How is Italian property divided in a divorce?
This article explores Italian matrimonial regimes, or marital property systems, and how property is divided in a divorce.
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.
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.
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.
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.
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