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Association momentanée
COMMISSION EUROPÉENNE
General Direction Justice and Home Affaires
Unit A3 Judicial Cooperation in civil matters
JAI/A3/2001/03
NATIONAL REPORT
ITALY
Giovanni COMANDE
_____________________________________________________________________________
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
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.
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.).
1.1.4.5. 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
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.
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.
4
Cass., 11 June 1991, no. 6622, in Foro it., 1992, c. 1854.
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.
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,
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.
1.4.1. 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.
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".
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.
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.
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.
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.
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.
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.
2.2.1.2. 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.
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.
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.
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".
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.
18
In this respect CONETTI, in Le Nuove Leggi Civili Commentate [Annotated New Civil Laws], 1996, p. 1176 ss.
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.
2.3.2.1.2. 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.
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
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.
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.
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.
2.3.3.3.2. 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.
2.3.3.4.2. No provision.
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.
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
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.
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.
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.
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.
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”.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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".
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.
4.3.3.2. 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.
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.
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.
4.4.3. 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.