06/04/2021
Under Italian law, a divorce is the legal dissolution of the marriage, which puts an end to the spouses’ legal duties and responsibilities deriving from the marriage (Giambrone). Italian divorce law is heavily regulated by the Italian Civil Code in an overarching no - fault system, and anyone may apply for divorce in Italy if the marriage took place there or if one of the parties is Italian or a resident in Italy (Giambrone). For situations which involve one or more foreign citizen residing in Italy, who were either married in another country or represent multiple nationalities, in the case of divorce, foreign national and supranational EU law may take precedence over Italian law (Boccadutri).
There are two types of legal separation in Italy, and divorce proceedings can occur by mutual agreement or on a contested basis. In either case, the couple must appear before the president of the Italian local court with an official statement of separation, after which a choice of reconciliation or a formal separation for one year will be granted (Giambrone). Legal separation does not terminate the marriage, it does however apply to the separation of joint ownership of assets between parties (Giambrone). Furthermore, under legal separation granted by the local court the duty of cohabitation under the matrimonial home is interrupted and the duty of marital fidelity is no longer applicable (Giambrone). Consensual separation stems from a mutual agreement between husband and wife, which then must be approved by the court (Giambrone). Judicial separation, on the other hand, involves court hearings where discussions are initiated before an agreement is reached, in which the judge determines which spouse is responsible for the failure of the marriage (Giambrone). In the former case, both the spouses agree on the terms of the divorce before filing a joint application for divorce with the court (Giambrone). Within the judicial separation proceedings, parties come to a temporary
determination of their personal and financial circumstances (Giambrone). Through the process of court hearings, necessary interim orders related to the attribution of the family home, custody and visitation rights, and ancillary relief will also be made (Giambrone).
In the cases where marriages were celebrated abroad between Italian citizens, or between foreign citizens residing in Italy, or between an Italian and a foreign citizen, or else between partners with more than one citizenship, EU regulation will begin to take precedence (Boccadutri). Such marriages are regulated in Italy by law 218 of 1995, integrated by European Regulation n.1259 of 2010 (Boccadutri). Transnational marriages are primarily regulated based on the principal locus regit actum, or by the laws of the place in which they were celebrated (Boccadutri). Furthermore, law 218/1995 of the regulation of marriages is also applicable to divorces for foreign citizens residing in Italy or Italian citizens residing abroad (Boccadutri).
Through the integration of European Regulation 1259/2010, a single set of rules were established for determining which national law to apply to proceedings for divorce or judicial separation in cases involving spouses of multiple nationalities and residencies (“Applicable Law on Divorce and Judicial Separation”). If the spouses do not choose the law that should apply to their divorce or judicial separation, the case will be subject to the law of the country. However, spouses may enter into a formal agreement choosing which national law shall apply to their divorce or judicial separation (“Applicable Law on Divorce and Judicial Separation”). For instance, in cases of consensual divorce, divorce can be regulated by the applicable law of the country where couples have spent most of their married life, the law enforced in the country where the couple have resided in their last period together if at least one of the spouses still resides there when they apply for divorce, and the law of the country of which at least one of the spouses has citizenship at the beginning of the divorce procedures (Boccadutri).
The law of the country where the divorce application is filed is more often utilized in contested judicial proceedings of the country of origin (Boccadutri). In case of judicial divorce, the law of the country where both spouses have usual residency takes precedence over other sources of law (Boccadutri). The law of the country where spouses last resided together, unless more than one year has passed from the time they resided there to the divorce application, and provided that one of the spouses still resides there, and the law of the country of which both spouses are citizens at the moment of their divorce application are most applicable for contested transnational divorces (Boccadutri). More specifically, because Italian divorce is preceded by legal separation and not all countries apply the same rule, those who reside in Italy but married in a country that allows couples to divorce without going through the legal separation phase, may divorce before an Italian judge by way of foreign decision (Boccadutri). They may do so if they submit a consensual request to end their marriage without undergoing a legal separation.
Ultimately, provided that the following measures of Article 64 under Law 218/1995 are met, a foreign decision declaring a divorce is recognized in Italy without the need for any further proceedings (Russo, Andrea and Benedetta Rossi). The judge who issued the decision must have been empowered to do so, the defendant was notified of the proceedings and their right to a defense was not violated, the parties appeared before the court and the trial is not defective according to the foreign local law, the decision is no longer appealable under the foreign local law, the decision is not contrary to another non-appealable Italian decision, there are no Italian proceedings still pending between the same parties concerning the same matter, and the decision does not go against the rules of Italian public order (Russo, Andrea and Benedetta Rossi).
Moreover, the matter only needs to be brought before the Court of Appeal if the foreign decision is not recognized, the recognition is challenged, or enforcement of the foreign decision
is required (Russo, Andrea and Benedetta Rossi). The requirements for official recognition of a divorce in Italy, evaluated by an Italian judge, will only not be recognized if a judgement is irreconcilable to judgements given in previous proceedings in Italy, or contrary to public policy (Russo, Andrea and Benedetta Rossi). Most importantly, pending separation proceedings will be halted, and therefore if a foreign divorce is at one point not admissible in any current EU member state, the Italian court of appeal can directly declare divorce, to show that the marital bond between the spouses is terminated (Russo, Andrea and Benedetta Rossi).
(article by Allace Miklautz, trainee at NL&partners Studio Legale).