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CONSORTIUM ASSER - UCL

Association momentanée

R.C. Schimmelpennincklaan, 20-22


2517 JN DEN HAAG
Nederland
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Collège Thomas More
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B - 1348 LOUVAIN-LA NEUVE
Belgique

COMMISSION EUROPÉENNE
General Direction Justice and Home Affaires
Unit A3 Judicial Cooperation in civil matters
JAI/A3/2001/03

STUDY ON MATRIMONIAL PROPERTY REGIMES


AND THE PROPERTY OF UNMARRIED COUPLES
IN PRIVATE INTERNATIONAL LAW AND INTERNAL LAW

NATIONAL REPORT

ITALY

Giovanni COMANDE

Scuola Superiore di Studi Universitari e di Perfezionamento S. Anna

_____________________________________________________________________________

TMC Asser Instituut Département de droit international UCL


Tel 00 31 (0)70 34 20 300 Tél. 00 32 (0)10 47 47 73
Fax 00 31 (0)70 34 20 359 Fax 00 32 (0)10 47 86 14
consultancy@asser.nl verwilghen@int.ucl.ac.be
TABLE OF CONTENTS
Table of Contents................................................................................................................................. 2
Chapter 1.............................................................................................................................................. 4
Matrimonial Property. Internal Law .................................................................................................... 4
1.1. General Issues............................................................................................................................................................................4
1.1.1. Sources ...............................................................................................................................................................................4
1.1.2. Historic development .......................................................................................................................................................4
1.1.3. Primary regime..................................................................................................................................................................5
1.1.4. Secondary regimes............................................................................................................................................................6
1.2. Types of Regimes ......................................................................................................................................................................7
1.2.1 Comments as to the primary regime...............................................................................................................................7
1.2.3. Marital settlements (contractual regimes) ..................................................................................................................12
1.3 Change of Matrimonial Property Regimes ..........................................................................................................................15
1.3.1 Principles ...........................................................................................................................................................................15
1.3.2. Amendment procedures .................................................................................................................................................15
1.4. Publication of the Regime......................................................................................................................................................16
1.4.1. Principles..........................................................................................................................................................................16
1.5 Administration of Estates ........................................................................................................................................................17
1.5.1 Under the regime provided by law (statutory regime)..............................................................................................17
1.5.2. Under marital settlements (contractual regimes).......................................................................................................18
1.5.3. Contracts between spouses during marriage ..............................................................................................................18
1.6. Dissolution, Liquidation and Division of the Matrimonial Property Regime...............................................................19
1.6.1. Following dissolution of the marital bond (divorce …)...........................................................................................19
1.6.2. Following the death of one of the spouses .................................................................................................................21
Chapter 2. ........................................................................................................................................... 23
Matrimonial property. Private International Law .............................................................................. 23
2.1. G eneral Remarks .....................................................................................................................................................................23
2.1.1.Sources...............................................................................................................................................................................23
2.1.2. Historic development .....................................................................................................................................................24
2.1.3. General notions of private international law..............................................................................................................26
2.1.4. General problems of private international law..........................................................................................................27
2.2. International Jurisdiction over Matrimonial Property Issues (jurisdiction of court and of other authorities).........28
2.2.1. The general rules on international jurisdiction as applied to matrimonial property regimes. ...........................28
2.2.2. Rules on international jurisdiction particular to matrimonial property law issues..............................................30
2.3. Law Applicable to the Matrimonial Property Regime ......................................................................................................31
2.3.1. Determination of the law applicable to the matrimonial property regime............................................................31
2.3.2 . Scope of the law applicable to the matrimonial property regime..........................................................................33
2.3.3. Law applicable in case of changes in the matrimonial property regime. ..............................................................37
2.3.4. Law applicable to the publication of the matrimonial property regime................................................................39
2.4. Recognition and Enforcement of Foreign Court Decisions and ‘ Public’ Acts in respect of Matrimonial Property
Regimes ............................................................................................................................................................................................40
2.4.1. The general rules on the effectiveness of foreign "public" acts and court decisions as applied in the area of
matrimonial property regimes ..................................................................................................................................................40
2.4.2. Rules on the effectiveness of foreign "public" and private acts and court decisions specific to the area of
matrimonial property regime...................................................................................................................................................41
2.4.3. Practical significance of the rules set out under 2.4.1.- 2.4.2. ................................................................................43
Chapter 3. ........................................................................................................................................... 44
Unmarried Couples. Internal Law...................................................................................................... 44
3.1 Sources of the law on unmarried couples .............................................................................................................................44
3.2 Historic development of the law on unmarried couples ....................................................................................................45
3.3 The legal character of relations other than traditional marriage .......................................................................................45
3.4 Property in relations other than traditional marriage..........................................................................................................46
3.4.1. Attribution of property between cohabitants and assistance with household financial expenditure................46
3.4.2. The communal acquisitions regime.............................................................................................................................48

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3.4.3. Provision of labour between partners..........................................................................................................................49
3.5 Property issues in case of separation of unmarried couples ..............................................................................................49
3.5.1. The separation of the couple.........................................................................................................................................49
3.5.2. The effects of the separation upon the property of the members ...........................................................................50
If the cohabitants have children, similar application of art. 155, 4th paragraph, Italian civil code, which in the event
of separation of spouses attributes, in preference, the right to live in the family home to the spouse with care and
control of the children, has been advanced.................................................................................................................................50
3.6 Property issues in case a member of the unmarried couple dies ......................................................................................51
3.6.1 In relation to the surviving member ..............................................................................................................................51
3.6.2. Right of residence in the family home. .......................................................................................................................52
3.6.3. Compensation for damages due to the death of the more uxorio cohabitant by virtue of the unlawful act of a
third party....................................................................................................................................................................................52
Chapter 4. ........................................................................................................................................... 53
Unmarried Couples. Private International Law ................................................................................. 53
4.1. General issues of private international law. ........................................................................................................................53
4.1.1. Public policy. Characterization. ...................................................................................................................................53
4.1.2. Recognition of relationships between unmarried couples .......................................................................................54
4.1.3. Admissibility of the "celebration" of a same sex "marriage" (or other relationship)..........................................55
4.2. International jurisdiction. .......................................................................................................................................................55
4.2.1. Separation of unmarried couples. International jurisdiction. ..................................................................................55
4.2.2. Property aspects of the separation. International jurisdiction.................................................................................55
4.2.3. Relation between 4.2.1. and 4.2.2................................................................................................................................56
4.3. Applicable law .........................................................................................................................................................................56
4.3.1. Determination of the law applicable to the property regime ...................................................................................56
4.3.2. Scope of the applicable law ..........................................................................................................................................57
4.3.3. Applicable law and changes to the property regime.................................................................................................58
4.3.4. Law applicable to publication of the property regime of an unmarried couple ...................................................59
4.4. Recognition and enforcement of foreign court decisions and "public" acts in respect of property of unmarried
couples ..............................................................................................................................................................................................59
4.4.1. The general rules on the effectiveness of foreign "public" acts and court decisions as applied in the area of
property of unmarried couples .................................................................................................................................................59
4.4.2. Rules on the effectiveness of foreign "public" and private acts and court decisions specific to the area of
property of unmarried couples .................................................................................................................................................59
4.4.3. Practical significance of the rules set out under 4.4.1- 4.4.2...................................................................................60

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C HAPTER 1
MATRIMONIAL PROPERTY. INTERNAL LAW

1.1. GENERAL ISSUES

1.1.1. Sources

1.1.1.1. Description of the general legislative sources (including rules laid down by governmental
authorities, e.g. ministerial decrees, etc.);
Regulations governing matrimonial property issues are contained in part VI of section VI of book I
of the Italian civil code (articles 159-219), entitled “matrimonial property law”. To give a complete
picture of matrimonial property issues, reference must also be made to regulations located in other
parts of the Italian civil code or in special laws. In particular, articles 143, 3rd paragraph and 147 of
the civil code, which lay down the absolute duty of both spouses to contribute to the needs of the
family and article 156, which lays down rules governing the effects, in terms of property, of the
pronouncement of legal separation, should be mentioned. Finally, with regard to the effects, in
terms of property, resulting from marriage dissolution, reference must be made to articles 5, 6 and 8
of law no. 898 of 1 December 1970. 1

1.1.1.2. Description of principal sources in court decisions and in customary law


The work of interpreting these regulations by jurisprudence is of particular importance, given the
sometimes essential nature of the latter, and the principal guidelines will be illustrated, from time to
time, in relation to individual problems examined.

1.1.1.3. Description of any law reforms which are under way


No major reforms of particular relevance are under way.

1.1.2. Historic development

1.1.2.1. Stages of the historic development


The current regime is the result of numerous amendments to the Italian civil code of 1942 by the
family law reform,2 which promoted egalitarianism in matrimonial relations, abandoning the
traditional position of supremacy occupied by the husband, placing greater emphasis on the
principle of solidarity within the family and allowing both spouses to be involved in dividing the
material possessions acquired during the marriage.

1
This relates to the law entitled Rules governing marriage dissolution, in turn amended by law no. 74 of 6 March 1987,
(in GU [official publication containing the text of new laws], no. 58 of 11 March 1987).
2
Introduced with law no. 151 of 19 May 1975, – Family law reform.

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1.1.2.2. Actual situation (since the last law reform)
The principal amendments, in this respect, are constituted by the replacement of the separate
property regime with that of the communal property regime as the statutory matrimonial property
regime, which applies in the absence of any agreement to the contrary stipulated in accordance with
art. 162 (art. 159 c.c. [Italian civil code]); by other regulations governing marriage contracts, or
agreements that allow for the integration or amendment of the main regimes. In particular, these can
be stipulated or amended at any time. The ‘fondo patrimoniale’ [matrimonial property fund] has
been introduced instead of the ‘patrimonio familiare’ [family estate] and the ante nuptial settlement
in trust has been abolished i.e. property introduced by the wife to support the financial burdens of
the marriage and the invalidity of any agreement “that, in any way, tends towards the constitution of
property as a dowry” (art. 166 c.c.) has been sanctioned.

1.1.3. Primary regime


Rules applied in a consistent manner and coexisting with the statutory matrimonial regime or with
the regime pre-selected by the spouses are laid down by provisions according to which each of the
spouses is obliged to contribute to the needs of the family (art. 143, 3rd paragraph, c.c.) and to
maintain, instruct and educate the children (articles 147 and 148 c.c.) according to their own assets
and their own capacity for professional or domestic work.
This absolute duty that derives from marriage constitutes the factor around which the primary
regime revolves, and for which there is, on the other hand, no direct and explicit regulation. The
primary regime guarantees that both the spouses share the financial burden of running the family.
The contribution that each one is obliged to make is fixed in relation, on the one hand, to their
immovable and movable property assets, and on the other, to their capacity for work, both inside
and outside of the home.
Regulatory provisions stress the importance of the implementation of the principle of equality
between the spouses, given that value is attributed to housework, usually carried out by the wife,
who in fulfilling her obligation to contribute is then entitled to expect a corresponding contribution,
of a financial nature, from the husband.

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1.1.4. Secondary regimes

1.1.4.1. Existence or not of special rules on matrimonial property regimes

1.1.4.2. Notion of 'matrimonial property regime': which issues are covered by this notion, provided
the notion exists?
Alongside regulations mapping out the primary matrimonial property regime, there is a body of
provisions governing matrimonial property issues emanating from either a legal or voluntary
source.
Reference to the secondary regime amounts to indicating the body of regulations that determine
special legal conditions for property rights acquired by persons joined by a matrimonial bond. It
governs the regime of acquisitions made by spouses individually or jointly, the purpose for which
the goods acquired are intended, administration and acts of disposal of same, responsibilities for
obligations contracted by spouses, effects on matrimonial property subsequent to legal separation,
to marriage dissolution, or to events such as judicial restraint or bankruptcy of one of the spouses.

1.1.4.3. Lega l 'matrimonial property regime' (in case a regime is foreseen by law when spouses have
not entered into a marriage contract)
The statutory matrimonial property regime, which applies in the event of failure to select an
alternative regime on the part of the spouses (art. 159 c.c.), is constituted, subsequent to the family
law reform of 1975, by the communal property regime (articles 177 -197 c.c.).

1.1.4.4. Marriage contracts. Allowed or not? Frequently made, or exceptional phenomenon?


Advantages and disadvantages?
Agreements relating to matrimonial property issues are permitted.

1.1.4.5. Specific matrimonial property regimes regulated by law that can be chosen by the spouses
The spouses may, at any time, rule out the application of this regime in favour of adopting, by
means of a marriage contract, a different general regime, such as the separate or communal property
regime, or by adopting a particular regime, solely for application with regard to certain
predetermined property, such as the ‘fondo patrimoniale’ [matrimonial property fund], that has to
coexist with one of the aforementioned regimes.
The separate property regime is frequently selected and this can appear on the marriage certificate,
together with the ‘fondo patrimoniale’. Contractual communal property regimes are rarer and are
used, for example, to render property acquired during any period of living together prior to the
marriage, communal property. The separate property regime is also the subsidiary statutory regime
that is automatically applied in the event of marriage contracted with an individual who is subject to
bankruptcy proceedings or when communal property is dissolved, pending marriage, for some legal

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or judicial reasons, such as bankruptcy, legal separation or legal separation of property (art. 191
c.c.).

1.1.4.6. Whether the matrimonial property regime can change or not during marriage
See sub-clause 1.1.4.5.

1.1.4.7. Particularities of the national system (e.g. special regimes allowed locally)
One problem that has arisen relates to the possibility of adopting atypical or unnamed matrimonial
property regimes. Theory would have it that the spouses’ autonomy may be exercised not only in
the choice made between typical statutory regimes, but also in the determination of an alternative
regime, as long as this adheres to certain restrictions that will be illustrated below (art. 160 c.c.), and
provided that the related content is identified in concrete terms and not by means of generic
reference to sources of other regulations or uses (art. 161 c.c.).
This right does not, however, have any great practical implication either in respect of the existence
of constraints and binding regulations, since these are easily comparable with a contract whose
content is exorbitant in comparison with typical models; or for the provision made, amongst typical
models, for contractual communal property, which lends itself to absorbing many of the possible
amendments to regimes for which provisions have already been made.

1.2. TYPES OF REGIMES

1.2.1 Comments as to the primary regime


The primary regime is defined solely by the regulations obliging each of the spouses to contribute to
the needs of the family and to maintain, educate and instruct the children (articles 143, 3rd
paragraph, 147 and 148 c.c.), as well as by art. 160 c.c., according to which, the spouses cannot
agree to waive the effects of marriage laws. The location of the last regulation in the section
dedicated to rules governing the matrimonial property regime determines the existence of
restrictions over the free exercise of the spouses’ private autonomy, the latter being obliged to
respect, in choosing a contractual regime, the specific constraints provided for by the law on
marriage contracts.
The obligation to contribute to the needs of the family is considered to be binding in relations
between spouses. Another problem is that of establishing the external relevance of the primary
regime, or else, that of the configuration of the so-called external power of the spouse, to act alone
to further the interests of the family by also obligating the other spouse in respect of matrimonial
property. Initial jurisprudential guidance refuting, in applying general principles, the husband’s

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liability (generally speaking) for debts contracted by the wife in the interest of the family has, in
part, been superseded. And so, on the basis of articles 143, 2nd paragraph, and 147 c.c., joint and
several liability of the spouses, under the separate property regime, for debts incurred to meet a
primary family need, irrespective of which of the spouses personally contracted the obligation, has
been confirmed. 3
Provision has also been made for some means of resolving failure to meet the obligation to
contribute. In the event of unjustified estrangement from the family home, the judge may order the
sequestration of the obligated party’s property, in the amount necessary to enable the duty to be
fulfilled (art. 146, 3rd paragraph, c.c.); in the event of failure to fulfil the obligation to maintain,
educate and instruct offsprin g, the judge may arrange for a proportion of the obligated party’s
income to be deducted and paid to the other spouse or to whoever is meeting these expenses (art.
148, 2nd paragraph, c.c.).
The statutory matrimonial property regime is constituted by the communal property regime
governed by articles 177-197 c.c. The applicable regulations are aimed at regulating the subject of
communal property (articles 177-179), administration of communal (articles 180-184) and personal
property (art. 185), liability for the joint (art. 186 and 190) and personal obligations of each of the
spouses (articles 187-189), dissolution of communal property and the liquidation of communal
assets (articles 191-197).
The description of the content of the applicable regime, failing any other agreement, requires
property relating to the spouses to be divided into three categories:
a) property coming under immediate joint ownership;
b) personal property;
c) property that is subject to the so-called ‘comunione de residuo’ [residual communal property],
that will become part of the joint estate at a later date, or else will become part of the communal
property providing that it exists and has not been consumed at the time of dissolution.

a) Property coming under immediate joint ownership is accounted for by property acquired by the
spouses, together or separately, during the statutory regime, companies managed by both spouses

3
Cass. [Appeal court], 25 July 1992, no. 8995, in Giur. it., 1993, I, 1, c. 1512, with note by A.M. M USY, The household
goes to the dentist. The case rel ated to the cost of dental treatment for the wife and children. A decision had previously
been taken to the contrary Cass., 18 June 1990, no. 6118, in Giur. it., 1991, I, 1, 1052 with note by P. MARTUCCI in a
case concerning the purchase of furniture by the husband alone. The substance of the jurisprudence had admitted the
external representative validation of one of the spouses for obligations contracted in the interest of the family App.
Perugia, 3 April 1987, in Dir. fam. pers., 1987, I, 662.

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and formed after the marriage [art. 177, point a) and point d)], and growth in value and profits of
companies belonging to one of the spouses prior to the marriage but then managed by both spouses
(art. 177, 2nd paragraph). It is necessary, in order to concretely identify the subject of the immediate
joint ownership, to specify the concept of purchases made during the communal property regime
referred to in art. 177, point a).
One initial problem relates to cases of gradual formation, when the various components are realised,
in part, prior to the institution of the statutory regime, and, in part, subsequent to institution of said
regime. This is the case with acquisitive prescription maturing after the start of the statutory regime,
but founded on prior ownership; with rights acquired on the basis of a final contract stipulated in
fulfilment of the obligations of a preliminary contract and with rights that are subject to time limit
or to a condition precedent. The response to the problem given by interpreters looks to the time
when the fundamental component of the purchase in question was acquired; or else, for example,
the conclusion of the time prescribed for the acquisitive prescription or the stipulation of the final
contract; whilst, for cases conditioned by, or subject to, a time limit, this is taken as the time when
the contract was concluded. A second problem relates to the title on the basis of which the
acquisition is made. The fact that nothing is specified by art. 177, point a) should lead us to
understand the nature of any acquisition irrespective of its title, whether original or derivative.
Acquisitions made by virtue of invention or occupation, but not those that are the fruit of one of the
spouses’ individual activity as specified, are deemed to be jointly owned. The most controversial
hypothesis, however, concerns accession and, in particular, the case of the cons truction built on land
belonging exclusively to one of the spouses. Notwithstanding the contrary opinion of doctrine and
jurisprudence on this matter, that insists on the new property’s autonomous nature, such as to result
in the latter being categorised as an acquisition, jurisprudence on legitimacy considers the rule of
attraction of ownership of the building to prevail over that of the land, referred to in art. 934 c.c. for
its general scope, whilst the provision of art. 177, point a) would not be valid in integrating one of
the derogations of said rule subject to the same regulation. 4
Another aspect that must be specified relates to the subject of the acquisition i.e. the question is
asked, in particular, whether in addition to right of ownership or other indefeasible right over a
property, the joint purchase may operate also with regard to personal rights. Notwithstanding the
fact that the prevailing doctrine is favourable, considering that the purchase always relates to the
purchase of rights, whether secured or not, and not the tangible property that constitutes the subject

4
Cass., 11 June 1991, no. 6622, in Foro it., 1992, c. 1854.

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of the right, jurisprudence of legitimacy once again excludes personal rights from being subject to
joint ownership, even if instrumental to the acquisition of a res (as with the rig ht deriving from the
stipulation of a preliminary contract). 5
b) The property listed by art. 179 c.c. is personal and, therefore, exempt from rules governing
communal property, by virtue of the time or title of the acquisition, its designated use or the fact
that it is a replacement for other personal property. By virtue of the time when the property was
purchased, property belonging to the spouses prior to the marriage, or at any rate prior to the
institution of the communal property regime, if this was subsequent to the marriage (art. 179, point
a) is personal property. The title of acquisitions relating to property acquired as a gift or through
inheritance is personal, unless the instrument expressly attributes the latter to statutory communal
property (art. 179, point b) and the same is also true with regard to property due by way of
compensation for damage as well as pensions appertaining to partial, or total, incapacity for work
(art. 179, point e). By virtue of their intended use, property and ancillary items that are strictly for
personal use are deemed to be personal property (art. 179, point c), such as clothes, jewellery not
representing a form of investment, books, objects used to perform sporting or recreational activities
etc. and property that is instrumental to the performance of an occupation (art. 179, point d), such as
dental or medical apparatus, the premises on which the activity is carried out together with fixtures
and fittings, excluding capital goods for company business where the compa ny forms part of
deferred communal property. On the basis of the replacement function of the acquisition, property
acquired using the transfer price of personal property or by virtue of the exchange of same (art. 179,
point f) is personal property. In this last case, however, because the new property may continue to
be of a personal nature it is necessary that the replacement is declared in the deed of purchase by the
person making the purchase; although the other spouse will also have the opportunity to supply
proof to the contrary, by obtaining, to this end, a ‘sentenza di accertamento’ [assessment ruling].
The second paragraph of art. 179 contains a further provision relating to the case of the purchase of
registered immovable or movable property, the exc lusion of which from communal property
depends on the personal or professional designated use or on the replacement function in respect of
personal property. In these cases, it is necessary for the other spouse to participate in the deed of
purchase and for said deed to result in the property being excluded from communal property.
According to a jurisprudential guideline to the contrary, it is, generally speaking, by virtue of the
mechanism described above, possible to prevent an item from being classed as communal property
5
Cass., 23 July 1987, no. 6424, in Giust. civ., 1988, I, p. 459; Cass. 11 September 1991, no. 9513, in Diritto e giustizia,
1992, p. 624.

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in the absence of the aforementioned conditions because a purchase of a personal nature is being
made. In this case, the spouse’s declaration would be by way of an announcement and would be
aimed at preventing the production of the legal effect of purchase under joint ownership (so-called
refusal of joint ownership). 6
c) The fruits of personal property and income from each of the spouses’ individual activities [art.
177, point b and point c.)], companies set up for one spouse as sole proprietor, if formed subsequent
to the marriage, and growth in value of companies, even if these were formed prior to the marriage
(art. 178) do, in fact, form part of the de residuo communal property. On the whole the subject of
differed communal property is, therefore, constituted by income deriving from personal capital,
from work or from company business. Prevailing doctrine and jurisprudence deem that the spouse
who is the beneficiary of same is entirely at liberty to freely dispose of these types of incom e, once
the obligation to contribute has been fulfilled. Another part of the doctrine considers, on the
contrary, that some form of control over the actions of the other spouse, implemented by means of
ordinary supervisory instruments existing with regard to civil liability, is admissible when damages
are incurred, whether or not these are malicious; the reasonable expectation relating to a determined
amount of property and money that will come to form a part of the deferred communal property.
Partial affirmation, in this respect, comes from a recent isolated judgement given by the Corte di
cassazione [appeal court], which laid down, in proceedings relating to definition of the extent of a
maintenance award subsequent to separation, that, once the existence of revenue from a spouse’s
individual activity has been proven, it is up to the latter to prove that said revenue has been
consumed either in meeting the needs of the family or for investments classed as communal
property. All income received and receivable in respect of which the proprietor is unable to supply
this proof would, in fact, be subject of de residuo communal property. 7
With regard to matrimonial property liability under the communal property regime, it is necessary
to distinguish between communal property creditors and each spouse’s personal property creditors.
Communal property is, in fact, intended by the legislator to satisfy, as a priority, joint obligations.
These are considered to be those listed by art. 186. The most important categories are constituted by
all obligations contracted jointly by spouses and also by those undertaken by spouses individually,

6
Cf. Cass., 2 June 1989, no. 2688, in Foro it., 1990, I, c. 607; Cass., 18 May 1994, no. 4887, in Giur. it., 1995, I, 1, c.
1066. Contra, Trib. Parma [Court of Parma] January 1994, in Fam. e dir., 1994, p. 310; Trib. Piacenza, 9 April 1991, in
Riv. notar., 1993, p. 120.
7
Cass., 10 October 1996, no. 8865, in Corr. giur., 1997, p. 36.

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in order to maintain the family and to educate and instruct children and, more generally speaking, in
the interest of the family.
In addition, all obligations deriving from administrative instruments for communal property
legitimately constituted by each of the spouses are joint obligations, in short, burdens and
obligations relating to communal property at the time when they were purchase d. These obligations
must be satisfied by means of property from the joint estate, communal property creditors being
entitled to lay claim to the latter in precedence over others, if unsecured (art. 189, 2nd paragraph). A
subsidiary liability still exists in respect of each of the spouses’ personal property when the
communal property is not sufficient to satisfy the debts for which it is liable. Each spouse must
meet common obligations with their own personal property in the amount of half of the debt (art.
190). This limitation, however, is deemed only to operate in favour of the spouse that did not
personally contract the obligation and may not, on the other hand, operate for the spouse who
contracted the obligation – or for both, if the obligation was contracted jointly – insofar as it is
incompatible with general regulations governing property liability laid down by art. 2740 c.c.,
according to which the debtor meets the obligations with all his/her present and future property.
With regard to personal obligations, such as, for example, those contracted prior to the marriage
(art. 187), those encumbering property gifts or property acquired via inheritance by only one of the
spouses (art. 188), or those incurred by spouses for the fulfilment of extraordinary administrative
acts without the consent of the other spouse (art. 189, 1st paragraph), spouses shall, instead, respond
as a priority with their own personal property; but, in the event of incapacity, provision has been
made for the possibility of seizure of the communal property in the amount corresponding to the
value of the obligated spouse’s share (art. 189).

1.2.3. Marital settlements (contractual regimes)


1.2.3.1. Typical contractual regimes are a) separate property; b) matrimonial property fund; c)
communal property contract.

a) Under the separate property regime (articles 215-219 c.c.) each spouse retains exclusive title to
property acquired during the marriage. Nevertheless, this can also be considered as a real and
proper matrimonial property, not a non-regime, due to the applicability of some provisions that, in
part, repeal common law. By force of the latter, the constraint upon the spouse determines a
particular connotation of the rights of each spouse. These relate to the administration and enjoyment
of personal property (see below, § 5.2) and evidence of ownership of same. In respect of the latter,

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 12


art. 219 c.c. does, in fact, lay down a presumption of co-ownership in equal measures of that
property for which a spouse is unable to supply proof (which can be supplied using any means) of
exclusive ownership. Failure to prove ownership on the part of the claimant spouse does not,
therefore, involve submission, but rather acknowledgement of the application within the bounds of
co-ownership.
b) The matrimonial property fund (articles 167-171 c.c.) – which has replaced the institution of the
family estate – involves the designated use of some property (exclusively registered movable and
immovable property and instruments of credit registered via annotation of the obligation) to satisfy
the needs of the family. The fund may be set up by the spouses, or else by a third party, possibly
even by will (art. 167). Property forming part of the fund is normally owned by the spouses but the
third party may reserve ownership in the instrument of constitution or else attribute ownership to
just one of the spouses (art. 168, 1st paragraph). The application of property to the matrimonial
property fund determines the creation of a double obligation i.e. of internal relevance, with regard to
the right to dispose of, and enjoy, the property on the part of the spouses who own it; of external
relevance, with regard to the option for creditors to lay claims to said property. With regard to the
former, provision has been made so that the fruits of the property constituting the matrimonial
property fund are used for the needs of the family (art. 168, 2nd paragraph). With regard to
restrictions on the right to dispose of the property, property forming part of the fund cannot be
transferred, mortgaged, lodged as security or bound in any way without the approval of both
spouses and, if there are children who are minors, with authorisation from a judge which may only
be granted in cases of clear necessity or utility (art. 169). The designated use assigned to the fund’s
property also has an impact on grounds for discontinuance of same i.e. in particular, although the
latter normally coincides with the annulment, dissolution or discontinuance of the civil effects of
the marriage, there is, however, a provision, should there be children who are minors, for the
discontinuance of the fund to be postponed until the children reach the age of majority. With regard
to the second instance, the law provides some limits on the capacity for expropriation of the fund’s
property and its fruits i.e. creditors cannot lay claim to said property unless the claim is in relation
to debts incurred in order to meet the needs of the family or debts that were not known to be
extraneous to this purpose (art. 170 c.c.).
c) Contractual communal property describes the regime implemented by means of amendments to
the statutory regime, both in the sense of widening or restricting its scope (articles 210-211 c.c.). In
addition to adhering to general regulations on marriage contracts, the extent to which the statutory

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 13


regime can be amended is further restricted. One initial restriction comes from the fact that some
property is prohibited from inclusion in communal property, so-called highly personal property i.e.
those listed in points c, d, and e of art. 179 c.c., or else property for strictly personal use, property
used to conduct a professional occupation and property obtained by way of compensation for
damages or for the total or partial loss of the capacity to work. In addition, regulations governing
statutory communal property relating to the administration of property and the equality of shares are
binding but are, however, limited to property that would also form part of the statutory communal
property (art. 210). Another provision is designed to protect the interests of the personal creditors of
each of the spouses, who may be prejudiced by the classification of property to which they had
exclusive title at the time when the obligation was entered into, as communal property; whilst,
under classification as communal property, said property would be designated to satisfy, as a
priority, joint obligations. Art. 211 c.c. does, however, lay down that communal property must meet
the obligations contracted by one of the spouses prior to the marriage in the amount corresponding
to the value of the property owned by the latter prior to the marriage and classified as forming part
of the communal property by means of contractual choice. Notwithstanding the literal formulation
of the regulation, this form of protection is necessarily deemed to cover all personal creditors and to
relate to all property classed as communal property by virtue of a contract subsequent to the
instrument setting up the obligation.
1.2.3.2. Should the spouses wish to avoid application of the statutory matrimonial regime, they can
adopt one of the typical contractual matrimonial property regimes and also, within certain limits,
those that are deemed to be atypical (see above, § 1.1.4.5 and subsequent articles), provided that
these adhere, in addition to general regulations governing contracts, to specific limits laid down for
marriage contracts. They may not, then, repeal the rights and obligations resulting from the
marriage (art. 160 c.c.); nor refer per relationem to foreign uses or laws in order to govern their
relations, being obliged, on the contrary, to list, in concrete terms, the contents of the regime that
they wish to adopt (art. 161 c.c.). The regulation sanctioning the invalidity of “any contract that in
any way tends towards the constitution of property as a dowry” (art. 166 bis) i.e. with the abolition
of the dowry regime by implementation of the family law reform of 1975, the legislator wished to
sanction all transactions that may, even indirectly, be construed as the formation of a similar
regime. From this can be deduced the invalidity of contracts aimed, for example, at conferring upon
one spouse exclusive power of administration and enjoyment of the other’s property.

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The law lays down some requirements as to form and to the capacity of the parties when it comes to
stipulating marriage contracts. With regard to form, the solemn form of the duly authenticated
instrument is required, subject to the penalty of invalidity (art. 162 c.c.), as well as the presence of
two witnesses, that cannot be refused by the spouses even with the approval of the notary drafting
the deeds (art. 48, notarial law). One exception to the rule of notarial competence is the choice of
the separate property regime which can be instituted in the marriage certificate. Approval is then
demonstrated during the act of celebration before the celebrant. Alternatively, with regard to the
matrimonial property fund, assuming that the fund is set up by means of the allocation of property
on the part of a third party, the form required for the acceptance of both the spouses is that of the
duly authenticated public instrument. This acceptance is not necessary if the property is conferred
by means of a will, insofar as the legacy does not need to be accepted (unless there is the option to
refuse it).
Both minors admissible for marriage (over sixteen but not yet having been invested with legal
capacity), with the assistance of legal representatives; or disabled persons assisted by a guardian,
are capable of stipulating marriage contracts, without the need for legal authorisation, usually
required for instruments outside the scope of ordinary administration.

1.3 CHANGE OF M ATRIMONIAL PROPERTY REGIMES

1.3.1 Principles
Marriage contracts can be stipulated and amended at any time (art. 162, 3rd paragraph, c.c.) i.e.
subsequent to the immutability of the regime provided for by the 1942 Italian civil code, the 1975
reform brought in the possibility of change by way of prior legal authorisation and finally, law no.
142 of 10 April 1981, removed the need for legal authorisation.

1.3.2. Amendment procedures


The freedom to stipulate marriage contracts at any time also includes that of amending contracts
that have already been adopted during the marriage and opting for a different regime. Art. 163 c.c.
lays down rules governing the amendment of contracts which are, moreover, already inferable from
general principles i.e. amendment requires the consent of all the original parties or their heirs and
must be given by means of a duly authenticated document.

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1.4. PUBLICATION OF THE REGIME

1.4.1. Principles
There is a system for publishing marriage contracts and their amendments that is governed by
articles 162-163 c.c. For the statutory regime, or that of communal property, there is a form of so-
called negative publication i.e. because this is applied automatically unless the spouses choose
otherwise and cognisance of the same is guaranteed by said publication of the marriage per se by
means of registration or transcription in the register of births, marriages and deaths, provided that
the latter does not mention the adoption of a different regime.
1.4.2. Modalities for publication
Publication of marriage contracts and subsequent amendments is assured by means of their
annotation in the register of births, marriages and deaths in the margin of the marriage certificate
(art. 162 c.c., last paragraph and art. 163 c.c., 3rd paragraph). The annotation relates, in particular,
to the date of the contract, the notary drafting the contract, general details of the contracting parties;
factors that refer back to the contents of the contract. Only the choice of the separate property
regime is noted directly in the register of births, marriages and deaths, when this has been brought
into effect during the celebration of the marriage. Provision is also made for rulings pronouncing
legal separation of property (art. 193 c.c. last paragraph) to be noted.
The notary drafting the contract is obliged to request that the contract be noted; whilst, with regard
to the choice of the separate property regime in the marriage certificate, it is the official that
transcribes the latter in order to provide for the annotation directly. On the other hand, it is the
responsibility of the clerk to the court where the judge pronounces the separate property ruling to
send the latter to the Registrar’s offices for the annotation to be made. The register containing the
annotation is that of the commune in which the marriage certificate was transcribed or registered.
In the absence of annotation, the contract or its amendments cannot be applied to third parties. It
then follows that the third party may, in his/her own interest, impose the effects of the statutory
regime or the previous contractual regime to any amendment.
In addition to annotation, provision is made for the transcription of a series of instruments to cover
immovable property. These relate to the constitution of the matrimonial property fund, to contracts
that exclude communal property, to acts and provisions that dissolve said communal property, to
deeds of purchase of personal property in accordance with points c, d, e and f of art. 179 (art. 2647
c.c.); and, on the basis of the reference made by art. 2685 c.c., to the same instruments covering
registered movable property.

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1.5 ADMINISTRATION OF ESTATES

1.5.1 Under the regime provided by law (statutory regime)


The administration of communal property is regulated by art. 180 c.c., which provides for a rule of
joint administration for instruments not included in ordinary administration, as well as for
instruments by virtue of which personal rights of enjoyment are acquired, whilst both spouses may
proceed individually with ordinary administrative instruments. Provision is made for the possibility
of either a special proxy to be granted by one spouse to the other for individual instruments or else
for instruments required for the operation of a company; or, in the event of impediment or absence
of one of the spouses, of the granting of a lega l authorisation to proceed with the required
instruments for which the consent of the latter is required. Authorisation from the judge to proceed
with the instruments required in the interest of the family or the joint company may also be granted
in the event of refusal of one of the spouses. The criterion inspiring said legal decision can, in the
first instance, be clear utility with regard to the requirements of proper administration or, in the
second instance, right and proper need, the judge being unable to authorise instruments that are
merely useful against the will of one of the spouses. And finally, provision is made for the
possibility of excluding one of the spouses from the administration ex art. 183 c.c. in peremptory
cases listed by said regulation. This operates by law in the event of disqualification, whilst it may be
requested from the judge if one of the spouses is a minor, or is unable to administer (i.e., when said
conditions of impediment justifying legal authorisation to proceed with the individual instrument
are not of a permanent nature), or else in the event of poor administration (condition to be
understood in an objective sense, irrespective of guilt).
The sanctions provided for in the event of failure to observe the rule of joint administration differ
according to whether the instrument formulated by one of the spouses without the other’s consent,
relates to movable property, on the one hand, or immovable property or movable property registered
by the other spouse (art. 184 c.c.), on the other. In this second instance, the instrument can, in fact,
be cancelled but must be contested within one year of the date on which the spouse in question
became aware of said instrument and, at any rate, within one year of the transcription of same. On
the other hand, for instruments relating to movable property, there is only provision for internal
protection of a compensatory nature, or else the obligation of the spouse responsible for the drafting
of the instrument, to restore, at the request of the other spouse, the communal property to its original
state prior to drafting of the instrument or else to make payment of an equivalent sum.

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For each spouse’s personal property under the statutory communal property regime, art. 185 c.c.
refers to the regulation providing for the separation of property (see below, § 1.5.2).

1.5.2. Under marital settlements (contractual regimes)


a) Under the separate property regime, “each spouse has the enjoyment and administration of the
property to which he/she has exclusive title” (art. 217 c.c. 1st paragraph). There are, however,
regulations aimed at regulating, in partial derogation of common law, cases of interference on the
part of the spouses within the scope of the other’s property. On the subject of administration, art.
217, last paragraph, c.c. considers the case in which one of the spouses administers the other’s
property despite the latter’s objection. In this event, there are damages and loss of receipt of profits;
but, on the contrary, it can be deduced from this that, in the absence of objection, and although
conditions for management of others’ business are not present, the interference is not sanctioned. It
would appear, he/she should be treated in the same way as the spouse who administers with express
authorisation of the other, governed by art. 217 c.c., 2nd and 3rd paragraph. With regard to the
enjoyment of one spouse’s property by the other spouse, art. 218 c.c. imposes on the latter
obligations appertaining to a usufruct (and not those appertaining to any de facto beneficiary, to
whom rules governing possession of other people’s property apply i.e. art. 1148 ss. c.c.).
b) For the administration of property appertaining to the matrimonial property fund, art. 168, last
paragraph, c.c. refers to rules governing communal property, according to which both spouses are
absolute and equal administrators. In the event of deferred discontinuance of the fund due to the
existence of underage children, the judge may lay down rules for administration of the fund (art.
171, 2nd paragraph).
c) With regard to contractual communal property, the restrictions placed on amendments to the
rules of the statutory regime have already been mentioned with regard to the administration of
property. They are absolute, but limited to property which, per se, forms part of the communal
property governed by the Italian civil code (art. 210).

1.5.3. Contracts between spouses during marriage


1.5.3.1. Contracts of sale between spouses are admissible.
1.5.3.2. Subsequent to the declaration of the constitutional unlawfulness of art. 781 c.c.
(Constitutional court, 27 June 1973, no. 91), prohibiting disposals between spouses, gifts and other
property disposals between spouses are admissible.
1.5.3.3. In describing the communal property regime, the rules governing enterprises run by both
spouses under the communal property regime have already been illustrated. In this instance,

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companies for the purpose of running a business which were formed subsequent to the entry into
force of the statutory regime are classed as communal property; otherwise, only capital growth and
profits are classed as communal property, if the company was formed prior to said implementation
(art. 177 c.c., point d) and art. 177 c.c., 2nd paragraph). Now, according to prevailing interpretation,
rules governing communal property governed by the Italian civil code relating to companies
preclude the application of company regulations. Consequently, under the communal property
regime, spouses cannot form a company in order to run a business managed by both parties, unless
they exclude property designated for this purpose from said communal property. With regard to its
legal status, the conjugal business would take the form of a joint concern, rather than a company.
The rules applicable to companies run by both spouses, in relation to rules of administration and to
the regime of liability for obligations contracted during the running of the business, would,
therefore, be those relating to communal property, to the exclusion of company regulations.
According to another guideline, company regulations would be applicable to the running of a
business. A de facto company would, in fact, be created by the spouses. For other authors, spouses
under the communal property regime could also form a company that would automatically prevail
over rules governing communal property.
With regard to companies with share capital, both the formation of companies and the subsequent
acquisition of all the share capital by both spouses are deemed to be admissible.
There are no constraints regarding the creation of companies by spouses under the separate property
regime.
1.5.3.4. There are no limits regarding the stipulation of subordinate employment contracts between
spouses. There is, however, a residual implementing regulation, art. 230-bis dedicated to family
companies, that governs companies in which the spouse and other family members are involved,
when no other relationship can be configured (company, subordinate work relationship etc.).

1.6. DISSOLUTION , LIQUIDATION AND DIVISION OF THE M ATRIMONIAL PROPERTY REGIME

1.6.1. Following dissolution of the marital bond (divorce …)


1.6.1.1. An appropriate regulation governing the dissolution, liquidation and division of communal
matrimonial property is mainly provided for in respect of the statutory communal property regime
(articles 191-197). This covers reasons for dissolution of the communal property, that are of a
peremptory nature and relate to situations that are incompatible with the objectives upon which the
statutory regime is based. These are listed by art. 191 c.c. and can be placed in three categories: a)
automatic or legal reasons, such as a declaration of absence and presumed death of one of the

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spouses, the bankruptcy, annulment, dissolution or cessation of the civil effects of the marriage and
legal separation; b) legal reasons, indicated by the legal separation of property, pronounced by a
ruling; c) contractual reasons, or else contractual changes to the matrimonial property regime.
With regard to the legal separation of property, governed by art. 193 c.c., this presupposes the direct
application by one of the spouses to obtain from the judge a constitutive ruling resulting in
changeover to the separate property regime. The conditions under which the judge is permitted to
act are constituted by the disqualification or debarment of one of the spouses; poor administration
of the communal property; the risk that disorder in the affairs and administration of personal
property may prejudice the interests of the other spouse, the communal property or the family and
the violation of the obligation to contribute.
As can be seen from the above, the conditions for dissolution of communal property do not
necessarily coincide with the dissolution of the marriage subsequent to divorce or with annulment
of the same. In fact, the matrimonial bond may go on to survive the dissolution of communal
property (for example, when this is due to the bankruptcy of one of the spouses) and in this event,
the separate property regime will be applied.
Upon dissolution of communal property, understood as discontinuance of the statutory regime, there
follows the liquidation and division of communal matrimonial property. The first operation consists
of assessing the assets and liabilities, and during this phase repayments are made and refunds given
(art. 192 c.c.). Each spouse is obliged, on the one hand, to repay the sums that he/she has withdrawn
from communal property to meet personal needs, the value of property that has been seized by
personal creditors and property transferred without the consent of the other spouse, unless he/she
can prove, in this last instance, that the act was ultimately advantageous for the communal estate or
was used to meet the needs of the family. At the same time, each spouse is entitled to repayment of
personal amounts used for expenses and investments relating to communal property. If, once the
refunds and repayments have been made, one of the spouses proves to be a creditor, the latter is
entitled to withdraw a greater share of the communal property (in this order i.e. money, movable
property, immovable property) for a value equal to his/her own credit (art. 192 c.c., last paragraph).
Then, at the request of each of the spouses, the division phase may take place by means of dividing
the assets and liabilities equally (art. 194 c.c.). Movable property of a personal nature may be
withdrawn. In the event of doubt, the latter shall be presumed to be a part of the communal property
(art. 195 c.c.); or, if said property is no longer present as part of the communal property, it is
possible to repeat the value so that the loss is attributable to the other spouse (art. 196 c.c.). During

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this phase, the judge may be asked to constitute usufruct, in favour of the spouse e ntrusted with care
of the children, over part of the property owing to the other spouse (art. 194, 2nd paragraph), should
there be any danger that the latter may avoid the obligation of maintenance.
Conditions for discontinuance of the matrimonial property fund are laid down by art. 171. They
consist of the annulment, dissolution and cessation of the civil effects of the marriage. There is,
however, the rule, which has already been illustrated (see above, § 1.2.3.1, sub b), that involves
postponement of the discontinuance of the fund when there are underage children in the family.
With regard to rules governing the dissolution, a distinction is made according to whether or not
there are children. If there are no children, reference is made to the rules laid down for the
dissolution of statutory community property, applicable within the bounds of compatibility (art.
171, last paragraph). If there are children, the judge may assign them enjoyment or ownership of a
share of the fund’s property.
1.6.1.2. In the event of legal separation or discontinuance of the civil effects of the marriage,
irrespective of the matrimonial property regime applicable, some effects of a property-related nature
occur in the relations between the spouses. In particular, a maintenance grant may be awarded to a
spouse who is not in possession of adequate personal resources, such as to permit the latter to
maintain the standard of living enjoyed during the marriage. The house used as the family residence
may be assigned, irrespective of formal title, to one of the spouses, in preference the spouse to
whom the children have been entrusted. The spouse responsible for the separation is only entitled to
maintenance payments if there is a state of need.
Agreements by virtue of which the spouses govern their matrimonial property issues with a view to
separation or divorce are admissible with stringent limitations.

1.6.2. Following the death of one of the spouses


The death of one of the spouses involves the application of inheritance law. In the event of ab
intestato succession, the surviving spouse is reserved a share of the inheritance, the amount varying
according to the entitlement of other heirs. The spouse is also entitled to live in the family home and
use the furniture with which the latter is equipped (art. 540 c.c.). Spouses who are separated through
no fault of their own have the same inheritance rights as spouses who are not separated. Spouses
who are separated through fault of their own are entitled to an award from the inheritance if, at the
time when the inheritance procedure commenced, he/she was entitled to maintenance payments (art.
548 c.c.). Divorced spouses are entitled to an award from the inheritance, should they find
themselves in need, if there was a previous entitlement to an award (art. 9 bis, law no. 898 of 1

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December), in addition to the surviving dependant’s pension. If there is a surviving spouse with
claims on the pension, the ex spouse is only entitled to a proportion of same, as allocated by the
judge in consideration the length of the relationship (art. 9, l. 898/70).

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 22


CHAPTER 2.
MATRIMONIAL PROPERTY . P RIVATE INTERNATIONAL LAW

2.1. GENERAL R EMARKS


Firstly, it is necessary to specify whether or not some concepts, such as, for example, customary
law or case law, can be used in the same way in reference to Italian law.

2.1.1.Sources
2.1.1.1. Italy is not party to many International Conventions on this subject.
The Convention on the Recognition and Enforcement of Decisions Relating to Maintenance
Obligations (2 October 1973) should, however, be remembered. This Convention is expressly
referred to by art. 45 of law no. 218 of 1995. This regulation lays down that "Maintenance
obligations within the family shall, in any event, be regulated by the Hague Convention of 2
October 1973 on the law applicable to maintenance obligations, implemented with law no. 745 of
24 October 1980". In this way the scope of the law regulating matrimonial property issues was
reduced,8 in so far as the conflict settlement rules provided for by the Hague Convention also apply
to maintenance claims between spouses.

2.1.1.2. The main source of reference is currently law no. 218 of 31 May 1995, published in the
ordinary supplement of the ‘Gazzetta Ufficiale’ [official publication containing the text of new
laws] no. 68 of 3 June 1998, "Reform of the Italian system of private international law". 9 Art. 1 of
the law states that it "shall determine the scope of Italian jurisdiction, set out criteria for the
identification of applicable law and govern the effectiveness of foreign court decisions and acts".
Matrimonial property issues are governed by art. 30 of the law.

2.1.1.3. Custom has no role in this area. Jurisprudence is an important guide to interpretation. There
are not, however, many cases apperta ining to the subjects under analysis here.

2.1.1.4. In Italy, private international law reform is relatively recent. Although the doctrine has, in
part, criticised some aspects of the law, this has not resulted in any current plans for reform.

8
For which see sub 2.1.1.2.
9
Henceforth, the text will refer to this law as "reform law", "Italian law", "law 218/1995".

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 23


2.1.2. Historic development
2.1.2.1. Prior to the entry into force of law no. 218 of 1995, the system of private international law
was represented by ‘preleggi’ [preamble] to the Italian civil code and, more specifically, by articles
17–31.
Regulations in terms of jurisdiction and recognition of foreign court decisions and acts were
contained in the Italian code of civil procedure.
These regulations were repealed by the reform law. Matrimonial property issues, in particular, were
regulated by art. 19 of the ‘preleggi’. On the basis of this regulation, the national law of the husband
at the time when the marriage was celebrated was applied to matrimonial property issues. Spouses
were allowed to stipulate marriage contracts based on the new common national law.
The choice of the husband’s national law as the connecting factor, created doubts in terms of
constitutional legitimacy, mainly subsequent to Constitutional Court decision no. 71 of 5 March
1987. 10 Said ruling had sanctioned the unconstitutionality of art. 18 of the ‘preleggi’, relating to
personal relations between spouses, due to conflict with articles 3 and 29 of the Constitution, in the
section in which it lays down that, in the event of a lack of national law common to the spouses, the
national law of the hus band at the time when the marriage was celebrated would apply.
Soon after, the Constitutional court declared art. 20 of the ‘preleggi’,11 relating to relations between
parents and children, to be unconstitutional in the section in which said regulation gave priority to
the national law of the father, over that of the mother, in conflict with articles 3 and 29 of the
Constitution. Art. 19 is also based on a criterion that favours the husband over the wife. This
regulation would, however, certainly be declare d unconstitutional. The law to reform the Italian
system of private international law was, however, brought in prior to a ruling being made in this
respect. This law, as has already been ascertained, repealed the regulations contained in articles 17
to 31 of the ‘preleggi’ of the Italian civil law.

2.1.2.2. Matrimonial property issues are now governed by art. 30 of the reform law, which
constitutes the new regulation governing conflict on this issue.
And so, this regulation lays down that:
"1. Matrimonial property issues shall be governed by the law applicable to the spouses’ personal
relations. Spouses may, however, agree, in writing, that their matrimonial property issues be
governed by the law of the State of which at least one of them is a citizen or in which at least one of

10
Cost. court, 5 March 1987, no. 71, in ‘Gazzetta Ufficiale’, 1st special series, 1 March 1987, no. 11.
11
Cost. court, 10 December 1987, no. 477, in ‘Gazzetta Ufficiale’, 1st special series, 16 December 1987, no. 53.

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them resides.
2. The spouses’ agreement on the applicable law shall be valid if considered so by the law selected
or by that of the place in which the agreement was stipulated.
3. Matrimonial property regimes governed by a foreign law shall be applicable to third parties only
if the latter were aware of said law or were ignorant of it due to their own negligence. With regard
to rights in rem in immovable property, applicability is limited to cases in which the forms of
publication pre scribed by the law of the State in which the property is located have been respected".
And so, art. 30 refers to the law applicable to personal relations.
Personal relations are governed by art. 29. This regulation lays down that: "1. Personal relations
between spouses shall be governed by the common national law.
2. Personal relations between spouses with different citizenships, or with several common
citizenships, shall be governed by the law of the State in which the married life was primarily
located".
Transitional questions are dealt with by art. 72 of the reform law. This regulation lays down that:
"1. This law shall apply to all judgements initiated after its entry into force, without prejudice to
applicability, to situations concluded prior to this date, of private international law regulations
heretofore in force. 2. Judgements pending shall be decided upon by the Italian judge if the events
and regulations that determine the jurisdiction occur during the course of the proceedings".
It is not, however, easy to establish what should be understood by a situation that has been
“concluded”.
Certainly, a situation that has already been regulated by means of an Italian court decision or a
foreign court decision acknowledged in Italy 12, can be said to have been concluded.
Some problems may arise where the document was drafted prior to the new law coming into force,
but where the effects of said document are still in existence. In this event it would seem preferable
to consider that the question of validity of the act should be resolved on the basis of the law
heretofore in force, whilst the question of its effects should be governed by the new law.

2.1.2.3. Under private international law, matrimonial property issues are governed by art. 30 of the
reform law which came into force on 1 September 1995. This law has not, as yet, been subject to
any amendment.

12
The ‘Corte di Cassazione’ [appeal court] has had the opportunity to state that only those situations definitively
assessed in court or the effects of which have, in any event, been fully realised, can be said to have been "concluded". In
this respect ‘Cassazione Civile’, section. I, 12 November 1999, no. 12538, in Giust. civ . 2000, I, 1719.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 25


2.1.3. General notions of private international law.
2.1.3.1. Italian law does not specifically resolve the problem of qualification. Prevailing doctrine
and jurisprudential interpretation deem that qualification must be made according to lex fori. 13
Naturally, it is necessary to consider the function of conflict regulations. The latter are set out by the
legislator for purposes of openness and coordination with external legal values with respect to the
way in which courts are organised.
This determines the need for qualification to be independent of the substantive law of the court.
More specifically, the basic concepts used to define the meaning and the scope of conflict
regulations must be taken from the lex fori.
This interpretation must, however, be quite flexible, in consideration of the extraneous nature of the
cases being judged. Subsequently, once Italian conflict regulations have identified the foreign law
applicable, it will be necessary to check to see whether the question is qualified in the same way by
the foreign law.

2.1.3.2.The question of referral is governed by art.. 13 of the reform law. This law states that: "1.
When a foreign law is referred to in subsequent articles, consideration shall be given to the referral
operated by foreign private international law to the law of another State:
a) if the law of this State accepts the referral;
b) if this relates to a referral to Italian law".
The same art. 13, no. 2, states that referral shall be prohibited:
"a) in cases in which the provisions of this law render the foreign law applicable on the basis of the
choice made in this respect by the interested parties;
b) with regard to provisions concerning the form of the documents;
c) in relation to the provisions of part XI of this Section". Part XI of Section III relates to non-
contractual obligations. In addition, with reference to provisions relating to filiation, the regulations
lay down that "referral is considered only if the latter leads to the application of a law that enables
filiation to be established".
The last part of art. 13 refers to issues governed by international conventions. It states that in this
event "with regard to referral, the solution adopted by the convention shall always be followed".
Acceptance of the referral (entirely prohibited on the basis of the regulations in force heretofore ex
art. 30 of the ‘preleggi’) also involves interference with the issue of qualification. In fact, the

13
See, in this respect, amongst others, MOSCONI, Private and procedural international law, General section and
contracts, Turin, 2001, p. 125 ss.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 26


foreign private international law regulations must be interpreted, and indeed qualified, according to
foreign law, also on the basis of what is laid down by art. 15 of law no. 218 of 1995.
This regulation states that "The foreign law shall be applied according to its own criteria for
interpretation and application over time". And so, cases where qualification according to the lex fori
does not correspond to qualification according to the foreign law referred to in the conflict
regulation, may arise.

2.1.3.3. Public policy restriction is provided for by art. 16 of the reform law. This regulation states
that: "1. The foreign law shall not apply if its effects are contrary to public policy. 2. In this event
the law referred by means of other connecting factors that may be laid down for the same legislative
hypothesis, shall apply. Failing this, Italian law shall apply".
As we know, it is difficult to specify the notion of public policy to which reference must be made
within the scope of private international law. It is constituted by all the ethical, political and social
principles that determine the essential nature of our legal system. 14 Of course, an important point of
reference is represented by the principles of the Constitution. In particular, with regard to
matrimonial relations, problems of public policy may arise with reference to articles 3 and 29 of the
Constitution, which express the principle of formal and substantial parity between all citizens, and
within the scope of the family (cf. supra chapter 1) .
Art. 16 states that a foreign law cannot be applied if its effects (and the reference to the effects is
very important because it limits the application of the regulation) are contrary to public policy. In
this event, the judge must have recourse to another law, possibly referred by another connecting
factor laid down for the same case, or, in the final analysis, must apply the lex fori.

2.1.3.4. Our system does not provide for an independent notion of law contravention.

2.1.4. General problems of private international law.


2.1.4.1. Connecting factors common to the issues indicated in the following sections are: the
common citizenship of the spouses; the residence of one of the spouses in relation to the possibility
of selecting the law of this place, and domicile or residence, in relation to jurisdiction over the issue.
Where the connecting factor is citizenship, and one person has several citizenships, art. 19, 2nd

14
A ruling of the Milan ‘Corte d'Appello’ [Appeal Court] stated that "public policy protects the founding principles,
that cannot be renounced, of the legislative system conferred upon determined collective interests, preventing the
foreign law called upon to govern the relationship from producing conflicting effects": thus App. Milan, 6 February
1998, in R.d.i.p.p.1998, p. 582.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 27


paragraph of law 218/1995 applies. This provision lays down that "if the person has several
citizenships, the law of that State, out of all those of which there is citizenship, with which the
person has the closest ties, shall apply. If one of the citizenships is Italian citizenship, this shall
prevail".
In relation to matrimonial property issues, art. 30 of the law, referring to art. 29, establishes that in
the event of spouses with different citizenships or several common citizenships, the law of the place
in which the married life was predominantly located, is applicable.
The criterion of the place in which married life is predominantly located involves the need for
establishment of fact. This is not a specifically legal criterion. In order to identify this place it is
necessary to refer to diverse and varied factors (for example, the place of common residence, the
place where the children go to school, the location of the family’s property and other criteria).
Notions of domicile and residence are specified in art. 43 of the Italian civil code. The domicile is
the place where a person has set up the headquarters of his/her business interests. The residence is
the place in which a person usually resides.
The habitual residence is not a connecting factor that is specifically provided for by Italian law.

2.1.4.2. Art. 18 of law no. 218/1995 regulates the instance in which the applicable law is that of a
multi-legislative system. This regulation lays down that: "1. If several personal or territorial
regulatory systems coexist in the system of the State referred to by the provisions of this law, the
applicable law shall be determined according to the criteria used by this system. 2. If these criteria
cannot be identified, the legal system with which the case in point presents the closest ties shall be
applied".
This provision confor ms to the general rule expressed in art. 15, according to which the foreign
regulatory system that is the subject of the private international referral is reconstructed and applied
according to its own principles. The criteria according to which the foreign system as a whole
assigns the various cases to different sub-systems may be expressly provided for by the foreign
legislator, or established by jurisprudence, or indicated by doctrine.

2.2. INTERNATIONAL J URISDICTION OVER M ATRIMONIAL PROPERTY ISSUES (JURISDICTION OF


COURT AND OF OTHER AUTHORITIES )

2.2.1. The general rules on international jurisdiction as applied to matrimonial property


regimes.
2.2.1.1. First of all, it must be stated that only those jurisdiction criteria applicable on the basis of

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 28


Italia n law have been examined, without referring to possible, limited hypotheses of interaction
with Brussels Regulations I and II, in so far as problems that are also common to other States have
already been noted.
General rules of international jurisdiction are contained in art. 3 of law 218 of 1995. This article
lays down that:
"1. Italian jurisdiction shall be valid when the defendant is domiciled or resident in Italy or has a
representative there who is authorised to go to law in accordance with article 77 of the Italian code
of civil procedure and in other cases provided for by law.
2. Jurisdiction shall also be valid on the basis of criteria established by sections 2, 3 and 4 of part II
of the Convention concerning jurisdictional competence and the execution of decisions on civil,
commercial and protocol-related matters, signed in Brussels on 27 September 1968, implemented
with law no. 804 of 21 June 1971, and subsequent amendments in force for Italy, even when the
defendant is not domiciled in the territor y of a contracting state, when this relates to one of the
issues included within the scope of the Convention. With regard to other issues, the jurisdiction
shall also be valid on the basis of criteria laid down for territorial competence". The criteria
provided for by the Italian code of civil procedure in order to identify the competent judge for the
territory, (i.e. the general court for the physical persons in question) makes reference to the
residence or domicile of the defendant. Art. 18 of the Italian code of civil procedure also lays down
that if the defendant is not domiciled or resident in Italy, the judge of the place where the plaintiff
resides shall be competent. 15

2.2.1.2. The regulations provided for by art. 3 of the reform law are also applicable in respect of
matrimonial property issues. It is, in addition, necessary to refer to the provision laid down by art.
32 of law 218/1995. This regulation lays down that, "on the issue of invalidity or annulment of the
marriage, of legal separation and dissolution of the marriage, the Italian judge’s jurisdiction shall be
valid, as well as in the cases provided for by art. 3 and when one of the spouses is an Italian citizen
or when the marriage was celebrated in Italy". When questions relating to matrimonial property
issues are, however, linked to questions governed by art. 32 of the reform law, and this regulation is

15
Article 20 and subsequent articles of the Italian code of civil procedure identify the competent judge for the territory
in relation to specific issues such as, for example, in proceedings relating to obligations, the judge competent for the
territory is also the judge in the place where the obligation arose or must be continued and for cases relating to rights in
rem in immovable property, reference is made to the place where the immovable property is located.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 29


applied,16 it is also necessary to refer to these criteria for assigning jurisdiction.

2.2.2. Rules on international jurisdiction particular to matrimonial property law issues.


2.2.2.1. It is necessary to start by saying that the hypothesis of a marriage contract in the strictest
sense is not provided for by Italian law but agreements relating to matrimonial property issues are
possible (cf. supra chapter 1).
Questions relating to the law applicable to matrimonial property issues linked to a foreign system,
where the spouses have not drawn up a marriage contract, will be decided by the competent Court
according to domestic criteria of territorial competence.

2.2.2.2. The marriage contract is not provided for by Italian law but provision is made for
agreements relating to matrimonial property regimes (see sub 1.1.4 and subsequent articles and 1.2
and subsequent articles).
In the event, however, of applicability of the foreign law by virtue of connecting factors provided
for by the reform law, a contract of this type could be stipulated before a notary by means of a duly
authenticated document,17 if not in conflict with public policy.
The authority with jurisdiction to deal with questions deriving from a marriage contract will be the
Court with territorial competence, also in accordance with what is provided for sub 2.2.2.1.

2.2.2.3. In Italy, a matrimonial property regime must be changed by means of a duly authenticated
document accepted by a notary.
In the event of questions relating to the validity of, or the law applicable to, a change in matrimonial
property regime made abroad, the Authority with jurisdiction to decide will be the Court with
jurisdiction as provided for sub 2.2.2.1.

2.2.2.4. Same as what has already been said sub 2.2.2.3.

2.2.2.5. Same as what has already been said sub 2.2.2.3.

16
It is, however, necessary to mention the hypothesis that Regulation no. 1347 of 2000 is applicable to questions
relating to the dissolution of the marital bond. The regulations laid down by this Community legislation do not apply, by
express provision, to the property-related effects of the marriage, even if connected to the proceedings that are subject
to application of the Regulation. Regulations previously in force do, therefore, continue to be applied.
17
For specific problems appertaining to the role played by the notary cf. SALERNO CARDILLO, Matrimonial
property issues under the new private international law and reflections on the role of the notary, in Riv. not.,1996, I, p.
179 ss.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 30


2.3. LAW APPLICABLE TO THE M ATRIMONIAL PROPERTY R EGIME

2.3.1. Determination of the law applicable to the matrimonial property regime

2.3.1.1. In case spouses have entered into a marriage contract.


It is important to note that Italian law does not specifically permit the stipulation of marriage
contracts in the strictest sense. Spouses may adopt one of the typical contractual matrimonial
property regimes and, we believe, some atypical regimes within certain limitations (v. supra , §
1.1.4.5 and subsequent articles). Indeed, it is certainly permissible to choose between the standard
regime (communal property) and that of the separate property regime.
With regard to private international law, art. 30 of law no. 218 of 1995 makes provision for spouses
to choose, by means of a written declaration, to apply the law of the State of which at least one of
them is a citizen or in which at least one of them resides, instead of the law provided for by art. 29.
Art. 30 specifies that this agreement is valid if considered so by the law chosen or by that of the
place in which the agreement was stipulated. Matrimonial pr operty regimes governed by a foreign
law, on the basis of this regulation, may only be applied to third parties if the latter were aware of it
or if they were ignorant of it due to their own negligence. With reference to rights in rem in
immovable property, for the purposes of applicability with regard to third parties, the publication
formalities provided for by the law of the State in which the immovable property is located must be
respected.

2.3.1.1.2. Public policy may be taken into consideration on th is issue should the applicable law
provide for an unjustified discrimination between the spouses. If the effects of the application of the
foreign law are discrimination of this type, a problem of conflict with articles 3 and 29 of the
Constitution would arise.
Qualification issues may be raised to establish whether the problem relates to matrimonial property
issues or to a contractual relationship linked to the marriage and conditioned by it.
Under these circumstances the issue of the possible applicatio n of the law laid down for contractual
obligations (art. 57 law 218/1995 and, therefore, the Rome Convention of 1980) or for gifts (art. 56
law 218/1995), in place of the application of art. 30 of said law, may be raised.
Art. 57 of the reform law lays dow n that "Contractual obligations shall, in any event, be governed
by the Rome Convention of 19 June 1980 on the law applicable to contractual obligations,
implemented with law no. 975 of 18 December, without prejudice to other international
conventions, whe re applicable".

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Art. 56 lays down that "Gifts shall be governed by the national law of the giver at the time when the
gift is made. 2. The giver may, by means of an express declaration when the gift is made, place said
gift under the law of the State in which he/she resides. 3. The gift shall be valid, in terms of form, if
it is considered to be so by the law governing its substance or else by the State in which the act
occurs".

2.3.1.1.3. The aim of choosing a law, as specified by art. 30, is simply to designate the law
applicable to matrimonial property issues. As has already been said, the choice is limited, in so far
as the spouses may only refer to the law of the State of which one of them is a citizen or in which at
least one of them resides. The choice must be made by means of written declaration, and so, tacit
selection is not admissible. The validity of the selection, also with regard to the time of selection,
shall be evaluated in accordance with art. 30, paragraph 2. On the basis of the law identified by art.
30, paragraph 2, the possibility of designating other laws, also with reference to other subjects, must
also be evaluated.

2.3.1.2. The spouses have not entered into a marriage contract.


2.3.1.2.1. The law applicable to matrimonial property issues, in the absence of a selection
declaration, is the same law provided for by art. 29 regarding personal relations.
The main connecting factor provided for is that of the common national law.
The regulations do not specify what time reference must be made. It is, however, thought that the
relevant moment is when the question is raised.
The lack of temporal reference also brings about the possibility of the matrimonial property regime
being subject to other laws during the marriage, as a consequence of a change in the common
citizenship of the spouses.
Should the spouses not have a common citizenship, or have more than one common citizenship,
reference must be made to the law of the state in which the married life was predominantly located.
Prevailing doctrine considers that this regulation should prevail even over what is laid down by art.
19 of the reform law, in the event of Italian citizenship. And so, if the spouses have several common
citizenships, reference must be made to the law of the place in which the married life was
predominantly located even if Italian citizenship is one of the citizenships shared by the spouses. 18
This regulation applies in the same way to both Italians and foreigners.

18
In this respect CONETTI, in Le Nuove Leggi Civili Commentate [Annotated New Civil Laws], 1996, p. 1176 ss.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 32


With regard to stateless persons and refugees, it is ne cessary to refer to the general rule laid down
by art. 19, 1st paragraph of the reform law. Art. 19 lays down that: "in cases in which the provisions
of this law refer to a person’s national law, if the latter is a stateless person or a refugee, the law of
the State of domicile or, failing this, the law of the State of residence, shall apply".
With regard to real rights, this regulation must be coordinated with what is laid down by art. 51, of
law 218/1995.
Art. 51 of the reform law lays down that: "1. Pos session, ownership and other real rights over
movable and immovable property shall be governed by the law of the State in which the property is
located.
2. The same law shall govern the acquisition and loss of said property, apart from in the case of
succession and when the attribution of a real right is dependent on a family relationship or a
contract".
On the basis of the 2nd paragraph of this article, however, the acquisition and loss of a real right,
where this is dependent upon a family relationship, is not governed by lex rei sitae. The connecting
factor of the lex rei sitae is valid, rather, for determining the content of the real right, irrespective of
the title of the acquisition.

2.3.1.2.2. In relation to identification of the connecting criteria, should a person have more than one
citizenship, the rule provided for by art. 19 is followed. See supra , sub 2.1.4.1. In the event of
multi-legislative systems, the rule of art. 18 is followed. See supra, sub 2.1.4.2.
The definition of stateless person or refugee is a problem of qualification, that must be decided
according to lex fori. If the law identified as the law of domicile or residence is not Italian law, it
will then be necessary to qualify these concepts according to the lex causae: see supra, sub 2.1.3.1.
With regard to referral, see supra , sub 2.1.3.2. Referral is, in principle, admissible for the issue
under examination.
It is, however, prohibited, on the basis of art. 13 of law 218/1995, if the applicable law has been
determined on the basis of the law chosen by the parties.
Problems of public policy may, of course, be raised on this issue: see supra , 2.3.1.1.2.

2.3.2 . Scope of the law applicable to the matrimonial property regime

2.3.2.1. During marriage


2.3.2.1.1. The law applicable to matrimonial property issues governs the effects, in terms of
property, of the marriage in the strictest sense, i.e. the spouse’s assets and liabilities and respective

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 33


powers and obligations and the validity and effects of marriage agreements.
The law applicable on the basis of art. 30 relates both to statutory and contractual matrimonial
property regimes. According to part of the doctrine 19 these would, instead, fall within the scope of
art. 29, relating to personal relations, rights and obligations, that, although relating to property
issues, are inherent to the content of the obligations of joint and several family liability.

2.3.2.1.2. It is believed that questions relating to the capacity to stipulate marriage contracts and
sanctions for documents drawn up without the other’s consent would be covered by the law relating
to property issues.
As for real rights, and the eventuality of a legal mortgage arising within the scope of matrimonial
property issues, it is necessary to refer to the delimitation established by Italian law (art. 51) that
distinguishes between the title of the acquisition and the content (see supra sub 2.3.1.2.1.). In this
case, the constitutive title falls within the scope of the law relating to matrimonial property issues,
whilst the content of the right is governed by the lex rei sitae.
It is possible that problems of public policy, and consequentially, of the application of art. 16 of law
218/1995, may be raised if the matrimonial property issues are governed by regulations, the effects
of which openly conflict with the principles of equality between spouses established by the Italian
Constitution. In relation to art. 16 of the reform law see sub 2.1.3.3.

2.3.2.1.3. With reference to contracts concluded by spouses, the first problem to arise is that of
qualification. In fact, should these contracts be closely connected with questions appertaining to
matrimonial property issues, it will be this law that must be applied to establish their admissibility.
Once the validity of the transaction has been accepted, however, all other aspects can be considered
to be covered by the law applicable to the contract.
With regard to gifts, the problem is more complex in so far as there must be coordination with the
appropriate regulation provided for by art. 56 of the law, and also with art. 57 of said law, that, in
any event, extends the applicability of the Rome Convention of 1980. 20 In addition, it is necessary
to distinguish between specific cases.
Prevailing doctrine believes that the Rome Convention applies to all contractual gifts, but that those
relating to family relationships do not fall within the scope of the Convention, even with the
extension operated by the Italian legislator.
19
In this respect CLERICI, Comment on art. 29 law 218/1995, in R.d.i.p.p. 1995, p. 1059.
20
See the reference to these regulations sub 2.3.1.1.2.

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For gifts between spouses, part of the doctrine deems the latter to be fully covered by the
application of art. 56, whilst other parts differentiate between the question of admissibility, which
should be governed by art. 30, and that of content, which should be regulated by the special
regulation on gifts.21
For gifts made upon the occasion of the marriage,22 doctrinal positions are also quite varied. Some,
in fact, believe that gifts must be subject to the law provided for by art. 56 of law 218/1995,23
identifying in matrimonial gifts one of the residual fields of application of art. 56. Others believe
that gifts should be subject to the law provided for by art. 30,24 and others still distinguish according
to whether the matrimonial gifts were made between spouses or came from a third party. 25
Maintenance obligations are governed, on the basis of art. 45 of law no. 218/1995, 26 or, in any
event, by the Hague Convention of 2 October 1973. It is interesting to note that Italy has made use
of the reservation permitted by art. 15, by force of which the lex fori is applicable when the parties
have the nationality of the State of the judge and the debtor has his/her own habitual residence in
this State. With regard to rights deriving from life assurance policies, it is necessary to refer to the
law applicable to contracts.

2.3.2.2. At the time of dissolution of marriage.


Art. 31 of law no. 218/1995 lays down that “1. Legal separation and the dissolution of the marriage
shall be governed by the common national law of the spouses at the time of the petition for
separation or dissolution of marriage. Failing this, the law of the State in which the married life was
predominantly located shall apply. 2. Legal separation and the dissolution of the marriage, where
these are not provided for by applicable foreign law, shall be governed by Italian law”. 27

21
In the first sense BOSCHIERO, comment on art. 56 law no. 218/1995, in R.d.i.p.p.1995, p. 1169 ss.; MOSCONI,
op.cit., p. 129. Favours a split between law on admissibility and law on content BALLARINO, International private
law , Padua, 1999, p.559.
22
The Italian civil code regulates, in art. 785, the “marriage -related gift”, id est the matrimonial gift. This type of gift is
made with regard to a determined matrimonial future, either by others in favour of one or both of the spouses or
children born of the latter and is taken up without the need for acceptance, but does not produce an effect unless the
marriage fails to take place.
23
In this sense see, amongst others, BOSCHIERO, op.loc.cit.
24
And so, for example, VILLANI, Matrimonial property issues under the new private international law, in
Giust.civ.1996, II, p. 459.
25
And so, under the regulation previously in force ZICCARDI CAPALDO, The propter nuptias gift and its regulation
under Italian private international law , in R.d.i.p.p. 1973, pp.613 ss.
26
See sub 2.1.1.1.
27
The ratio of the provision, which does not distinguish between Italian and foreign citizens, it that of protecting a very
real “right to divorce”, even for foreigners without any link with the Italian system”: and so BALLARINO, op. cit., p.
440. CONETTI, in Comment on the reform of private international law, Turin, 2001, p. 137, talks of “principle of

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 35


Contrary to the regulation governing matrimonial property issues, the spouses are not permitted to
make any selection regarding the applicable law governing the dissolution of the bond.
Another difference is that, in the event of there being more than one common citizenship,
preference may be given to the application of Italian law ex art. 19, paragraph 2. The use of the
criterion of predominant location of the married life is not, in fact, subordinated, in this case, to the
possession of several comm on citizenships, as in previous articles. 28
It is not easy to delimit the scope of articles 30 and 31 of the reform law. It is considered that, at the
time of the separation or dissolution of the marriage, changes in how matrimonial property issues
are regulated are governed by art. 30.
For example, the separation of the property that formed the communal property, and, in any event,
changes to matrimonial property issues, according to some 29 fall within the scope of the law
governing matrimonial property issues, whilst according to others 30 art. 31 governs property issues
between separated or divorced spouses. With regard to maintenance, the law referred to by art. 31 is
intended to regulate maintenance obligations between separated or divorced spouses, by vir tue of
art. 8 of the Hague Convention of 1973, assimilated ex art. 45 of the reform law. This provision lays
down that this Convention is applicable “in every case”. Not only maintenance payments but also
those of a reparatory nature fall within the scope of the divorce law.
Finally, questions relating to the attribution of the family home or possession of moveable property
under joint ownership may also be considered to be subject to the law indicated by art. 31, in so far
as these do not strictly fall within the scope of matrimonial property issues.

2.3.2.2.2. The regulation relating to succession is provided for by art. 46 of law 218/1995. This
regulation lays down that "1. Succession due to death shall be governed by the national law of the
subject to whom the inheritance relates, at the time of death. 2. The subject to whom the
inheritance relates may, by means of an express declaration in the form of a will, subject the entire
succession to the law of the State in which he/she resides. The choice shall be invalid if the person
making the declaration no longer resides in this State at the time of death. In the case of succession
of an Italian citizen, the choice shall not prejudice the rights that Italian law attributes to legitimate
residents in Italy at the time of death of the person to whom the succession relates. 3. Division of

positive public policy, that comes into play where a lack of provision from institutions considered in the foreign system
has previously been established”.
28
In this respect CLERICI, op. cit., pag. 1074.
29
In this respect BALLARINO, op. cit., p. 441; CLERICI, op. cit., p. 1075.
30
Thus VILLANI, op. cit., p. 439.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 36


inheritance shall be governed by the law applicable to the succession, unless those sharing the
inheritance have, by mutual agreement, designated the law of the place where the succession is
opened or the place where one or more components of the estate are located".
It is not easy to identify the demarcation line between the law on succession and the law on
matrimonial property issues.
The identification of property that, subsequent to dissolution of the communal property following
the death of one of the spouses, forms part of the inherited estate, is one of the questions relating to
matrimonial property issues.
Included within the scope of questions relating to the law of succession is the identification of the
share due to the spouse or the possible existence of a reserve in the latter’s favour.
Jurisprudence31 has specified that Italian regulations that indicate the heirs (one of which being the
spouse) as necessary recipients of a share of the estate of the de cuius are not public policy. This
means that, in Italy, it is possible to recognise the effects of a foreign law that allows spouses to be
excluded from the inheritance.

2.3.3. Law applicable in case of changes in the matrimonial property regime.


2.3.3.1. Modifications of the connecting factors

2.3.3.1.1. The connecting factors provided for by art. 30 of the law are likely to change over the
course of time.
In fact, common citizenship of the spouses, not anchored to a fixed time reference, may change, just
as the spouses may choose a law during the marriage. In the same way, the predominant location of
married life may change during the marriage.

2.3.3.1.2. The problem that arises in the event of conflict due to change is particularly delicate if the
change of applicable law brings about a change of regime, for example, if the new law provides for
a separate property regime whilst the previous law provided for a communal property regime. In
these cases doctrine discusses whether the new regime should apply from the time of the wedding,
or only to acts occurring subsequent to the change in the connecting factor. Opinion which deems
that the new law should apply to all property-related events occurring subsequent to the celebration
of the marriage, unless these are situations that have already been fully defined, even if said

31
In this respect ‘Cassazione civile’, section. II, 24 June 1996, n. 5832, in Riv. not. 1997, 935.

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situations relate to the rights of third parties, would seem preferable. 32 For example, property that
prior to the change in law was personal, according to this opinion would come under the communal
property regime following the change in regime. If, however, said property was the subject of an
administrative document on the part of just one of the spouses, or had been the subject of a distrait
by thir d parties, these instruments would continue to be valid, and it does not seem that these
situations may be influenced by a change of regime.

2.3.3.2. Modifications of the applicable law


2.3.3.2.1. Questions relating to a possible change in the applicable law should be resolved by the
same law with the provision of transitional regulations.

2.3.3.2.2. In order to identify the solution to a specific case, reference must be made to what is laid
down by lex causae. Should this law, which has been subject to significant amendments that may
have an influence upon the questions under examination, fail to lay down any specific provision, it
should be possible to refer to the principles of regulations regarding succession of laws. A problem
of public policy may be raised in relation to the provision of an unjustified retroactive application of
the new regime.

2.3.3.3. Changes in the matrimonial property regime by consent of spouses.


2.3.3.3.1. Art. 30 of law 218/1995 does not exclude the possibility that the spouses may choose the
law applicable to their matrimonial property issues at a later date than that on which their marriage
was celebrated.
Likewise, it is possible that there may be a subsequent change in the choice previously made. In
order to identify the la ws that the spouses may choose and for procedures relating to the choice, see
supra sub 2.3.1.1.1.

2.3.3.3.2. Art. 30 requires a written document for formal validity of the agreement. The 2nd
paragraph of the same article lays down that, for further requirements with regard to form, as well
as for those relating to substance, reference must be made to the system chosen and to that under
which the agreement was concluded. Questions appertaining to problems relating to changes in
matrimonial property regimes must also be resolved in accordance with the law selected.

32
Thus BALLARINO, op.cit., p. 428. Contra VILLANI, op.cit., p. 448.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 38


2.3.3.4. Other possible changes in the matrimonial property regime
2.3.3.4.1. An automatic change in the matrimonial property regime is possible in the event of a
change in the connecting factor. See supra sub 2.3.3.1.1.

2.3.3.4.2. No provision.

2.3.4. Law applicable to the publication of the matrimonial property regime

2.3.4.1. Law applicable to the publication of the initial regime


2.3.4.1.1. Art. 30 of law no. 218 of 1995 expressly lays down that matrimonial property regimes
governed by a foreign law are applicable to third parties only if the latter are aware of them or are
ignorant of them due to their own negligence.
In the Italian system some problems relating to the application of this regulation arise in so far as
the system of no publication with reference to the statutory communal property regime is
compulsory i.e. third parties are presumed to be aware of it and it is applicable to them without any
need for formality.
In contrast, the system for publication of marriage contracts is assured by means of their annotation
in the margin of the marriage certificate, this annotation not being possible in the case of foreign
spouses who have not celebrated the marriage in Italy. 33
With regard to rights in rem in immovable property, the same regulation lays down that these are
applicable to third parties only if the forms of publication prescribed by the law of the State in
which the property is located have been respected. In Italy this involves transcription in public land
registries.

2.3.4.1.2. Generally speaking, the law applicable to the publication system, in so far as it relates to
documents selecting matrimonial property regimes and marriage contracts on the one hand, can be
considered to be the law applicable to the relationship. With regard, however, to immovable
property, art. 30, paragraph III, lays down that the forms of publication prescribed by the lex rei
sitae must be respected. This is in line with what is laid down by art. 55 of law no. 218/1995. This
regulations lays down that “The publication of instruments relating to the constitution, transfer and
discontinuance of real rights shall be governed by the law of the State in which the property is

33
In this respect cfr. VILLANI, op. cit., p. 460 and SALERNO CARDILLO, op.cit., p. 201.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 39


located at the time of the instrument”.

2.3.4.1.3. Same as sub 2.3.4.1.3.

2.3.4.2. Law applicable to the publication of a modified regime


2.3.4.2.1.
2.3.4.2.2.
2.3.4.2.3. The response to these questions is as sub 2.3.4.1. The same problems of application also
arise in the event of a change in the matrimonial property regime. Should, however, an agreement
involve a change in regime relating to immovable property, this must be published, without
difficulty, in Italy, by means of transcription in land registers. Problems arise where an agreement
only involves, for example, a change to the regime for administering property. In fact, under our
system, the list of instruments that may be subject to transcription is exhaustive.

2.4. RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS AND ‘ PUBLIC ’ ACTS IN
RESPECT OF M ATRIMONIAL P ROPERTY R EGIMES

2.4.1. The general rules on the effectiveness of foreign "public" acts and court decisions as
applied in the area of matrimonial property regimes
2.4.1.1. The reform law relating to private international law has, to a large extent, accommodated
the principle of automatic acknowledgement of foreign court decisions.
To establish whether or not there is a court decision it is necessary to refer to the provisions of
Italian law, in the sense that a court decision is considered to be any measure that, if it had been
issued in Italy, would have taken that form.
In relation to the Authorities issuing the measure, the latter is considered to be a court decision,
even if issued by administrative Authorities, assuming that, if it had been issued in Italy, it would
have been pronounced by a judicial body.
Legal proceedings are only required for compulsory enforcement or in the event of dispute
regarding the existence of the acknowledgement requirements.
With regard, more specifically, to these requirements, art. 64 of the reform law, in short, lays down
that the foreign court decision is recognised in Italy without the need to have recourse to any
proceedings, if the judge that pronounced the decision was able to hear the case according to
principles of judicial competence that are in line with the Italian system; if the proceedings took
place abroad in such a way that the essential rights of the defence were respected, also with regard

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 40


to notification of the application originating proceedings and any declaration of contumacy; if the
court decision is final according to the law of the State of origin and is not contrary to another final
Italian court decision; if there is no pendency of proceedings in Italy of a process initiated prior to
the foreign proceedings and if the provisions of the court decision do not product effects that are
contrary to public policy.
The ‘Corte d'appello’ [appeal court] of the place in which the court decision is to be implemented
may be as ked to ascertain requirements.
Art. 65 provides for a specific regulation in relation to provisions relating to the capacity of persons
as well as to the existence of family relationships or rights of status, laying down that these
measures shall take effect “when they are pronounced by the authorities of the State whose law is
referred to by this law, or produce effects within the system of that State, even if pronounced in
another State, provided that this is not contrary to public policy and that the essential rights of the
defence have been respected”. Art. 65 has a wider content with reference to the type of instrument
(talks about measures rather than court decisions) but is more restrictive in terms of subject matter.
There is much doctrinal discussion regarding the relationship between the two regulations and
whether this is of a complementary or alternative nature,34 but we do not believe that these
questions have any specific relevance on this occasion.
In contrast, art. 66 refers to foreign measures pronounced in chambers and lays down that these
shall be automatically recognised provided that the conditions of art. 65 are respected, or if they are
pronounced on the basis of criteria corresponding to those of the Italian system.
Finally, art. 68 refers to other public instruments recognised abroad and refers, for implementation
and compulsory enforcement of these instruments, to the proceedings provided for by art. 67
regarding the enforcement of measures.

2.4.1.2. The observations made sub 2.4.1.1. are also valid for matrimonial property issues.

2.4.2. Rules on the effectiveness of foreign "public" and private acts and court decisions
specific to the area of matrimonial property regime
2.4.2.1. Recognition of marriage contracts concluded abroad is ba sed on the law applicable to
matrimonial property issues.

34
See in this respect, amongst others, BARIATTI, Comment on articles 64-65-66 law no. 218 of 31May 1995, in
R.d.i.p.p.1995, p.1221 ss.; BALLARINO, op.cit., p.169 ss.; PICONE, Art. 65 of the Italian reform law on private
international law and recognition of foreign court decisions relating to divorce, in R.d.i.p.p. 2000, p. 381 ss.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 41


2.4.2.2. Changes relating to matrimonial property issues that are made by means of agreements
between the spouses will be governed on the basis of art. 30 of law no. 218/1995. If the
modification is made by means of the intervention of a public authority and if this intervention is, in
the main, of an administrative nature, it is possible that the acknowledgement will be based on the
regulations governing the recognition of measures pronounced in chambers, i.e. art. 66 of law no.
218/1995.
Should changes to the matrimonial property regime be made by means of a legal action, the
regulations laid down for recognition of court decisions shall apply.
See, in this respect, what has already been said sub 2.4.1.1.

2.4.2.3. Foreign court decisions relating to the realisation and distribution of assets forming part of
the matrimonial property regime shall be recognised on the basis of regulations set forth sub 2.4.1.1.

2.4.2.4. A problem regarding relations between judicial and administrative authorities arises
specifically in reference to questions appertaining to publication in registers.
In fact, on the basis of what is provided for by art. 67, 2nd paragraph, in the first instance, it seemed
that in order to proceed with transcriptions and annotations in public registers, proceedings before
the ‘Corte d'Appello’ to ascertain requirements, were always required.
Subsequently, the ‘Direzione degli Affari Civili del Ministero della Giustizia’ [Civil Affairs
department of the Ministry for Justice] specified that foreign measures requiring publication in
registers of births, marriages and deaths, should be submitted direct to the relevant Authority for
transcription.
If this Authority deems that requirements for a utomatic recognition have not been met, the question
must be referred to the Public prosecutor with jurisdiction for the territory. The latter may order the
administrative authority to proceed with the transcription if he/she believes that the conditions have
been met or may invite said Authority to notify the applicant that the requirements have not been
met. In this event, the interested party may ask for the ‘Corte d'Appello’ to ascertain these
requirements by means of the proceedings provided for by art. 67 of the law.
What is laid down is believed to be valid not only for registers of births, marriages and deaths, for
which reference is made to the Registrar, but also for land registers, for which the competent
administrative authority is the Custodian of the register.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 42


2.4.2.5. Recognition of decisions or public instruments on matters appertaining to matrimonial
property issues may be refused if the latter produce effects contrary to public policy.
Conformity to public policy is, in fact, expressly provided for both with regard to recognition of
foreign court decisions and for measures pronounced in chambers. How this contrariety is to be
understood in the more limited sense of what is laid down by art. 16 law 218/1995 (see, in this
respect, supra sub 2.1.3.3.) must, however, be stated. In the event of recognition of measures issued
abroad, doctrine has specified that no attention must be paid to any aspects of the proceedings
taking place abroad, such as fraud or collusion under foreign justice, that do not materialise in the
provisions of the court decision conflicting with public policy, or with the law applied by the
foreign judge 35 or with the higher or lower level of extraneousness of the case with regard to the
Italian system, but specifically to any contrariety of the effects of the measure with regard to public
policy.

2.4.3. Practical significance of the rules set out under 2.4.1.- 2.4.2.
2.4.3.1. Since the entry into force of law no. 218/1995, which established the principle of automatic
recognit ion of foreign court decisions and instruments, rulings relating to recognition of court
decisions and foreign instruments have been infrequent. Some court decisions, issued soon after the
law came into force, related to specific problems of interpretation, in particular, appertaining to
procedural questions. This response was, however, based on consultation of reviews written on the
subject, since official data was unavailable.

2.4.3.2. The frequency of application of regulations relating to the effectiveness of foreign court
decisions is probably higher in reference to the need for administrative authorities to provide for
transcriptions appertaining to family status, with particular reference to the transcription of court
decisions ascertaining the status of a divorced person.
These problems are now regulated, as we know, by Regulation 1347 of 2001.
It can, however, be presumed that cases of registration and transcription made without recourse to
Judicial authorities, involving the consideration of a fore ign measure, are rather more frequent,
assuming court decisions that ascertain the existence of recognition requirements. Even in this case,
however, it should be noted that no official data is available.

35
Thus BARIATTI, op. loc. cit.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 43


CHAPTER 3.
UNMARRIED COUPLES . INTERNAL LAW

3.1 SOURCES OF THE LAW ON UNMARRIED COUPLES


There is no direct and specific regulation of personal and property issues for unmarried couples.
Only some regulations of the Italian civil code and other special laws expressly take into
consideration the phenomenon of cohabitation in order to link it with defined legal effects. We can
cite, in this respect, art. 317-bis, 2nd paragraph of the Italian civil code which attributes the joint
exercise of authority over children to natural parents “where they are living together” (i.e. natural
family), and regulates this by means of referral to regulations laid down for the legitimate family;
articles 342-bis and 342-ter, introduced in the Italian civil code by the recent law no. 154 of 4 April
– Measures against violence in family relations – that provided for a series of protection orders
against abuse within the family, for situations where “the conduct of the spouse or other cohabitant
is the cause of serious prejudice to the physical or moral integrity, or the liberty, of the other spouse
or cohabitant”. Then there are some social legislation measures, such as art. 2 no. 405 of the law of
29 July 1975, responsible for bringing in family counsellors, and which laid down that the service
was aimed at “resolving the problems experienced by couples”; art. 5 of the law no. 194 of 22 May
1978, relating to the voluntary interruption of pregnancy which refers generically to the possibility
of hearing the opinion of the father of the child conceived; art. 3 of the recent law no. 91 of 1 April
1999, on the subject of organ transplants from dead bodies, that includes amongst the individuals to
be informed regarding the significance of the donation of organs and related therapeutic
possibilities, as an alternative to, but on the same level as the non-separated spouse, and in
preference to grown-up children or parents, the more uxorio cohabitant; art. 199 of the Italian code
of civil procedure that extends the rule regarding the right to abstain from appearing as a witness “to
those who, although not the spouse of the accused, live as such with the latter”. Similarly the ‘Corte
di Cassazione’ has established that, for the purposes of applying the offence of abuse within the
family (art. 572 Italian criminal code), family should be under stood to mean any group of people
between whom there has been a relationship of support and solidarity for an appreciable period of
cohabitation. 36 The recent adoption reform law, no. 149 of 28 March 2001 (art. 6), whilst reserving
adoption for married couples, has attributed importance to the period of cohabitation prior to
marriage with the aim of integrating the additional condition of stable union (two years).

36
Cass., 18 October 2000, no. 12545, in Rep. Foro it., 2001, item Abuse within the family [no. 4040]; Cass. pen.
[criminal appeal court] 28 June 2001, no. 26406.

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In jurisprudence, with regard to unlimited jurisdiction, guidelines aimed at recognising, by means of
the use of common law instruments, some legal effects of cohabitation and organising the system of
property interests between cohabitants in terms of protection of the weaker cohabitant have been
affirmed.

3.2 H ISTORIC DEVELOPMENT OF THE LAW ON UNMARRIED COUPLES


Clear refusals to acknowledge the phenomenon of the de facto union, based on the constitutional
regulation of art. 29 that recognises the rights of the family “as a natural society founded on
marriage”, have today been superseded. Art. 29 of the Constitution expresses the so-called favor
matrimonii, but does not oppose legal recognitions of free unions which may, what is more, be
covered in art. 2, by the social formations in which the human personality operates. 37 On the basis
of the constitutional regulation, the existence of a protective space relating to non-institutionalised
cohabitation, compatible with the privileged protection attributed ex art. 29 to the legitimate family
can, therefore, be asserted. Nonetheless, the system lacks an express regulation of the phenomenon.
The legislator has only acted with sector -based laws to eliminate some forms of discrimination
against cohabitants over spouses, above all in relation to the protection of personal situations. In the
last legislative period, various bills to regulate so-called “civil unions” were presented. These were
put forward from the perspective of “institutionalisation” of de facto families and were aimed at
offering the latter legal recognition, at times as real and proper independent legal subjects, and
regulation which mainly followed on closely from that laid down for families founded on marriage,
with which they are made equal. Other bills, on the contrary, adopt a perspective that is based on
recognition of these unions with certain limited effects, but which require the regulation of personal
and property issues under the private autonomy of the cohabitants.

3.3 T HE LEGAL CHARACTER OF RELATIONS OTHER THAN TRADITIONAL MARRIAGE


3.1. Marriage is a legal transaction that can only be celebrated between persons of the opposite sex.
It is necessarily monogamous [bigamy causes the marriage to be invalid (art. 124 Italian civil code),
as well as constituting an offence (art. 556 code of civil procedure) and, in addition, the dissolution
or discontinuance of the civil effects of the marriage can be requested when “the other spouse with
foreign citizenship … has contracted a new marriage abroad”: art. 3, no. 2), point e) of law no. 898
of 1 December 1970]. The forms of marriage recognised by the system are: a) civil marriage,

37
Cf. Cost. court 18 november 1986, no. 237 according to which “a consolidated relationship, even de facto, does not
appear … constitutionally irrelevant when reference is made to the importance given to recognition of social formations
and consequent intrinsic manifestations of solidarity”.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 45


celebrated in the communal home before the registrar in the presence of two witnesses; b) religious
marriage celebrated before a minister of the catholic faith according to canon law and transcribed in
the register of births, deaths and marriages (art. 8 of law no. 121 of 25 March 1985, that ratified the
Villa Madama Agreement containing regulations governing marriage that replaced those laid down
by the Lateran Pacts of 1929); c) marriage celebrated before a minister of a non-catholic faith
recognised by the State and transcribed in the register of births, marriages and deaths.
3.2. The de facto family serves to indicate the phenomenon of the cohabitation of persons (of the
opposite sex) who have not contracted any marriage or who have only entered into a religious
marriage which has not been transcribed, and who have instituted a communal material and spiritual
life based on the model of the substance of the marriage union. From this institution can be
distinguished other types of emotional relations that do not present a family -like structure, lacking
in the requirement of prolonged cohabitation as qualified by communal living and are of an
occasional or intermittent nature.
There is no express regulation governing the de facto family but it is linked with limited legal
effects that are comprehensively described in this chapter.
3.3. Some Italian communes have provided Registers in which it is possible to register the civil
unions of adults, even of same sex couples, for personal data purposes. There are regional laws on
the allocation of public housing which give relevance to cohabitation for the purposes of
participation in the relevant notice.
3.4. In exercising their private autonomy, cohabitants may stipulate agreeme nts governing their
matrimonial property issues.38

3.4 P ROPERTY IN RELATIONS OTHER THAN TRADITIONAL MARRIAGE.

3.4.1. Attribution of property between cohabitants and assistance with household financial
expenditure.
Even in the absence of express legislation, jurisprudence has begun to apply some institutions of
common law to de facto families, characterised by the stability of the bond, that enable the
cohabitants to be protected in their reciprocal matrimonial property interests. One initial problem
relates to the legal qualification of attribution of property between cohabitants.

38
Cfr. OBERTO , Matrimonial property regimes for de facto families, Milan, 1991; ID ., Cohabitation
contracts and “more uxorio” contracts between cohabitees in Contr. e Impr., 1991, 369;
FRANZONI, more uxorio contracts between cohabitees, in Riv. trim. dir. proc. civ., 1994, 737.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 46


During the initial historical phase, the judgement of moral and social prejudice against free unions
had led jurisprudence to qualify any act of generosity between cohabitants as invalid, being based
on unlawful grounds. Subsequently, attribution of property between cohabitants came to be deemed
admissible provided, however, that this took the form laid down for gifts; and so the declaration of
invalidity and the obligation of restitution continued to result from the lack, in most cases, of
requirements of form. 39 Then jurisprudence moved on to qualify these attributions of property as
having been made in fulfilment of moral and social duties. Firstly, the moral duty referred to
assumed a compensatory nature, and was set out as the obligation to make good damages incurred
by the woman from said relationship outside marriage (financial and social losses as a result of
having renounced other systems), and those resulting from the breakdown of the cohabitation. In
short, direct attributions to provide the partner, generally the woman, with adequate means of
subsistence for the future, found cause in the prejudice suffered by said woman in having had faith
in the stability of the relationship that led her to refuse, or fail to seek, alternative opportunities.
Subsequently, duty came to be understood to be non-compensatory, but based on solidarity, on a par
with the duty to provide assistance to which spouses are subject.
This has enabled the qualification of natural obligation to be used not only for attributions made at
the time of discontinuance of the cohabitation and having a clearly compensatory objective, but also
for those made during the course of the cohabitation. 40 The moral and social duty of mutual
assistance between cohabitants is, therefore, the basis, in domestic relations, of a corresponding
natural obligation (art. 2034 Italian civil code).
As for the contribution to financial obligations deriving from communal living, there is no duty to
provide material assistance or to make a legally coercible contribution, as is the case in relations
between spouses. Since, however, it has now been established that the de facto union, for as long as
it continues, implies for cohabitants the mutual assumption of the moral and social duty to assist
one another, the provision of labour of one or both aimed at providing for the need of the ménage
constitutes fulfilment of natural obligations, and, as such, produces the effect of soluti retentio.

39
In particular, with regard to movable property or sums of money, no -one took the time to draft contracts as required,
believing the transfer to be valid simply by means of traditio; on the other hand, with regard to immovable property, the
buy-sell transaction was adopted as a means of concealing a gift, but actually proved to be invalid due to the flawed
format of the concealed contract (even if a duly authenticated instrument was used, there was, in fact, the lack of the
two witnesses). To overcome the problem, amongst the solutions tried in jurisprudence, there was also recourse to the
figure of the gift of modest value, for which the written form is not required if there is the traditio (art. 783 civil code);
or else to classification as liberality of use (art. 770, 2nd paragraph).
40
Cass. 8 February 1977, no. 556, in Dir. fam. pers., 1977, 525; Cass. 3 February 1975, no. 389, in Foro it., 1975, I,
2301; Court of Pisa, 20 January 1988, in Dir. fam. pers., 1988, II, 1039.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 47


The moral and social duty of mutual assistance between cohabitants may also take on external
relevance. For example, jurisprudence has affirmed that more uxorio cohabitation of the beneficiary
of a maintenance award may affect the amount of said award, when the consistent and continuous
amounts received by the subject lessen or reduce their “state of need”. It is necessary, with regard to
this issue, to apply discriminatory criteria, armed with a sufficient level of certainty, between a
merely occasional relationship, to which legal consequences cannot be linked, and the de facto
family. This criterion may be reaffirmed in the stable and unequivocal nature of said relationship. 41
The reverse is not valid. The spouse who is obliged to make the payment and who lives with a third
person, cannot put forward the obligation to contribute financially to communal living for the
purposes of reducing the amount of the payment. His/her new situation cannot have repercussions,
due to the principle of favor matrimonii, on the payment of the cheque to the former spouse.
Fulfilment of the duty to provide financial assistance must be considered a priority since it is a duty
founded on the principle of post-conjugal solidarity, that falls to the separated or divorced spouse,
with regard to the fulfilment of the natural obligation to maintain the cohabitant.

3.4.2. The communal acquisitions regime


Being unable to apply, in the same way, the rules governing the family property regime, no
regulatory indices are found in the system from which it can be deduced that cohabitation brings
about a communal property regime. The conclusion is that each cohabitant continues to be the
exclusive owner of property acquired in their own name.
The protection of those who have contributed to communal living and to purchases made by virtue
of their own work activity or by means of other contributions may be entrusted, as suggested by
doctrine, to another common law institution, the unjustified enrichment (art. 2041 Italian civil
code). To establish the real extent of the enrichment of the one and the corresponding
impoverishment of the other, the actual extent of the contribution of each individual to the
purchases made must be evaluated. Doctrine on this matter suggests adopting a presumption of
acquisition in favour of the familistic society, based on that of common derivation of the money
required for the acquisition of property such as the communal dwelling, intended to satisfy the basic
needs of the family.

41
Cf., finally, ‘Cass.’ 4 April 1998, no. 3503, in Giur. it., 1999, 1609 in which it was established that relevance may be
attributed to cohabitation instituted by the separated spouse, for the purposes of the repeal of the provision with which a
maintenance award was given in the latter’s favour, provided that this does not relate to occasional relations, but to a
situation with a sufficient level of stability and certainty.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 48


3.4.3. Provision of labour between partners.
The problem appertains to the provision of labour by one cohabitant to the other’s advantage and to
the evaluation of the activity, generally carried out by the woman and being of a domestic nature, in
looking after the home. The solution given in doctrine and in jurisprudence proceeds along the same
lines as the similar problem raised in respect of legitimate families. Prior to the family law reform,
the principle of presumption of gratuitousness was applied to work carried out by one spouse for the
other, basing the argument on the fact that this work, being mainly of a domestic nature, would,
however, be covered by fulfilment of the duty of collaboration and assistance, evidence to the
contrary being admissible, above all, with regard to the provision of activities outside the home, for
example, collaboration in the husband’s professional activity. The same principle was also
considered to operate within cohabitation, in so far as these were considered to be services rendered
affectionis vel benevo lentiae causa. The change of scope of the regulatory references with the
family reform law should also have an effect on the configuration of work carried out by one
cohabitant for the other. In particular, art. 230-bis relating to the family firm overturned the
principle of gratuitousness, sanctioning the generally onerous nature of work carried out within the
scope of the family. Now, even though a direct application of the same regulation to more uxorio
cohabitation is impossible, due to the absolute nature of the list of family members that can be part
of the family firm, the similar reasoning that was carried out earlier is still valid. 42 And so, the
compression of the principle of gratuitousness operated by art. 230-bis should also be reflected in
the configuration of the work carried out by one cohabitant for another and the gratuitous nature of
said work should be eliminated. The way forward is, then, to re-evaluate the principle of
presumption of onerousness so that it can also be applied to free unio ns, evidence to the contrary
being understood i.e. that the cohabitant intended to provide these services, types of domestic work,
as a form of contribution to the family ménage, and so in fulfilment of a natural obligation.

3.5 P ROPERTY ISSUES IN CAS E OF SEPARATION OF UNMARRIED COUPLES

3.5.1. The separation of the couple


Cohabitation ceases with the dissolution of the de facto household unit, by mutual agreement of the
partners or by unilateral decision of one of the latter. No provision has been made for any form of
protection for the weaker cohabitant. Instruments of private autonomy with which the parties

42
Contra, due to the impossibility of applying, in the same way, art. 230-bis in so far as it is an extraordinary regulation
(art. 14 preliminary provisions of the Italian civil code), a ruling was given by the ‘Cass.’, 2 May 1994, no. 2404, in
Foro it., 1995, I, 1936.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 49


regulate the property-related aspects of their cohabitation, also with regard to any breakdown of the
ménage, are, in principle, admissible.

3.5.2. The effects of the separation upon the property of the members
Constitutional court decision no. 404 of 7 April 1988 declared art. 6, 1st paragraph, of law no. 392
of 27 July 1978, Regulations governing urban property rentals - unconstitutional in the section in
which it does not provide for succession in the rental contract, in the event of discontinuation of
cohabitation, in favour of the former cohabitant where there are natural offspring. In application of
this principle the ‘Cassazione’ has affirmed the right of a cohabitant to continue to live in the family
home with the children, should the other cohabitant, holder of the rental contract, have decided to
discontinue the cohabitation. Succession in the contract also operates if the cohabitation arose
during the course of the rental and even if the landlord was not aware that the property was being
occupied by the lessee’s more uxorio cohabitant.43

IF THE COHABITANTS HAVE CHILDREN , SIMILAR APPLICATION OF ART . 155, 4TH PARAGRAPH,
ITALIAN CIVIL CODE, WHICH IN THE EVENT OF SEPARATION OF SPOUSES ATTRIBUTES , IN
PREFERENCE, THE RIGHT TO LIVE IN THE FAMILY HOME TO THE SPOUSE WITH CARE AND
44
CONTROL OF THE CHILD REN , HAS BEEN ADVANCED .

The solution of the similar application of art. 155, 4th paragraph was prohibited by the
Constitutional court on the basis of the diversity of the situations being regulated. In the meantime,
however, by an interpretative decision of rejection, the Court declared the principle that can be
extrapolated from the regulation on provisions adoptable in the event of separation of spouses to
also be applicable to discontinuance of cohabitation. In the case in point, the regulation that
provides for the assignment of the right to live in the family home, in preference to the spouse with
care and control of the children, is aimed at protecting the interests of the latter in maintaining the
domestic environment, taken as the centre of the child’s emotional and customary way of life and
contributing at a fundamental level to the harmonious formation of the child’s personality. The
parents’ obligation of maintenance here consists of guaranteeing children an appropriate place in
which to live. Now, fulfilment of this obligation cannot, in any way, be conditioned by the absence
of a marital bond between the parents, since the source of said obligation is unique and to be found
in the relationship of filiation. The Court may, however, conclude that the question of

43
‘Cass.’ 25 May 1989, no. 2524, in Foro it., 1990, I, 633.
44
Trib. min. Bari 11 June 1982, in Foro it., 1982, I, 2032.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 50


constitutionality is unfounded “in so far as the principle invoked by the judge a quo – the protection
of the minor by means of allocation of dwelling, in addition to the determination of a sum owing for
the latter’s maintenance – is immanent in the system and should be implemented on the basis of a
systematic coordination of articles 261, 147 and 148 of the Italian civil code in correlation with art.
30 of the Constitution, without the need for repeal”. 45
With regard, on the other hand, to the hypothesis of conflict between cohabitants without children,
regarding the dwelling upon discontinuance of communal living, it would seem necessary to
conclude that the exclusive holder of the right of ownership of the dwelling, or of a personal right of
possession, is entitled to evict the other, possibly by discontinuing the rental obligation. Any rights
with regard to the dwelling in respect of the cohabitant who is not the owner nor the lessee can only
be recognised on the basis of a private agreement (for example, a loan for use contract), deemed to
be valid, not being based on unlawful grounds.

3.6 P ROPERTY ISSUES IN CASE A MEMBER OF THE UNMARRIED COUPLE DIES

3.6.1 In relation to the surviving member


There is no protection of the surviving cohabitant’s succession beyond the possibility of inheriting
through a will, without prejudice to the rights of legitimate heirs. In this respect the Constitutional
court declared the question raised with regard to articles 565 and 582 of the Italian civil code to be
unfounded in so far as said articles fail to render the spouse and the cohabitant equal for the
purposes of legal succession. This decision then specified that any extension to the cohabitant of the
rights due to the spouse on the issue of legal succession “would conflict with the rights of
succession law, which require the categories of those entitled to succeed to be identified on the
basis of certain and incontestable legal relationships”. It then declared inadmissible the same
question raised with regard to art. 540, 2nd paragraph, relating to the right of residence in the
dwelling used as the family home. Although recognising the praiseworthiness of protecting the right
of residence, it gave the legislator the choice between two possible forms of protection; that of a
real right of residence, placing serious limitations on the right of ownership of the heirs, and the
more moderate choice of a personal right of enjoyment, limited in time. 46

45
Cost court 13 May 1998, no. 166, in Giur. it., 1998, 1783. Court of Palermo, 29 July 1993, in Foro it., 1996, I, 122
attributed the right of residence over a jointly owned family home to the cohabitant with care and control of the
children.
46
Cost. court 26 May 1989, no. 310, in Giust. civ., 1989, I, 1782.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 51


3.6.2. Right of residence in the family home.
With decision no. 404 of 1988, the Constitutional court declared art. 6, 1st paragraph, of law
392/78 unlawful in that it fails to make provision, amongst those entitled to succeed in the title of
the rental contract in the event of death of the lessee, for the more uxorio cohabitant.

3.6.3. Compensation for damages due to the death of the more uxorio cohabitant by virtue of
the unlawful act of a third party.
According to traditional guidelines, jurisprudence has always excluded the right of the surviving
cohabitant to obtain compensation for damages for murder. A more recent directive from the ‘Corte
di cassazione’ seems aimed at rendering admissible the entitlement to compensation ex art. 2059
Italian civil code for both the moral injury suffered by the more uxorio cohabitant subsequent to the
death of the partner by unlawful act of a third party; and for the financial loss, which cannot,
however, be directly attributed to the death of the cohabitant. It will be up to those acting to claim
the compensation to prove the stability of the financial contribution that the other made when he/she
was alive (in the case in point the Court excludes

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 52


CHAPTER 4.
UNMARRIED COUPLES . P RIVATE INTERNATIONAL LAW

4.1. GENERAL ISSUES OF PRIVATE INTERNATIONAL LAW.

4.1.1. Public policy. Characterization.


It should, first of all, be noted that questions of this type have not been dealt with by Italian judges
since the reform law came into force. And so, the considerations advanced are the result merely of
interpreting regulations and putting forward hypothetical solutions to problems raised.
The Italian system has no systematic regulation of non-matrimonial unions, nor does it provide for
the possibility of marriages between homosexual couples. It is clear that for the questions examined
in the next few paragraphs, the problems of qualification and public policy are of decisive
importance. In fact, in dealing with non-matrimonial relationships, of various kinds, existing
abroad, the first thing the Italian judge must do is to qualify the case.
Let us remember, as has already been said with regard to the need to make an independent, and non-
homogenous qualification, within the scope of private international law, that it is necessary, in the
first instance, to establish whether or not it is possible to render a foreign unmarried relationship
equal to a married relationship.
More specifically, it must be established up to what point is it possible to apply the regulations
governing marriage and matrimonial issues to diverse, abstract hypotheses. In addition, an
evaluation must be made as to what extent foreign regulations can be applied without conflicting
with public policy. In this respect, it is possible to consider that an initial differentiation must be
made between non-matrimonial unions, matrimonial unions with characteristics that are quite
different from those of marriage under the Italian system (i.e. polygamous marriages) and unions
between persons of the same sex.
In principle, the fact cannot be ignored that non-matrimonial unions, characterised by temporal
continuity and affection, and recognised as such by a foreign system, which attributes said unions
similar effects to those of Italian matrimony, may find, by means of independent qualification,
regulation under our system of private international law.
As has already been said, the Italian system does not provide for systematic regulation of non-
matrimonial unions. Some importance is, however, attributed to de facto unions (more uxorio),

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 53


although this is limited to certain areas and particular hypotheses. 47 A specific regulatory reference
can, in addition, be represented by art. 2 of the Constitution that protects the personality of the
individual "within the scope of social formations". Consequently, it would not appear to be
necessary to place insurmountable obstacles in the way of qualifying a union of this type as a
"marriage" within the scope of private international law.48
More detailed solutions can, on the other hand, be advanced with regard to polygamous or same sex
marriages.
In the first instance, a problem of public policy may be raised, at least from the point of view of
recognition of the concept of marriage in so far as the latter is, not only different from what is
provided for by the Italian system, but also based on premises and principles that are totally
irreconcilable with the same. A correct interpretation of public policy mus t not, however, be an
obstacle to recognition of specific determined effects of a polygamous marriage contracted abroad
(for example, the status of a child or spouse within the scope of a marriage of this type must be
recognised).
Finally, with reference to the hypothesis of a same sex marriage, it does not seem possible, under
the current state of legislation, to include a case like this within the scope of matrimonial relations.
The limitation of correctly understood public policy, however, even in the light of recent directions
at a European level, aimed at preventing any discrimination between individuals based, amongst
other things, on their sexual orientation, is not, in itself, an obstacle to recognition of these unions.
In this case, however, relationships between individuals cannot be regulated by referring to
regulations on matrimonial issues, but rather in reference to regulations provided for on the subject
of obligatory relations.

4.1.2. Recognition of relationships between unmarried couples


Art. 28 of law no. 218 of 1995 lays down that "marriage shall be considered to be valid, in terms of
form, if it is considered to be so by the law of the place of celebration or by the national law of at
least one of the spouses at the time of celebration or by the law of the State of common residence at
this time". If a wider qualification of the concept of marriage is accepted, non-matrimonial unions
with effects that are, however, recognised by foreign systems and are very similar to those provided

47
In this respect, reference can be made, for example, to Constitutional court decisions no. 404 of 1988 (in ‘Gazzetta
Ufficiale’, Ist special series, 13 April 1988, no. 15) and no. 559 of 1989 (in ‘Gazzetta Ufficiale’, Ist special series, 27
December 1989, no. 52) which declared the unlawfulness of some specific legal provisions acknowledging the more
uxorio cohabitant’s inviolable right of residence.
48
Doctrine has pointed out "the existence of a gap in law no. 218, deriving from the lack of an appropriate conflict
regulation relating to so-called de facto unions": thus CLERICI, op. cit., p. 1060.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 54


for by our system of marriage, may also be recognised on the basis of this regulation.
On the other hand, marriages celebrated abroad, although valid in terms of form according to that
system, but different in substance (for example polygamous marriages), would conflict with public
policy when the time came to regulate the effects of said marriage. The eventuality of a same sex
marriage could not be qualified as a marriage, and so its formal validity according to the
aforementioned art. 28 could not be considered.

4.1.3. Admissibility of the "celebration" of a same sex "marriage" (or other relationship)
Under the current state of legislation in Italy, it is not possible to recognise the celebration of a same
sex marriage because this would certainly be in conflict with domestic public policy. There are no
obstacles where this relates to persons who have undergone a sex change in accordance with Italian
law.49

4.2. INTERNATIONAL JURISDICTION.

4.2.1. Separation of unmarried couples. International jurisdiction.


There are no specific regulations regarding international jurisdiction in the event of separation of
unmarried couples. The possibility of applying regulations laid down for the separation of spouses
arises from the preliminary problem of qualification. Legal provisions laid down for legal
separation may be applied to a relationship between individuals, which, irrespective of its form,
appears, in effects and substance, qualifiable as a matrimonial union. For these regulations see sub
2.2.1.2. In other cases, interna tional jurisdiction should be founded on general rules applicable as a
consequence of corresponding qualification of the case in point. The competent Authority will be
the competent court for the territory in accordance with articles 18 and subsequent articles of the
Italian code of civil procedure.

4.2.2. Property aspects of the separation. International jurisdiction.


The response to this question is similar to that laid down in the previous point. Remembering that
there are no specific regulations on the subject, if we are dealing with a case to which regulations
governing matrimonial property issues can be deemed applicable, the rules, as indicated sub 2.2.2
will be applied.
Consideration must, however, be given to the difficulty of discriminating between regulations
applicable to separation and divorce and those applicable to matrimonial property issues. In other

49
Regulations governing rectification of attribution of sex are laid down by law no. 164 of 14 April 1982, published in
the ‘Gazzetta Ufficiale’ of 19 April 1982, no. 106.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 55


cases, in which relations between the two individuals must be regulated within the scope of
obligatory relations, reference must be made to regulations laid down on this subject, within the
scope of general rules on international jurisdiction.
In all cases, the competent Authority will be the court with jurisdiction over the territory.

4.2.3. Relation between 4.2.1. and 4.2.2.


It should be remembered that, in the event of separation, in addition to the general rules of
jurisdiction provided for by Italian law on matrimonial property issues, there are two other
jurisdiction criteria i.e. Italian citizenship of one of the spouses and the celebration of the marriage
in Italy (art. 32 law no. 218/1995).
If it is thought that a property-related issue arising between an unmarried couple can be decided by
the Judge who would be competent if dealing with property-related issues arising between spouses,
it is also possible for this judge to have jurisdiction over the separation.
The possibility that questions relating to property belonging to individuals in a relationship with
each other may be dealt with by a judgement that concerns separation depends on the effects of the
application that is taken to law. If the application specifically appertains to the matrimonial bond,
and the property-related effects are directly connected to this issue, it is possible that they may be
dealt with together. Questions appertaining to the separation and division of property must, on the
other hand, necessarily be dealt with in an autonomous way, unless this is a case to which
regulations governing relations between spouses and, therefore, separation, can be deemed to apply.
In this event, the general rules laid down for cases relating to real rights and obligatory relationships
must be applied, depending on the case in point.

4.3. APPLICABLE LAW

4.3.1. Determination of the law applicable to the property regime


4.3.1.1. Under this hypothesis the problem of qualification is also preliminary.
If the case has characteristics such that it falls within the scope of matrimonial property issues or if
the couple have stipulated a contract, reference must be made to what has already be en stated on the
subject of matrimonial property issues. For this see sub 2.3.1.1. The law provided for by art. 30 law
no. 218/1995 will apply. The validity and effectiveness of any contract stipulated by the parties
must be evaluated on the basis of this law. Again see sub 2.3.1.1.1.
On the other hand, should the case have to be qualified as a relationship between foreign subjects,
questions relating to property will be resolved on the basis of the law applicable to real rights (art.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 56


51 law no. 218/1995),50 or else, depending on the hypotheses that may be considered (for example,
any obligations relating to restitution or dissolution of relations of a contractual nature), or on the
basis of the law applicable to contractual or non-contractual obligations (art. 57 and subsequent
articles of law no. 218/1995). 51
4.3.1.2. The response is similar to what was stated sub 4.3.1.1. In fact, only in the event that we are
faced with a case that can be heard under "matrimonial property issues", will reference be made to
the law applicable on the basis of art. 30. Otherwise, it will be necessary to qualify the case and
apply the regulations laid down for individual hypotheses (in this case real rights or non-contractual
obligations).

4.3.2. Scope of the applicable law


4.3.1.2. It is also necessary in this response to refer to two separate hypotheses i.e. if the Italian
judge is dealing with a question to which regulations governing matrimonial property issues can be
deemed to be applicable, it is necessary to refer back to what has already been said on this matter to
check the scope of this regulation. See sub 2.3.2.1. In other cases, regulations individually laid
down for specific hypotheses must be applied to specific cases considered during the life of the
"couple".

4.3.2.2. Likewise, when a couple separates, the regulations provided for by art. 31 of the law, for
which see sub 2.3.2.2, will only apply when said couple can be qualified as a union to which
regulations laid down for hypotheses of matrimonial union can be deemed to be applicable, .
For maintenance obligations reference is made to the Hague Convention, referred to by art. 45 of
the reform law. Should the conditions for applicability of art. 31 be lacking, relations will be
regulated with reference to regulations governing non-contractual obligations, depending on the
hypotheses, whilst questions relating to real rights will be regulated on the basis of article 51 and
subsequent articles of the law.

50
See sub 2.3.1.2.1.
51
For regulations provided for by art. 57 see sub 2.3.1.1.2. Non-contractual obligations are governed in Section XI of
the reform law. Art. 61 or art. 62 can be applied to the subject under consideration. The first regulation relates to
obligations arising from the law and establishes that "Management of other people’s affairs, unjustified enrichment,
payment of undue amounts and other legal obligations, not regulated otherwise by this law, shall be subject to the law
of the State in which the event from which the obligation derives, occurred". Art. 62 governs liability for unlawful acts.
And so the regulation lays down that "1. Liability for unlawful acts shall be regulated by the law of the State in which
the event occurred. The injured party may, however, request application of the law of the state in which the act that
caused the injury occurred. 2. Should the unlawful act involve only citizens of the same State, in which they are
resident, the law of this State shall apply".

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 57


4.3.2.2.1. What has already been said in the previous point can be cited.

4.3.2.2.2. In this case the specific reference is represented by art. 46 of the law 52.
At the time of death of one of the two individuals involved in the relationship, where this raises a
question dependent upon succession, the law provided for by art. 46 will apply. In this way,
reference will be made to the national law of the de cuius to assess whether the other party in the
relationship is due rights dependent upon succession, and in what measure. The only restriction
imposed by Italian regulations is the protection of the rights of legitimate Italian residents at the
time of death of the de cuius, should the succession relate to an Italian citizen.

4.3.3. Applicable law and changes to the property regime


4.3.3.1. Should art. 30 of the law be applicable, with reference to a change of connecting factor, see
what has already been stated sub 2.3.3.1.1. and 2.3.3.1.2. with reference to possible hypotheses of a
change in the national law or in the law of the place in which the married life was predominantly
located. If regulations governing real rights, or contractual or non-contractual obligations are
applied, it is not possible to use the hypothesis of a change in the connecting factor.

4.3.3.2. Where the applicable law is subject to change, solu tions to problems that may arise must be
sought within the scope of this law.

4.3.3.3. An agreement between two members of the couple can only bring about a change to their
matrimonial property regime if art. 30 of the law (for requirements and effects of such an
agreement, see sub 2.3.3.3.1.) is applicable or if regulations relating to contractual obligations can
be applied. In this event, there will be space for the autonomy of the parties within the limits
imposed upon said space by the regulations referred to by art. 57 of the law. It is necessary to
remember that Italian law also extends the scope of ratione materiae application of the Rome
Convention on contractual obligations, to hypotheses not expressly governed by this Convention.

4.3.3.4. No othe r possibilities of changes to the regime governing relations between the two
members of the couple are identified.

52
The regulation has already been given sub 2.3.2.2.2.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 58


4.3.4. Law applicable to publication of the property regime of an unmarried couple
4.3.4.1.
4.3.4.2.
There is no specific conflict settlement regulation for these hypotheses. If regulations laid down for
real rights have to be applied, with regard to publication, reference must be made to art. 55 of the
law. This regulation lays down that "the publication of documents for the constitution, transfer and
cancellation of real rights shall be regulated by the law of the State in which the property is located
at the time of drafting of the document".

4.4. RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS AND "PUBLIC" ACTS IN
RESPECT OF PROPERTY OF UNMARRIED COUPLES

4.4.1. The general rules on the effectiveness of foreign "public" acts and court decisions as
applied in the area of property of unmarried couples
4.4.1.1. With regard to sources and content of regulations governing recognition of foreign court
decisions and public acts, see references already made supra, sub 2.4.1.1.

4.4.1.2. Regulations laid down are, generally speaking, also valid for relationships between
unmarried persons. Within the scope of recognition of measures issuing from abroad, public policy
should be understood in an even more restrictive manner, And so, a foreign measure relating to
couples made up of unmarried persons can, as such, only with difficulty be deemed to be contrary
to public policy. In particular, this contrariety must be evaluated specifically in relation to the
effects that the measure should have under the Italian system. In fact, even if the measure cannot be
recognised as such, this does not mean that specific determined effects of said measure cannot be
effective, for example, in relation to the possibility of assigning an individual the status of child, or
of recognising specific effects regarding property belonging to the individuals in question.

4.4.2. Rules on the effectiveness of foreign "public" and private acts and court decisions
specific to the area of property of unmarried couples
4.4.2.1. No specific regulation has been laid down for this hypothesis.

4.4.2.2. No specific regulation has been laid down for this hypothesis. General rules governing
recognition of foreign court decisions and public acts will apply to amendments made by means of a
court decision or a public act. See what has already been said sub 2.4.2.2.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 59


4.4.2.3. With regard to foreign court decisions relating to the realisation of assets and division of
property belonging to the couple, general rules governing recognition of foreign court decisions will
apply.

4.4.2.4. There are no specific provisions for the hypothesis in question. See what has already been
said sub 2.4.2.4.

4.4.2.5. There are no specific problems for the hypothesis in question.

4.4.3. Practical significance of the rules set out under 4.4.1- 4.4.2.
4.4.3.1. No official data on the subject is available. At this time, the practical significance of these
questions can, however, with good reason, be deemed to be very limited.

4.4.3.2. As above.

T.M.C. Asser Instituut/UCL Matrim.Prop Italy 60

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