MARRIAGE AND FAMILY LAW

Marriage, separation and divorce under Italian law

If you are planning a German-Italian marriage or are already married to a German or Italian spouse, LAVVIT Italy lawyers can advise you. At first glance it is not clear whether German or Italian law applies to a German-Italian marriage. A prenuptial agreement can also help here. In the case of separation or divorce, especially in cross-border cases, both German and Italian family law can be applied to parts of divorce law.

Marriage under Italian law

Marriage in Italy can be celebrated in three ways according to Italian family law: civil marriage before the registrar, concordat marriage celebrated by a Catholic priest and Catholic marriage.

The statutory property regime in Italian family law is the “comunione dei beni,” a community of acquisitions. Here the spouses become co-owners of those goods that each spouse acquired during the marriage. However, it is possible to choose the “separazione dei beni,” a separation of property, when getting married in Italy.

Divorce under Italian law

If a marriage fails, the place of residence principle applies in the European Union. Divorce is based on the law of habitual residence. If one spouse lives in Germany and the other in Italy, that doesn't make it any easier. Who is faster can determine the place of jurisdiction and applicable law. According to Italian law, the separation must first be established; in Germany, two Italian nationals could also file for separation immediately. A separation established in Italy could be turned into a divorce in Germany.

Separation and divorce maintenance under Italian law

As long as the spouses only live separately, the economically weaker spouse can demand separation maintenance from the other. The separation maintenance depends on the marital living conditions.

Divorce maintenance can only be demanded in exceptional cases, because of child-rearing for example.

The amount of maintenance claims are in turn based on tables set by the judge.

Termination of the matrimonial property regime under Italian law

With the end of the marriage, the joint matrimonial property regime of the “comunione dei beni” also ends under Italian law. Then the joint assets must be divided, but inheritances and gifts must be deducted. Even with the separation of property, “separazione dei beni,” assets acquired in co-ownership, such as real estate, often have to be divided.

No pension equalisation under Italian law

Italian law does not recognize pension equalisation, i.e. the division of the pension entitlements acquired during the marriage. Therefore, Italian spouses who have acquired pension rights in Germany should file for divorce in Germany.

Child support under Italian law

According to Italian law, the spouse who has moved out owes maintenance to his children. If the spouse lives in Italy with the children, only an Italian court can determine the amount of maintenance. While in Germany the so-called Düsseldorf table determines child support with the force of law, the Italian courts are based on the Milan table, but are much freer than the German judges when it comes to determining child support.

Child contact under Italian law

When spouses divorce, they remain parents for life. The parent who has moved out of the joint marital home has the right and duty to have contact with his or her children. And the children have a right to contact the parent who has moved out. Traditionally, the parent who has moved out can take their children to their home every two weekends and see the children one afternoon a week. The alternating model is recognized under Italian law: the children live with their mother for one week and with their father for one week.

Custody under Italian law

In principle, the parents retain joint custody and must decide together on the life of the child. However, the parent with whom the child remains can apply for sole minor custody of the issues of daily living.

Divorce Consequences Agreement

The best solution to ending a marriage, also under Italian law, is to draw up an agreement on the consequences of divorce when filing for divorce. It is better for the spouses to mutually decide on the consequences of the divorce than for a judge to do so. A divorce settlement agreement is particularly useful for binational or cross-border divorces between Germany and Italy.