consultation, please get in touch with us. Our team is dedicated to providing expert legal assistance tailored to your needs.

You may also like to read more about Italian divorce law and EU regulations.

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Gay Weddings in Italy: The Legal Landscape

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Italy has made significant strides in LGBTQ+ rights and equality. Until 2016, the country did not recognize same-sex unions. However, that year marked a major milestone when the government passed a law allowing civil unions for same-sex couples. This legislation granted many of the same legal rights and protections as those enjoyed by heterosexual couples, setting the stage for the recognition and celebration of gay weddings in Italy.

Recognition of Same-Sex Marriages and Civil Unions in Italy

The 2016 law, known as “Legge Cirinnà” after its sponsor Monica Cirinnà, was a groundbreaking step for LGBTQ+ rights in Italy. It provided same-sex couples with legal recognition and many of the rights of heterosexual married couples, such as inheritance rights, next-of-kin status in hospitals, and pension and social security benefits. This was a major step toward equality and diversity in the Italian legal system.

In 2020, Italy’s Court of Cassation ruled that same-sex marriages performed abroad must be fully recognized. This decision furthered Italy’s commitment to equality and diversity, allowing same-sex couples to have their marriages legally recognized within the country.

Additionally, couples can therefore handle the legal aspects at home and have a symbolic ceremony in Italy to declare their love and commitment.

Civil Union Ceremonies in Italy

Gay weddings in Italy

Despite the historical influence of the Catholic Church, Italy has experienced a cultural shift toward acceptance and celebration of gay weddings. Advocacy groups, public figures, and changing societal attitudes have driven this change. Cities like Rome, Milan, and Florence have vibrant LGBTQ+ communities that organize pride events, festivals, and cultural initiatives promoting inclusivity and equality.

For those opting for a civil union ceremony in Italy, the mayor or a substitute conducts the ceremony in Italian: an official interpreter and two witnesses must be present. The ceremony lasts about 20 minutes and can include personal vows, readings, and music.

Although same-sex marriage is not yet performed in Italy, civil unions offer substantial legal protection.

Legal Paperwork for Civil Union Ceremonies in Italy

Same-sex couples wishing to have a civil union ceremony in Italy must provide specific documentation from their home country, which may need translation into Italian. Couples must make two appearances at the town hall: one to present paperwork and, depending on the location, a sworn declaration; the second for the ceremony itself. Timelines vary based on citizenship and residency status, so couples should check requirements before making travel arrangements.

For gay weddings in Italy, the key documents required are:

  • Both partners must present valid passports.
  • Depending on citizenship, a document declaring freedom to marry, which could be a certificate of non-impediment (CNI), Atto Notorio, or a single status certificate.
  • A document where each spouse declares the intention to marry: a nulla osta, statutory declaration, or sworn declaration, depending on your nationality.
  • If applicable, a divorce certificate or widow/widower certificate.

Inheritance Rights & Legal Documentation

Civil unions offer same-sex couples protections similar to those available to married heterosexual couples, including joint property ownership, asset transfers without significant tax penalties, and rights in property division upon dissolution. Moreover, these protections provide stability and promote equality for same-sex couples in Italy.

Civil union partners have significant inheritance rights:

  • Statutory Share: The surviving partner receives a portion of the deceased partner’s estate.
  • Joint Property Ownership: The surviving partner retains full ownership of jointly owned property without inheritance tax.
  • Survivor Benefits: Partners are eligible for benefits like pensions and life insurance payouts.

Same-sex couples should ensure their property and inheritance matters are well-documented:

  • Wills: Clearly outline asset division.
  • Co-ownership Agreements: Clarify ownership rights and responsibilities.
  • Powers of Attorney: Allow partners to make financial and medical decisions for each other if necessary.

Parental Rights and Family Law

While challenges persist in parental rights for same-sex couples, current Italian law does not permit them to jointly adopt children. Nonetheless, courts have acknowledged the parental rights of non-biological parents in specific instances, particularly when children are born abroad through surrogacy or artificial insemination. Moreover, advocacy groups are actively advocating for full equality, and the European Court of Human Rights has exerted pressure on Italy to recognize the rights of children in same-sex families. Therefore, comprehensive legislative reforms are necessary to ensure equal treatment for all families.

Transgender Rights in Italy

While the 2016 legislation significantly benefited same-sex couples, transgender individuals in Italy still encounter challenges. Currently, legal recognition mandates gender confirmation surgery to change gender on official documents. However, support groups and courts have increasingly challenged this requirement, leading to instances where changes have been allowed without surgery. Consequently, the legal framework for transgender rights is evolving, and continued advocacy is crucial for broader recognition and protection.

Legal Protections Against Discrimination

Italy has laws that prohibit discrimination based on sexual orientation in employment, education, and access to goods and services. Additionally, the country has ratified various international human rights treaties, which further reinforce these protections. Despite these advancements, activists continue to campaign for comprehensive anti-discrimination laws to ensure full protection against all forms of bias.

Finally …

Same-sex couples civil union italyThe legal landscape for gay weddings in Italy is evolving, reflecting broader societal acceptance of LGBTQ+ individuals. While challenges remain, especially regarding parental rights and full legal equality, Italy has made significant strides in protecting same-sex couples. By understanding the legal requirements and paperwork, same-sex couples can ensure their unions are recognized under Italian law. The progress thus far highlights the resilience and determination of the LGBTQ+ community and its allies. Gay weddings in Italy symbolize love and progress in the ongoing pursuit of equality and acceptance.

At De Tullio Law Firm, we offer personalized advice and support. We have over 55 years of experience handling clients’ Italian and cross-border property, residency, family, and inheritance matters. If you need help navigating the legalities of a civil union or a wedding in Italy, we are right beside you.

Book a FREE CONSULTATION with one of our lawyers.

Useful links for gay weddings in Italy:

UK

USA

Canada

Australia

You might also like to read our Family Law Guide

Maintenance And Divorce Allowances in Italy

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How does financial support work in Italian separations and divorces?


“All are equal before the law”… except when it comes to divorce! In Italy, when a marriage ends, it is common to assume that the spouse with the highest income should pay maintenance and divorce allowances.

In simple terms, alimony or spousal support is meant to equalise the playing field when the two members of a divorcing couple have significantly different incomes.

If you are part of an international marriage or you are married to an Italian national and you are divorcing in Italy, you may have an expectation of receiving financial support. However, between 2017 and 2018, two important judgments by the Italian Supreme Court changed the rules on divorce allowances. These changes mean that it is no longer so easy to obtain alimony.

allowances

Maintenance and divorce allowances in Italy

It is important to distinguish between maintenance and divorce allowances in Italy.

Regarding maintenance. This is an allowance provided to the spouse with the lower income from the moment the spouses separate until they obtain a divorce.

The divorce allowance, on the other hand, replaces the maintenance allowance starting from the divorce ruling. It regulates property relations between former spouses for the future.

How does the maintenance allowance work?

A maintenance allowance guarantees the same standard of living for the spouse with the lowest income that s/he had when s/he was still married. The “wealthier spouse” owes a part of his/her income to the other spouse. This aims to level out economic differences between the two spouses.

The judge therefore assesses the two salaries and ensures that husband and wife can afford the same standard of living … theoretically! In reality, however, there is a series of circumstances that increase or decrease the amount of the allowance. For example, the length of the marriage or the age of the beneficiary, …

Be careful though! Not everyone is entitled to a maintenance allowance. Reasons that may trigger non-provision of a maintenance allowance include being found guilty of:

– Failure of the marriage by neglecting one of the typical duties of spouses.

– Betrayal.

– Leaving home with the intention of never returning.

– Physical abuse of the wealthier spouse.

– Neglecting the family.

However, not being in love anymore is not a reason to lose the right to a maintenance allowance. You can’t rule the heart either at the beginning or at the end of a relationship!

divorce allowance

How does the divorce allowance work?

The rules change when the judge replaces the maintenance allowance with the divorce allowance.

The purpose of a divorce allowance is not to guarantee the former spouse the same standard of living as during the marriage. As the Supreme Court specified, “alimony should not be treated as an annuity. The purpose of a divorce allowance is purely to guarantee self-sufficiency, which is essential for living decorously.”

This means that unlike what occurs with the maintenance allowance, the greater wealth of one of the spouses does not increase the divorce allowance. In essence, this means that a divorce allowance can be lower than the maintenance allowance.

What do maintenance and divorce allowances have in common?

A divorce allowance is not due to someone who has violated the rules on marriage, fidelity, cohabitation, etc.

Who can get a divorce allowance?

While a maintenance allowance is due because there is a difference in income, it is less easy to understand entitlement to a divorce allowance.

The fundamental requirement is to prove that the party who wishes to obtain it, deserves it. In particular, according to the Supreme Court, the spouse has the right to a divorce allowance if s/he is:

– Too young to find a job. For example, someone who gets married while completing a degree course.

– Too old to find a job.

– Seriously ill, disabled or unable to earn;

– Unable to work because s/he gave up his/her career to look after the family, home and children, thus allowing the other spouse to concentrate on work and increase their wealth.

An example can help us to better understand who is likely to get a divorce allowance in Italy. A housewife who has never worked because of a joint lifestyle choice between the two spouses will find it more difficult to access to the world of work. On the other hand, a woman who, despite taking care of the house and children, continued to work, perhaps settling for a part-time job, will find it easier. Whereas the former is likely to receive a divorce allowance, the latter is not.

Who is not entitled to a divorce allowance?

A spouse cannot obtain a divorce allowance if:

– She/he is young, with professional training and work experience that allow him / her to find a job even if currently unemployed;

– Did not work of his/her own will. In other words this was not due to a shared lifestyle choice agreed with the other spouse;

– After the separation, does not provide proof that s/he has looked for a job to support him/herself. Proof such as sending a CV, participating in public competitions, registering on job placement lists, …

Finally…

At De Tullio Law Firm, we often receive questions about Italian divorce law. 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. We recognise that so many issues need consideration and decisions need to be made at what is a very stressful time. If you need assistance, please don’t hesitate to contact us. We are here to help.

For more information, you may like to read our Guide to Italian Family Law

 

Child Visitation Rights in Italy: Supreme Court Ruling

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The Italian supreme court has ruled that grandchildren cannot be forced to visit grandparents if they don’t want to. The ruling, ending a 3-trial dispute, underscores the importance of considering children’s wishes in visitation matters.

FAMILY CHILDREN

The right to maintain relationships:

Since 2006, Italian family law has recognised a child’s right to maintain a meaningful relationship with their grandparents, despite a parental separation.

Grandparents also have the right to ask the court to establish whether a parent’s decision to deny them access to their grandchildren is damaging to the child’s well-being and therefore illegal.

Family tensions led to ruling on child visitation rights

In 2019, the paternal grandparents and uncle of two children took legal action in Milan. Their aim was to regain access to the minors after the parents blocked their visits due to a hostile family relationship.

The court found that the grandmother had acted aggressively towards her daughter-in-law and upset the children. Nonetheless, it still ruled in favour of the grandparents, allowing visits if supervised by a social worker. The parents appealed. However, the Milan appeal court ruled that the visits must continue and ordered the family to undergo group therapy.

Despite recognising the animosity between the grandmother and daughter-in-law, the judge warned that cutting off the grandparents could harm the children psychologically. However, the parents argued that the children did not want the visits due to family tensions.

The Italian supreme court then heard their case. The judge declared that the family could not compel the children to see their grandparents if they opposed the relationship and were over 12 with the ability to discern. The judge emphasised that the children’s welfare must be prioritised and that the family could not impose an, “unwelcome and unwanted relationship”.

FAMILY TENSIONS

Discernment in child visitation cases in Italy

“Discernimento” in Italian law involves good decision-making, especially in difficult situations. Careful consideration of facts, consequences and informed choices is necessary. In the legal context, it refers to decision-making ability and understanding of effects. Minors are considered capable of acting with discernment at 14, but in certain cases, they may be deemed so before 14. Italian law allows for legal guardians for minors lacking discernment, regardless of age.

family children

Finally …

The Italian supreme court’s ruling emphasises children’s interests and well-being as top priority. This can be hard for other family members to accept. However, the interests of children must come first. A family member cannot impose an undesired or unacceptable relationship on children over the age of 12 with discernment. Discernment means the ability to make good decisions.

At De Tullio Law Firm we provide legal advice and support in all fields of Italian law. Our particular specialties are Italian and cross border property, inheritance and family matters. If we can be of assistance, please get in touch.

You may like to read our comprehensive guide to Italian Family Law.

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Italian Citizenship: An Essential Guide for Foreign Nationals

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Italian citizenship offers a plethora of opportunities, including the right to live, work, and study in Italy and across the European Union. At De Tullio Law Firm, we understand the challenges and nuances of Italian law and are dedicated to guiding our clients through each step of this intricate process. This process may seem daunting due to complex legal requirements and procedures that require meticulous adherence.

Understanding Italian Citizenship Law

Several pathways exist for acquiring Italian citizenship: by descent (jure sanguinis), through marriage (jure matrimonii), or after a period of legal residency in Italy. Each pathway entails specific requirements, documentation, and legal processes that individuals must navigate with precision and care.

 

  • By Descent: If you have Italian ancestors, you may be eligible for citizenship through jure sanguinis. This process involves proving your Italian lineage through a series of official documents and records.

  

  • Through Marriage: Spouses of Italian citizens can apply for citizenship through jure matrimonii, provided they meet certain residency requirements and have been married for a specified period.

  

  • By Residency: Non-EU nationals who have legally resided in Italy for a considerable period may also be eligible to apply for citizenship, depending on their specific circumstances.

 

Why Download Our Comprehensive Guide?

Our “2024 – Italian Citizenship Guide” is an invaluable resource. We have designed it to demystify the process of acquiring Italian citizenship. This guide covers:

– Detailed explanations of the different pathways to citizenship.

– A step-by-step overview of the application process.

– Required documentation and how to obtain it.

– Common pitfalls and how to avoid them.

– Legal nuances and recent changes in the law.

By downloading our guide, you will gain access to expert insights and practical advice. This is an essential tool for anyone considering making Italy their permanent home or looking to claim their Italian heritage.

Finally

Italian citizenship opens doors to a rich cultural heritage and a high standard of living. While the process may seem complex, with the right guidance and resources, achieving citizenship is within reach. When you choose De Tullio Law Firm, we are right beside you every step of the way.

Italian Law of Filiation: A Family Law Case Study

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Italian law of filiation: the legal rights of children born in and out of wedlock

De Tullio Law Firm provided legal expertise regarding the Italian law of filiation at the Supreme Court of Western Australia.

The parties involved in the case about paternity and inheritance rights emigrated to Australia from Italy in the 1960s. Before ruling on the case, the court needed to understand the Italian law of filiation.

Case Background

In this case study, although we have disguised names and circumstances, we 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 Giovanna Rossi, the plaintiff, was a legitimate child of the late Giuseppe Rossi and was therefore entitled to claim a share of her father’s inheritance.

The plaintiff

The plaintiff, Giovanna, issued proceedings in the Supreme Court of Western Australia regarding inheritance of her father’s estate. Following his divorce from Giovanna’s mother, Mr. Rossi re-married and had other children.

Giovanna was born in 1950. Her father and mother were not married at the time. They did however get married a couple of years after Giovanna’s birth.

In Italy, at the time of Giovanna’s birth, it was illegal for fathers to recognise any children born out of wedlock. Giovanna’s birth certificate therefore gives her mother’s maiden name, Bianchi.

However, Giovanna’s birth certificate contains a note stipulating that Giovanna is the legitimate daughter of Mr. Giuseppe Rossi. The birth certificate annotation follows the marriage of Mr. Giuseppe Rossi and Ms. Sofia Bianchi in 1953.

The defendants

The defendants in this case are Giovanna’s half-siblings. They are the children from Mr. Giuseppe Rossi’s second marriage. The defendants dispute Giovanna’s legal rights as an heir and beneficiary to Mr. Rossi’s estate because Giovanna was an “illegitimate” child. They maintain that the subsequent marriage between Mr. Rossi and Ms. Bianchi did not automatically give Giovanna the status of a legitimate child.

What rights does the Italian law of filiation provide?

Firstly, the Italian law of filiation has abolished the old distinction between children born in and out of wedlock.

Constitutional law has driven important changes to legislation regarding filiation with the aim of guaranteeing equality. The consequence of this legislative process has been to stipulate a single status for all children.

Reform of Italian filiation law

Filiation law reform, Riforma della filiazione, modified the Italian Civil Code – in particular, Italian Law no. 219 of 10 December 2012.  This law states that illegitimate children – since reforms in 1975 to Italian family law, known as, “natural children” – must not be subject to any discrimination because of the circumstances of their birth.

All children are equal in the eyes of the Italian law

Both legitimate and natural children therefore have the same status: figlio. All children have equal rights and parents have a responsibility toward their offspring. A child has the right to receive care, education, assistance in case of need and a share of any inheritance.

In other words, the Italian Civil Code, as well as other Italian legislation referring to the relationships between parent and child, only permits the use of the word “child” (figlio/figlia). There is no longer any distinction such as, il/legitimate, natural or adopted.

The provision of a uniform status of filiation means that all children have the same rights to receive care, education, assistance in case of need and a share of any inheritance and parents are responsible for providing these rights. In addition, the express intention of Law 219 of 2012 extends parental responsibilities to parents’ relatives.

2012 filiation reforms are retroactive

The Filiation Reform (Law 201/2012) is applicable to all people, not only those born after a certain date. This means that the abolition of the distinction between legitimate and natural/illegitimate children is retroactive. In other words, it is applicable to parent-child relationships prior to the Law 219/2012 entering into force on 1st January 2013.

A major effect of the abolition of the distinction between natural children and legitimate children is that natural children have gained an equal right to succeed to their parents. They are entitled not only to inherit a share of their “natural” parents’ estate but also to inherit from other relatives of their parents.

How was Italian law different before reforms?

Prior to reforms, there was a huge difference between the status of legitimate and illegitimate children in Italy. Illegitimate children had none of the legal rights afforded to legitimate children.

When Giovanna was born in the 1950s, there were only two ways to legitimate children born out of wedlock and give them the status of figlio. Either the parents could marry after the birth or, the father could make a formal  statement to a notary, declaring that he was the father of the child.

Legittimato quale figlio

Giovanna’s birth certificate contains the phrase “legittimata quale figlia”. This means that following the marriage of her natural parents, Giovanna acquired the status of child. She went from the condition of being illegitimate to a condition where she was recognised as having the status of a legitimate child with all the accompanying rights of being a child.

This was in accordance with applicable Civil Code and legislation in force at that time. Also, as previously mentioned, following reforms to the Italian law of filiation, there is no longer any distinction in Italy between children born in or out of wedlock.

Case outcome

According to the Italian Law, Giovanna 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. Rossi’s marriage to Ms. Bianchi.

The event of a marriage between her natural parents gave Giovanna the status of child and, legitimated her as a child of Giuseppe Rossi and Sofia Bianchi in accordance with 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 therefore judged that Giovanna was indeed the late Mr. Rossi’s legitimate child and, as such, was entitled to receive a portion of his estate as her inheritance.

Finally …

At De Tullio Law Firm we provide legal advice and support in all fields of Italian law. Our particular specialties are Italian and cross border property, inheritance and family matters. If we can be of assistance, please get in touch.

You may also be interested in Partition of Property among Family Members.
You may also like to watch our info videos on the subject of Italian inheritance law.

Divorce in Italy: How is property split?

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How is the house divided in a divorce in Italy?

This article explores Italian matrimonial regimes, or marital property systems, and how property is split in a divorce in Italy.

Matrimonial regimes in Italy

“Regime patrimoniale dei coniugi” in Italian.

Because matrimonial regimes regulate financial affairs between couples, matrimonial regimes may become a significant aspect in a divorce settlement. This is particularly relevant if one or both spouses are not Italian nationals and own immovable assets such as real estate in Italy.

In Italy there are two main matrimonial regimes: the community of assets “comunione dei beni” and separation of assets “separazione dei beni”.

Community of assets

This regime means spouses own all purchases they make during the course of their marriage in common.

The community of assets regime excludes certain personal items from common ownership. These include assets that spouses owned prior to marriage and gifts or inheritance assets the couple acquires during the marriage.

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The main aspect of the community of assets regime is that even if the other spouse was absent at the time of the purchase, both spouses own an equal share of the purchase. Of course, there are exceptions. Each case is different and requires examination.

Separation of assets

If the couple, prior to or during the marriage, adopted a separation of assets regime, each spouse is the sole owner of any purchase they make.

The only commonly owned assets will be those the couple specifically purchases together.

In order for a separation of assets matrimonial regime to be legally valid, a couple needs to put a written agreement in place.

If a marriage is subject to Italian law, couples can draw up an agreement when they marry or at a later stage.

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

Default position

Italy has a Civil Law system, whereby codified statutes predominate. Italian family law provides that a community of assets is the default matrimonial regime.

For foreign nationals, although a marriage is subject to the spouses’ national law, the Italian law may still be relevant. In particular when it comes to purchasing and owning property in Italy.

About 80 countries have Common Law systems which defer to country laws of the property’s location. Therefore, your national law may defer to Italian law when it comes to property purchases and matrimonial regimes.

What is the matrimonial regime applicable to your assets in Italy?

As previously mentioned, unless spouses make a written agreement, the default regime applicable to purchases during the marriage is the community of assets.

To legally adopt a separation of assets matrimonial regime, spouses must make a notarised deed.

Unless you have a notarised deed, doubts and issues can arise during divorce proceedings. In this case the default community of assets regime would apply.

A separation of assets clause in a deed of sale for a property signed by only one spouse is not sufficient to determine a matrimonial regime from a legal point of view.

Without a notarised deed regarding your matrimonial regime, if only one spouse signed a property deed of sale, Italian law will still consider the property as belonging to both spouses.

Generally speaking, a community of assets regime does not impact inherited or gifted properties. These remain in the name of the sole spouse who inherited them. However, there may be exceptions depending on the exact wording of any gift deed or will.

Finally …

Division of Italian assets between spouses in the event of divorce in italy depends on matrimonial regimes. It is important to understand if you own the property in common with your spouse. If you need assistance or would like to discuss your personal situation. please get in touch with us.

 

You may also be interested in How to protect inheritance from divorce.

You may also like to watch our info videos.

How To Protect An Italian Inheritance from Divorce

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How to protect an inheritance from divorce and/or separation

Separation and divorce are two of the most painful events in life. The decision to legally end a relationship can set off a long and difficult process. The upheavals and emotional challenges can be enormous. On top of this, complex legal and financial issues with short and long term implications need careful management. One aspect to consider when deciding to separate and/or divorce is how to protect an Italian inheritance.

An Italian inheritance might comprise property, movable and immovable assets and savings. Italian inheritance law specifically guarantees inheritance to so-called, “forced heirs”.

A consultation with a lawyer can provide an idea of the likely legal and financial outcomes of your situation. Generally, lawyers will provide a free initial consultation for this purpose. It is therefore worth seeking professional advice at an early stage.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

While separation and divorce is a family crisis, it is crucial to have a clear understanding of how to protect an Italian inheritance in order to safeguard and guarantee children’s rights.

Indeed, children have the right to support from both their parents. Italian Constitution and Article 147 of the Italian Civil Code states that children have this right until they reach the age of 18.

Matrimonial regimes

In May 2015, Italy introduced the so-called, ‘quickie divorce law’. This cut the amount of time it can take to get a divorce from three years to as little as six months.

There can be important consequences on estate-related issues in divorce and/or separation. These can vary according to the matrimonial financial regime the couple chose at the time of, or during, their marriage.

Couples in Italy may choose between a matrimonial regime of either community of assets, comunione dei beni, or separation of assets, separazione dei beni.

If couples do not have a notarised deed stipulating they have chosen a separazione dei beni regime, Italian law takes the view that the matrimonial regime in place is the default comunione dei beni matrimonial regime.

Expat couples married elsewhere but resident in Italy are regarded as being married according to the comunione dei beni regime. This means a couple jointly owns all assets they acquire during their marriage. In the event of a divorce, each spouse will therefore receive an equal share of these assets.

However, there are exceptions. For instance, if a partner acquired a property prior to the marriage, or received a property after the marriage as a gift or an inheritance, this would not necessarily be split equally in the case of a divorce. It is therefore important to understand your matrimonial regime and check property deeds to see who actually owns what.

Finally …

Division of Italian assets between spouses in the event of divorce or separation depends on matrimonial regimes. It is important to understand if you own the property in common with your spouse. If you need assistance or would like to discuss your personal situation. please get in touch with us.

You may also like to watch our info videos.

EU Property Regime Rules. Marriages & Partnerships

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EU 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. You may also find our info videos useful.