What may be the validity of a marriage between Italians, or between foreigners residing in Italy, or else between an Italian and a foreign citizen, if celebrated abroad? Is it possible to obtain its dissolution in Italy?
It is increasingly common to hear about marriages celebrated abroad between Italian citizens, or between foreign citizens residing in Italy, or between an Italian and a foreign citizen, or else between partners with more than one citizenship, including the Italian one.
These marriages are regulated in Italy by law 218 of 1995, integrated by European Regulation n.1259 of 2010.
As for the conditions to marry, each spouse is subject to his/her own country’s regulation.
In order to be valid in Italy, a marriage celebrated abroad must meet the following essential requisites according to Italian law:
- Appropriate age: according to art. 84 of the Italian Civil Code “underage people cannot marry”;
- Capacity to marry: according to art. 85 of the Italian Civil Code “a person who is legally interdicted for mental incapacity cannot marry”;
- Not being still married to another person: art. 86 of the Italian Civil Code integrated by L.20 of May 2016 n. 76, provides that “a person who is still married or in a previous same-sex registered union cannot marry”.
- Absence of family bonds or distant family relationships: art. 87 of the Italian Civil Code (and subsequent amendments) specifies that marriage cannot take place among:
- lineal ascendant and descendant
- brothers and sisters, having the same parents or just one parent in common
- uncle and niece, aunt and nephew;
- relatives by marriage; the prohibition is also valid in those cases where the family bond derives from a marriage which is considered invalid or has been dissolved or whose civil effects have been terminated;
- second degree collateral relatives in law;
- the adopting parent, the adopted child and his/her descendants;
- children adopted by the same person;
- the adopted child and children of the adopting parent;
- the adopted child and the spouse of the adopting parent, the adopting parent and the spouse of the adopted child.
Locus regit actum
Transnational marriages – based on the principle locus regit actum (meaning that the law of the place where facts occurred must be applied) – are regulated by the laws of the place where they are celebrated but must as well comply with other regulations as for the daily married life.
A marriage which is celebrated abiding by local laws – as long as they are not in contrast with the ones of the place of origin – is fully-fledged valid in Italy, with all that this implies.
During the phase called exequatur – meaning the judicial procedure which is necessary to have a foreign provision recognised in another country – the Italian judge must verify the correct form of the marriage and its compliance with the law but has no power of verifying the content of the relationship.
A marriage celebrated abroad is recognized in Italy through the procedure called exequatur. Without this necessary step, it cannot be registered on civil registers, yet it maintains its validity.
According to Italian law, the transcription of a marriage does not make it effective but certifies it, considering that the marriage celebrated abroad has immediate relevance.
If a marriage is not registered, the only consequence spouses may incur is a sanction, because in Italy the registration of marriage into civil registers is compulsory.
The Relationship between Spouses
The relationship between two spouses married abroad is regulated by the laws of the country they have in common or – in case they have different nationalities – of the country where they reside as a married couple.
The same criteria are applied to the economic relationship between the spouses, though they may decide that the laws of the country of origin or of residence of at least one of them are to be applied.
In order for this decision to be valid, it needs to be specified in writing and signed by both spouses.
More Marriages Equal More Divorces
Transnational marriages mean transnational divorces. Law n.218 of 1995 regulating marriages is also applicable to divorces, as well as the European Regulation 1259 of 2010.
In addition to the marriages celebrated abroad having consequences in Italy, Italian law also regulates the divorces of foreign citizens residing in Italy or Italian citizens residing abroad.
In case of separation/divorce of a couple where at least one of the spouses is a foreign citizen, the law of the nation in common or of the nation where the couple have spent most of their married life has to be applied.
Separation preceding divorce is provided for by Italian law, but many countries do not include it in their legal framework. For this reason, individuals who, although residing in Italy, entered into marriage in a state that allows reaching divorce without undergoing separation can divorce before an Italian judge by mutually requesting an end to the marriage without prior separation.
When there is agreement between the almost-former spouses, the chances of finding a mutually beneficial common solution increase, namely opting for the least “complicated” law among the possible choices.
It is also true that Italian divorce law has undergone significant changes in recent years, substantially reducing the timelines. For further details, reference is made to the reading of “Cartabia Reform for Separation and Divorce” and “The Divorce Becomes “Instantaneous” after the Cartabia Reform”
In case of consensual divorce, it is possible to choose among:
- the law in force in the country where the couple have spent most of their married life.
- the law of the country where the couple have resided in their last period together if at least one of the spouses still resides there when they apply for divorce.
- the law of the country of which at least one of the spouses has the citizenship at the moment of the beginning of divorce procedures.
- the law of the country where the divorce application is filed.
In case of judicial divorce, the choice is among:
- the law of the country where spouses have their usual residence.
- the law of the country where spouses last resided together, unless more than one year has passed from the time they resided there to the divorce application and provided that one of the spouses still resides there.
- the law of the country of which both spouses are citizens at the moment of their divorce application.
- the law of the country where the divorce application is filed.
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