Tag Archive for: Italian Divorce Law

How Is Property Divided in A Divorce According To Italian Law?

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.

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 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 be interested in How to protect inheritance from divorce.

You may also like to watch our info videos.

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.

 

Parental Rights in Italy – Italian Family Law

In Italy, children have the right to a personal relationship with both parents

It is important to understand parental rights in Italy for those living or moving to the country. That way, if you have children, you can be in the best position to make decisions for the future.

All EU countries recognise that children have the right to a personal relationship and direct contact with both parents. This also applies if the parents live in different countries.

What about parental rights in Italy in the event of divorce or separation?

It is important to determine whether the children will live exclusively with one parent or alternate between parents.

If both parents live in Italy but are unable to reach an agreement, you may have to take the matter to court. A judge will then decide on living arrangements and parental rights. The court’s decision will consider the child’s best interests and determine your custody rights. It will also decide where the child resides.

In situations involving more than one country where, for example the parents live in different countries, the courts responsible for handling cases of parental rights are those in the country where the child is habitually resident. You can agree with your spouse that the court ruling on your divorce should also rule on parental rights.

Where the child has more than one nationality, the law of the country with which the child has the closest connection applies. Under section 19 of of Act No 1995/218, if the child has more than one nationality and one of these nationalities is Italian, the Italian nationality takes precedence. It is the nationality of the child at the point the case goes to court that decides this.

Parental rights in Italy: 3 types of child custody

1. Exclusive custody – one parent has sole custody and makes all day-to-day parenting decisions. The other parent has limited responsibilities.

2. Joint custody – gives both parents equal parental responsibilities and custody. However, in the interests of the child or children, they are likely to live predominately with one parent. In theory, this approach is the best for a child as they have access to both parents.

3. Alternating custody – means both parents can exercise their parental responsibilities within predetermined custodial time periods given. (This form of custody is rare).

Cases where the judge grants exclusive custody to one of the parents have become rare in Italy. Sole custody would require proof that it would be in the best interests of the child.  However, even in cases of sole custody, both parents will need to consult on major decisions relating to the child. Moreover, in cases where joint custody is applicable to disputing parents, visiting arrangements and a timetable will be established. Similar to exclusive custody cases, these arrangements give the parent that does not reside with the child or children limited access rights.

Marriage and registered civil partnerships

in order to determine parental rights in Italy, married or registered couples, will have been legally separated for six months and must have filed for divorce. They will need to go to court regarding both their divorce settlement and arrangements for their child or children. Following divorce, the child will live according to care arrangements determined by the court.

Unmarried couples and partners

In the case of unmarried couples, or estranged married couples, there is no requirement to go to court. Parents can simply agree between themselves on parental responsibilities and living arrangements. However, we strongly recommend seeking legal advice to formalise and record arrangements. Within the EU, a married father has the same rights as the mother. Where a couple cannot agree arrangements between themselves, the court in the child’s country of habitual residence determines parental rights and responsibilities.

In theory, both parents have equal parental rights and responsibilities for their child or children. In practice, however, where there is no legitimate reason otherwise, the mother’s home is more likely to be the main residence of the child.

Same-sex couples

On the subject of same-sex couples, a 2013 Italian Supreme Court decision (601) granted sole custody of a child from an earlier marriage to a mother living with another woman. The court declared that, “there is no scientific certainty proving that a minor cannot grow up in a balanced way within a same sex couple”. 

Parental rights in Italy in adoption cases

The Italian law has always stipulated that a couple must be married in order to adopt a child. Italian law 184/1983 governs adoption and foster care. The law, in principle, only permits married couples, who must be of the opposite sex, to adopt. According to the law, there are no restrictions on foster care. In a limited number of situations, the law provides for adoption in certain cases by a single person. In addition, some courts have interpreted this to include the possibility of unmarried couples adopting a stepchild.

From an inheritance point of view, no distinction is made between legitimate, natural and adopted children – all have equal rights.

Finally …

If you would like to discuss your personal situation, you can reach us here for a free consultation.

 

You may also be interested in Italian divorce law and EU regulations.

You may also like our info videos.