Statistics show that
in Europe-and Italy, in particular-marriages between people of different
nationalities are increasing. Accordingly, the number of international
separations and divorces is also increasing. As you can imagine, this is not
the happiest aspect of law that I have written about for The Florentine, but it is unfortunately a topic that may affect
some of its readers.
If I get married in
Italy, can I get divorced in the United States? Can I enforce my pre-nuptial
agreement in Italy? Do I have to wait the three years of separation required by
the Italian legal system in order to get my divorce certificate, or can I apply
in the country of my spouse, where divorces are finalized in a few months? Many
of the expatriate clients that I assist regularly with asset management ask
such questions.
Indeed, international
divorce and issues related to child custody are two of the most discussed and
controversial aspects of the relationships between people from different
countries. International divorce is quite complicated and depends on many
variables, but the legal framework that governs the dissolution of an
international marriage involves three main issues:
1. Where the spouses
will file for divorce.
2. What law will govern
the divorce procedure and the subsequent divorce agreements.
3. Recognition of the
foreign divorce decision in Italy.
Where will the spouses file for divorce?
Each nation (and, in
some cases, within it, each state or province) has its own legislation that
governs separation, divorce, maintenance of spouses and children, custody,
guardianship and other family law matters. In the European Union, when the
matter involves the dissolution of a relationship between persons of different
nationality, the member states are governed by Regulation 2201/2003, which went
into effect on March 1, 2005. This regulation harmonizes the European Union
rules that are applicable to member states (except Denmark) of private
international law, in relation to the ?jurisdiction,’ i.e., which member
state’s courts can hear and decide over a divorce.
*<
It is difficult to
give advice about where to apply for a divorce, because such a decision must
take into consideration the priorities of the partners (e.g., to be free as
soon as possible, to obtain the best protection for oneself and one’s children,
to provide for-or prevent-continued contact with the children). Thus, each case
must be examined carefully.>>
What law will govern the divorce procedure and the subsequent divorce
agreement?
Because not all
countries provide the same protections of women’s rights, child custody,
alimony and the like, the choice of the law to apply to the divorce can be a
very delicate matter. Therefore, each party will probably ask the court to
regulate the divorce using the rules that better protect his or her interests.
In Italy, the choice
of the law about divorce is regulated by article 31 of law 218/95, which states
that if the partners have different nationalities, the divorce process will be
governed by the law of the place in which the couple lived the majority of the
time before the divorce. So, consider, for example, an American who resided
with her husband in Italy for most of the marriage. Could she ask an Italian
judge to apply the law of her nation (or state) because it may better protect
her interests? If that question were to be presented to an Italian judge, it is
likely that he would apply the Italian law, because Italy is the place where
the couple habitually lived together during their marriage.
Other options. This does not exclude the possibility of lodging a
divorce petition in a country where the couple did not habitually reside but
where at least one has some connection, such as the country of origin of one of
the spouses. The person will have to investigate whether the law of that
country admits a divorce based on the nationality of one of the two partners or
another form of connection. Note also that if the divorce is filed in a country
that does not have any connection with the place in which the couple lived
(maybe it is faster or cheaper to get divorced there), the other spouse could
oppose it on the grounds that the court does not have the jurisdiction to
decide. But if the parties do not have young children and agree on divorcing
quickly, amicably and with mutual consent, they might have more than one option
to choose from.
Recognition of a foreign divorce certificate in Italy.
Just like with
Italian couples, if one spouse is Italian and the couple has obtained a divorce
in a foreign country, in order to have the foreign divorce recognized in Italy
(and legally marry someone else), the divorce decision must be registered in
the Ufficio di Stato Civile (Italian civil records office).
In many other
countries, divorce procedures, especially if there is mutual consent, can be
very fast. However, in Italy, divorce is a two-phase process. First, the couple
needs to get legally separated (passing by a first judge’s decision) and then,
after three years of legal separation, the couple can file for divorce (which
requires a new judge’s decision). Thus, each needs to wait at least four years
before they can legally marry again.
This slower process
has, obviously, some negative aspects, but one of the biggest positive aspects
is that the Italian system is very protective of the rights of the weaker party
(very often the woman), and for that reason many international divorces are
decided in Italy.
In the past, the
Italian authorities and judges were strongly opposed to recognizing foreign
divorces from abroad: the so-called fast-track divorce was considered a sneaky
route around legal principles that aimed to protect the interests of the
family. But in recent years we have noticed a new tendency in our courts and among
officials of the Stato Civile to recognize the faster divorce procedures
obtained in foreign countries, provided the foreign system protects the parties
as much as the Italian system does and the foreign decision complies with
conditions stressed in the law 218/95 (articles 64, 65, 66). If these
requirements are respected, it is likely that the foreign divorce will be
registered and the couple will be considered legally divorced in Italy.
A few positive thoughts to conclude.
As legal advisor to
many international clients and, most importantly, as the fianc? of a wonderful
American woman who I will soon marry, I am convinced that having a relationship
with a person from a different country and culture, who has a different
approach to life, can be one of life’s most exciting and fulfilling
experiences. However, it is important to think hard, and in advance, about
whether what you have in common will be able to help you when all those
differences that you now love so much will eventually become an obstacle to the
life that many ?local’ couples can have. Follow your heart, but think very
carefully in advance about what you are about to do.
And remember that
should the relationship seem to founder, divorce sometimes is not your best
option. Ask for help before you even start considering it.
*Article 3: Jurisdiction shall lie with the
courts of the Member State (a) in whose territory:1) the spouses are habitually
resident, or 2) if the spouses no longer live in the same Member State, in the
Member State in which they were last habitually resident, insofar as one of
them still resides there, or 3) the respondent (the party who didn’t file the
request for divorce) is habitually resident, or 4) in the event of a joint
application, either of the spouses is habitually resident, or 5) under some
circumstances, in the Member State in which the applicant is currently residing
(he or she must have resided there for at least six or 12 months depending on
the case); (b) of the nationality of both spouses (in the case of the United
Kingdom and Ireland, of the ?domicile’ of both spouses).
