Italy

Sources of Law

Civil Law- Family Law is contained in articles 74 to 448 of the first book of the Civil Code, articles 706 to 711 of the Civil Procedure Code, Law 1 December 1970 no. 898 that governs divorce and articles 26 to 45 of Law 31 May 1995 no. 218 that regulates private international law.

Jurisdiction

Brussels II bis applies as Italy is part of the EU. In relation to countries outside the EU, Italy would apply articles 3 and 32 of the International Private Law Statute (no 218, 31st May 1995)

Domicile and Habitual Residence

Article 43 of the Civil Code “Domicile and residence”.

“The domicile of a person is in the place where that person has established the principal centre of his/her business and interest. Residence is in the place in which the person has his/her habitual abode”

Abode is not defined by the Civil Code but is considered to be the place where the person is actually staying at any one time.

Residence is a matter of fact which can be proven by any means of evidence, not only through registration certificate.

Conflict of Law/Applicable Law to be Applied

Common nationality

The law of the State where the family life has been predominantly based.

Pre-Nuptial Agreements

Prenuptial Agreements based on Italian Law are not enforceable. However, prenuptial agreements entered into pursuant to foreign law which are valid under that law may be enforceable in Italy unless the principle of International Public Order is violated.

Child Custody

The current legal regime is shared custody, according to which both parents exercise parental authority and, mutually, make the most important decisions related to their children's instruction, education and health.

This principle has given minors the right to maintain a balanced and continuing relationship with both parents, the right to receive care, education and instruction from both of them and the right to maintain significant relationships with grandparents and relatives of sides of the family.

Divorce

Main ground is irretrievable breakdown of marriage. A separation of 3 years establishes the ground.

Finances/Capital/Property

Communion of ownership is the legal regime unless the spouses chose the separation of assets. Assets purchased by the spouses during the marriage (common ownership) split 50/50 between the parties upon separation.

Pre-marital assets, donated and inherited wealth are excluded.

Court cannot order lump sum/ property transfer.

Finances/Maintenance

It is possible for the financially weaker spouse to apply for maintenance.

The aim is to allow the weaker spouse to enjoy the same standard of living enjoyed during the marriage.

Fault may also be relevant, because the “guilty” spouse is not entitled to seek alimony, and is considered on a case to case basis.

At the moment of divorce, in addition to the said principle, factors taken into account include the contribution to the welfare of the family, the accrual of assets during the marriage and the spouse’s ability to provide for themselves.

There is no limit on the amount that be ordered.

Spouses who are able but unwilling to provide for themselves can be denied maintenance only at the moment of divorce.

Child Maintenance

Both parents must provide child support for their children until the children become economically independent. This applies even after the children have reached the age of majority unless the children are able to work but unwilling to do so.

Cohabitants

Cohabitation is not a legally recognised status in Italy and has a very limited legal protection.

Community of property regime does not apply.

The only protection foreseen is for children born out of wedlock who are treated as equivalent to legitimate children.

Civil Partnership/Gay Marriage

The Italian legal system does not recognise civil partnerships or gay marriages.

With thanks to Andrea Russo and Benedetta Rossi of Studio Pirola Pennuto Zei & Associates, Castro Pretorio 122, 00185 Rome. Italy. www.pirolapennutozei.it