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AN INTRODUCTION TO FAMILY LAW IN ITALY


by Marco Calabrese, Avvocato in Roma
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Italian Institute for Collaborative Law
ITALIAN FAMILY LAW AND THE CONSTITUTION
Aside from some cultural differences -that may still remain in place across the major Western
Countries- a few general principles must be taken into account when approaching the Italian
Legislation of the matter under review. Differences may remain unaltered, of course,
though a closer understanding can be granted to foreign readers. A brief Introduction to
the System of Family Law in Italy must therefore move from the principles expressed by
the Italian Constitution in 1948 and unchanged since then.
Art. 29 The Republic recognizes the rights of the family as a natural union founded on
marriage. Marriage is based on the moral and legal equality of the spouses within the limits
laid down by law to guarantee the unity of the family.
Art. 30 It is the duty and right of parents to raise and educate their children, even if born out
of wedlock. In the case of incapacity of the parents, the law provides for the fulfillment of
their duties. The law ensures the same legal and social protection to any children born out of
wedlock as that ensured to members of the legitimate family. The law establishes the rules
and constraints for determining paternity.
Art. 31 The Republic assists the formation of the family and fulfillment of Its duties, with
particular consideration for large families, through economic measures and other benefits. The
Republic protects mothers, children and the young by adopting necessary provisions.
From article 29 we may understand that marriage, which can only take place between a
man and a woman, represents a fundamental condition in order to grant families full
protection to both spouses and children.
As a result, the modification of this directive (i.e. the conception of introducing the same
rights for partners to unmarried couples) would require an amendment to the
Constitution and, thus, proceedings which would be far more complex than the simple
approval of a new Law by the Parliament.
This is, in part, why our Legislation does not yet provide the same rights to so-called
"civil partnership agreements.
In the absence of marriage, however, children born out of wedlock shall enjoy the same
rights as legitimate children, as per article 30 of the Constitution.
The Republic also protects mothers, whether married or not, through the necessary
provisions.
In the light of the foregoing (protection of the womans health) abortion is permitted by the
Law since 1978.

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Marco Calabrese is currently the President of Italian Institute for Collaborative Law, which was founded on January
18th 2010. This paper was revised for the III European Conference of Collaborative Professionals in Munich, June
2010
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However, unmarried couples cannot take advantage of special provisions. As of today, political
parties do not promise same-sex partnerships the same rights as married couples in the next
future.
As a result of the above, the importance of marriage still remains broadly prevalent in Italy,
despite recent social and cultural changes.
CIVIL MARRIAGE, RELIGIOUS MARRIAGE AND ANNULMENT, SEPARATION AND
DIVORCE IN ITALY AS PER THE ITALIAN CIVIL CODE
FACTS
A large number of families living in Italy (700,000 couples; source ISTAT census of 2001)
have experienced separation or divorce.
However, over the last decade, the number of unmarried, couples has increased
dramatically, for various reasons, thus triggering profound social problems for a number of
families, these being difficult to calculate. In light of the above, the necessity of granting to
unmarried couples some form of protection has become increasingly evident.
In addition, Italian families are shrinking: only half of couples will produce a child and
childless couples are no longer an exception. The traditional family is thus losing ground
(45% of working women between ages 15 and 64).
First of all, the rights and duties of married couples will be examined; the rights of unmarried
couples will follow at the end of this chapter.
FINANCIAL ASPECTS
Until 1975 the normal financial regime applicable to married couples was the separation of
assets of the spouses. From the Family Law Reformation Act onward, the normal
regime became co-ownership, therefore, as a matter of law, the nuptial agreement that
takes place before a State Officer results in co-ownership unless otherwise agreed to
between the spouses (art. 159 of the Civil Code).
This very important reform (aimed at protecting the weaker party: that was, in
the intentions of the rule-makers, a woman) does not recognize that, prior to marriage,
one of the parties, due to the intensity of the desire to marry or otherwise, may be
susceptible to the others demands, even if they are unreasonable.
A considerable number of couples now choose separation of assets when
marrying: this contract can by no means be questioned, nor can it be challenged before the
Court in case of divorce, nor be considered as affected by one partys exploitation of the
susceptibility of the other.
This is one of the reasons why millionaire divorces, taking place in Anglo-Saxon countries,
sound quite odd or even meaningless in Italy. Every sensible, well off, "old money
Italian family will push its heir/heiress into a Separation of Estates contract that cannot be
challenged or made void by any Court at any time, and for any reason whatsoever.
Another reason for this peculiar situation is the conception of "pride: very few spouses
would tolerate the mere suspicion of having married his/her Partner for money.
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..
Separation of Estates, when being sought by one Spouse/family of the Spouses can hardly
ever be opposed to often by reasons of pride. Also, as a matter of law, all commodities
purchased by the couple after the wedding belong to both spouses, unless the contractual
parties declare (as normally occurs in almost every Sale and Purchase deed) that such
merchandise was purchased through the exclusive use of money from only one spouse.
To complete the picture, all estates, legacies and donations pertaining to one spouse will
not be included in the union, unless otherwise specified by the legacy or donation contract
(179 cc.) which seldom happens. As a result of these regulations, and in the event of a
divorce, if one spouse is more affluent than the other, that spouse may be sentenced
to pay a high ancillary relief to the other spouse and children, but if the affluent spouse
has been prudent and well advised.. what is his/hers will remain his/hers, and safe.
CIVIL AND RELIGIOUS MARRIAGE
Ninety-seven percent (97%) of Italians were baptized Catholic at birth, although only 87%
would admit to being religious. Five percent (5%) of Italian inhabitants are Muslims, mostly
immigrants. Only 30,000 Italians are Jews and, in the `30s, just before the holocaust,
there were 44,000 Jews in Italy (1 / 1000 of the population at that time).
Thirty-eight percent (38%) of Italians are regular churchgoers. It is no wonder that
Religious Civil Marriages still outnumber Civil marriages by nearly 2:1
(163,000/86,000 as per the National institute of Statistics in 2007).
Due to the rigid separation of Church and State, a Civil Marriage was not acknowledged by
the Catholic Church, and vice versa, from 1865 to 1929 (the year in which the
Concordato took place: the Agreement signed between the Dictator Mussolini and the
Vatican State).
The trouble with this, was that the vast majority of marriages were religious at that time, so
that a huge number of families were ignored by the Italian State (unless the couples had
also married before a State Officer). The same couples baptized their children, but did not
declare their births to a State Officer!
In the year 1929 the Concordato settled this awkward situation.
Still today, a Catholic Marriage has no value for the State, and vice versa, but two
Celebrations are no longer required. Upon request from the Spouses, the State Registrar
may register a Catholic marriage.
In such a case the Catholic Priest will celebrate the marriage, as if he were a State Officer:
as part of the Ceremony, the Celebrant will read aloud the articles of the civil code, stating the
rights and duties of the Spouses, to the Partners and official witnesses.
Unfortunately, other Religions are a bit less equal: the registration of a religious, though
non-Catholic marriage, is always possible, but, in fact, entails more difficulties.
The most frequent form of marriage in Italy is by far this so called Matrimonio Concordatario
that still takes place in the majority of cases: 66% circa and is celebrated in Church but
registered by State Officer upon request. When a Divorce is sought with reference to this, this
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only be valid for Italian Law, the Christian Catholic Confession provides no divorce, in fact:
Marriage is a sacrament from a Religious point of view that will never be dissolved.
A religious Marriage, i.e. taking place only in Church can only be annulled by the Canon
Courts (that are not part of Italian Jurisdiction and must be defined, to all extents and
purposes, as a foreign Jurisdiction) with no consequences for an Italian Registrar: if
never registered, the annulment of a Marriage before God will only he relevant before Him
and believers.
But, beware, when the Spouses have chosen the "buy one/get two kind of celebration
the annulment of their Religious & Civil Marriage will wash away the Civil
registration as well, and the whole situation can get rather complicated (if a Churchs
Annulment of your Religious & Civil marriage is sought by your Partner on Religious Grounds
youd better see an expert of Canon Law. 'prestissimo!). Any marriage, religious or not, is
required to comply with Constitutional standards, i.e. all prior references, formerly provided
by the Law, to the husbands prevalent role in family life have been cancelled (art. 143
and subsequent thereto) over the last decades. Legislation is gender neutral, in fact.
SEPARATION AND DIVORCE: CONTRACTS AND ORDERS
In an absolute majority of cases, Divorce is the outcome of three-year separation period
(art. 3 of Law 898/1970). The Law provides for other cases of divorce (incestuous
relationships; total incapacity of the spouse(s); change of sex of one of the spouses and a
few others, life sentence etc.) but they are not very frequent.
As a matter of fact the dissolution of marriage comes as a result of two different lawsuits
taking place one after the other, the second (divorce) being often a mere photocopy of the first
(separation): though not as legal fees are concerned, which are doubled in fact.
Thus, our starting point will be the Separation proceedings, which rarely end with a
reconciliation of the partners. Contrary to what occurs in other Countries, a married couple
needs to seek Authorization from the President of the local Court (Tribunale) to live in a
state of separation, regardless of the number children, which may be equal to zero, co-
ownerships, which may be absent, or length of matrimony that might be that of one day.
This application must be filed with the Court (art. 706 civil procedure code):
With the Forum of the last common domicile of the couple, or
Where the defendant has established his/her new domicile-residence or is living
abroad
Where the applicant is residing;
Finally, in. the event that both spouses are living abroad, the application may be filed
with any Local Italian Court, regardless of its location.
Separation and divorce in Italy have no necessary `fault based proceedings: although the
acknowledgment of a fault of one party in the breakdown of marriage may still be important
in order to establish the amount of ancillary relief.
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Joint application for a so-called "Consent separation agreement can be filed with the
Court of Jurisdiction (Tribunale Ordinario), where either of the two spouses is domiciled (711
c.p.c.) without need of a real motive. Generally speaking, approval follows within a
couple of months.
No limits are provided by law to protect the weaker party, therefore an application for joint
separation (Separazione Consensuale) can be filed for any reason or for no reason.
The `permit to live separately is always granted by the Court, when the standards for
the childrens best interests are guaranteed by the separation agreement (158 c.c.)
The Agreement contained, in a Joint Application, when buried in a Consent Order of
the Court, cannot be challenged: approval by the Separation Judge - Family Law Court
(provided that the agreement respects the minimum standards for the minors) leaves no
room for a reconsideration of the spouse.
In other words, (see: Corte di Cassazione civile, sez. I, 08 Luglio 1998 n. 6664) consent
by the spouses, regarding the financial aspects of separation and divorce, is to be
considered 'non-retractable".
A Consent Order can be sought with the assistance of only one Lawyer (or no lawyer at all:
this is now controversial) as a result of what we commonly call as a "Jugular Agreement
(unconscionable agreement), whereby the consent of the weaker Party, although
apparently in agreement, might be affected by exploitation of needs, susceptibility, and undue
influence. The Judge can overrule a Consent Order pursuant to the Separation agreement only
when contrary to the interests of children. In all other cases the Court will grant the
Order, and the parties must accept the consequences of what they have freely and knowingly
agreed to.
This situation is similar to the Nuptial Agreement examined above: the Law does not take
into consideration that, during a time of conflict, one of the parties, wishing to escape
or otherwise, is frequently very upset and driven by irrational thoughts and can be
susceptible to the others demands, which are often unjustified.
This may and does occur quite frequently in cases of a , say, wife abandoned by her
husband for a younger Partner. The very peculiar Italian sense of female pride (see
above) will do the rest: very often Nuptial-Separation-Divorce agreements are not the result
of consent freely given, and stifle the weaker part sooner or later. Although a judicial case
cannot be re-opened, unless a major alteration of the financial situation of the Partners -
which must be superveniens (see 710 c.p.c. for the separation and art. 9 L. 898/1970 for
divorce) to the Separation Order (such a modification could allow for a very small
maintenance for the person who has fallen in need, if this is the case).
Contrary to the very short, and inexpensive, Joint Application, when the Separation or
Divorce Order is a result of contentious proceedings (13% on the total of the cases in 2007)
the average length of such proceedings is that of two/three years, i.e. if the parties can
afford it.
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The MORAL of it all? If a Client, only to escape costs and length of a lawsuit is
considering a Joint Divorce (or Separation) Application a good reply might be: 'Let me
study this matter in depth with my Colleagues: consequences may last for ever, and be
irretractable.
ORDERS AND AGREEMENTS ABOUT HOUSING, ALIMONY IN GROSS, PENSION PLANS,
TERMINATION BONUS
Children must be supported until they become financially independent (10-15% of
the annual income per child is generally considered an average support amount).
The house goes with the children, normally, until they become independent (art. 155
quarter cc.). This means that the `custodian partner (although, after the approval of
"affido condiviso or joint custody, L 154/2006, we should rather say: the parent with whom
the children, live habitually) will hold the family house until the 22
nd
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th
year of age of
the children (the age varies depending on the social class, studies, number of children,
etc.).
Joint custody is the normal Court provision (155 bis), except when there are serious
ground for challenging the request.
The family house must be released in favour of the legitimate owner as soon as the children
become independent, unless the "custodian is the owner or co-owner of the house.
But real co-ownership seldom occurs, for the reasons given above.
Finally, the "fault based divorce still has some importance in Italian Law. The Partner,
who is not to blame for the family breakdown, is entitled to personal "maintenance this means
not to mere alimonies but to a higher monthly amount for her/his support. These ancillary
reliefs can be paid for "all at once (Alimony in Gross) in the event of separation or divorce.
When Alimony in Gross is paid, no further financial redress can ever be awarded by the
Court for any reason whatsoever.
When a monthly payment is still ongoing (typically in Ancillary relief) at the time the
divorced partner retires, the not-at-fault partner may take advantage of the other partners
pension plan and also benefit from a share of his/her Termination Bonus.
The Civil Code provides other regulations regarding the Estate Succession of divorced
couples.
DE FACTO FAMILIES, COHABITATION AND CIVIL PARTNERSHIPS
As we have mentioned above, "de facto" couples (as opposed to married couples)
receive no protection from the Law, with few legal exceptions. On several occasions the
Constitutional Court stated that a tenant/landlord relationship in rental contracts will continue,
although the tenant - unmarried partner - died or simply walked away.
Also, the regulation examined above (regarding the family house remaining with the
childrens guardian when married couples separate) also applies to cohabitants since 2006.
Few other regulations, mainly local administrative regulations, grant basic aid to unmarried
couples.
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In general, mothers with natural children take advantage of special provisions (schooling,
health service etc.) but unmarried couples do not.
Of course, also this kind of relationship could be regulated by a contract which is only valid
to a certain extent, though. In fact, so called "agreements of future inheritance are void,
if not embodied in a valid Testament (458 c.c.). Additionally a written agreement providing
for a sum to be paid in case of an ongoing non-marital relationship or, on the contrary, in
case of dissolution of the unmarried couple, is likely to be annulled by the Court as an
"immoral contract (as occurs for example for the incitement to prostitution, etc). In two
words: PACS, Cohabitation Agreements, Civil Partnerships are not allowed.
Contrary to what occurs with a Spouse, a "de facto partner will never acquire rights to
partners properties, pension plan, termination bonus, life insurance, etc.
Same-sex relationships are simply ignored by the Law. Homosexuals cannot be
discriminated against by reason of their sexual inclination, neither at work nor in any other
aspect social life: no doubt about this. Some Political Leaders and at least one Regions
Governor are openly Gay, in the general indifference.
Italians -despite being rather a conservative People- tend to be very permissive in sex matters
that would raise scandals in other Countries.
In recent years more than one Government has stumbled on the topics of de facto,
cohabitations, same sex relationships, homosexual adoptions, ethical rules (s.a. fertility
therapies) for lack of a real political support.
Rome (Italy) May 30
th
2010
Marco Calabrese, avvocato

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