Tag Archive for: Cross-cultural relationship

Italian Property Transaction? Seek Legal Advice

Don’t Leave Your Italian Property Transaction To Chance …

When buying or selling a property at home, most people wouldn’t dream of doing so without the assistance of a qualified and independent lawyer. Yet in Italy, many buyers and sellers, particularly foreigners, decide not to instruct a lawyer and instead rely on an estate agent to advise them about their Italian property transaction.

Many foreign property buyers find their way to our law practice after encountering serious problems during or after their property transaction. Sadly, some have lost everything.

The reality is that buying an Italian property is an investment. You may not be familiar with the Italian language. Add to this unfamiliar legal, tax and administrative systems and procedures and you are looking at a very complex situation.

Essentially, the need for an experienced, independent lawyer is far greater for your Italian property transaction than when buying property at home.

Italian real estate agents are not qualified to provide legal advice

In many instances, an estate agency will offer to handle all the paperwork for a buyer. With registered and reputable agencies, the intentions are genuine and the conveyancing may well complete satisfactorily. However, estate agents are not trained lawyers. Many have no professional liability or indemnity insurance to cover you in case your property transaction goes wrong or if they miss something crucial.

Real estate agents act on a vendor’s behalf in an Italian property transaction

Also bear in mind that an estate agent is not independent. In fact, they have a potential conflict of interests in offering you advice. Remember that the estate agent is acting for the vendor.

The agent’s primary goal is to sell the property on the seller’s behalf in order to earn their commission. If the sale doesn’t go through because somebody spots an irregularity or a legal problem, the estate agent earns nothing. You, on the other hand, may face a potentially costly and time-consuming ordeal to sort out the issue. You may even expose yourself to prosecution.

Appoint a lawyer in your home country?

As an alternative, some clients look to instruct a lawyer in their home country. However, it is unlikely that the lawyer will have local knowledge of Italy. In addition, it is costly to fly a lawyer to Italy several times in order to conduct searches and checks and to attend completion at a notary’s office.

A lawyer overseas will in all likelihood subcontract the work to a local lawyer in Italy. This may be a lawyer who lacks experience and/ or expertise in cross border and Italian property law.

Because everything needs to go through a number of people, there will inevitably be delays with information and documentation. On top of this, both the foreign and local lawyers will expect to get paid, so in essence, you end up paying twice for the same service.

Finally …

De Tullio Law Firm specialises in Italian and cross border property, inheritance and family legal matters. We are regulated by the Italian Bar Association and a full member of STEP (Society of Trust and Estate Practitioners), the leading worldwide professional body for practitioners in the fields of trusts, estates and related issues.

Our knowledgeable, experienced and multilingual team of professionals manage client cases throughout Italy.

Our clients also benefit from De Tullio Law Firm’s Professional Indemnity Insurance. This is in place should something go wrong during an Italian property transaction due to negligence by our firm. Our clients can however rest assured that in more than 55 years of operations, we have never had to make a claim.

Why leave your property transaction to chance? Get in touch with De Tullio Law Firm. We are here to help make sure your Italian property transaction is a safe and smooth experience.

 

You may also be interested in Buying property in Italy

Italian Divorce Law And EU Regulations

Living in a cross-cultural relationship?

We 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.

You may also like to watch our info videos.

Married Couples And Registered Partners in Italy

Regime 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.

You may also like to watch our info videos.

 

Brussels IV: Cross-Border Inheritance Law

What is cross-border inheritance?

Cross-border inheritance laws determine which country handles an inheritance (known in legal terms as succession) and, which country’s national law will govern the inheritance. Cross-border inheritance applies if you live in a country which is not your country of origin or if you own assets in more than one country. Likewise, if you are a beneficiary or executor of a family member who lived in a different country from their country of origin when they died. EU Regulation 650/2012, also known as Brussels IV, came in to effect on 17th August 2015.

Brussels IV has implications for all nationals who reside in a participating EU Member State or who have a connection to a participating EU Member State.

Prior to the introduction of Brussels IV, each EU jurisdiction applied its own rules to govern the devolution of individuals’ property.

In order to determine which country laws would apply to an estate, EU states considered various connecting factors. These included domicile, residence, nationality or habitual residence. In addition, in some EU states, applicable succession law depended 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, protracted and complex conflicts of laws.

Brussels IV simplifies cross-border inheritance matters

Since the 17th August 2015 however, participating EU States have harmonised succession rules. In an effort to simplify cross-border succession, the EU adopted a single, unified connecting factor – habitual residence.

Therefore, the law of the country where the individual was habitually resident at the time of death is the default position. This, regardless of the location of assets in the estate and, whether the assets are immovable or movable.

For example, if you are a British national but you are habitually resident in Italy, Brussels IV means that instead of your assets passing under the laws of England and Wales, Scotland or Northern Ireland, Italian inheritance law will apply to your worldwide assets.

Furthermore, your estate will be subject to Italian forced heirship rules. Forced heirship rules are similar to UK Intestacy rules. However, forced heirship is applicable even if there is a will. The key point is that Italian forced heirship rules take precedence over a will.

In practice, this means that close family members inherit the deceased’s property regardless of the contents of the deceased’s will. This can often be in preference to the deceased’s spouse or partner. Sometimes, this creates conflicts within families who are unfamiliar with forced heirship cultures. Particularly  if the deceased had children from previous relationships. According to Italian forced heirship rules, these children must also inherit a share of their deceased parent’s estate.

Brussels IV provides an opportunity to elect a country law to apply to your succession

Brussels IV allows individuals to make an election for the country of their nationality to apply to the devolution of their entire estate. Or, where individuals have multiple nationalities, a testator may choose to apply one of these nationalities.

Testators do however need to take action. If you own a property in Italy, you can nominate a country law in your will. This is known as a Choice of Law codicil.

If you are in the process of making or reviewing your will, it is therefore worth considering including a properly drafted Choice of Law codicil to apply to cross-border inheritance. You need to carefully consider matters such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights with respect to your estate.

Another benefit of Brussels IV is the European Certificate of Succession (ECS). This allows heirs, legatees, executors of wills and administrators of the estate to prove their status. The certificate is then valid in all other EU Member States.

Brussels IV also provides potential benefits for non-EU nationals

Interestingly, there are also potential benefits for non-EU nationals resident in an EU Member State. Again, you need to make an appropriate Choice of Law in your will. For example, US nationals could nominate US law to apply to the succession of their property in Italy. An Australian with property in Spain could nominate Australian law. A Canadian citizen with property in France could elect Canadian law, and so on.

Finally …

Cross-border inheritance law is a complex matter. We recommend you seek independent legal advice regarding your personal situation.

For more information about Italian succession and inheritance, you may find our Italian Succession Guide useful.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. We are a full member of STEP, the world’s leading association for trust and estate practitioners. If we can be of assistance, please get in touch.