International Couples Dealing with the end of their marriage
Divorce is almost always an upsetting event, at the very least marked by disappointment and the loss of dreams and expectations. After all, nobody embarks on the journey of marriage with the expectancy of divorce. There are often legal, financial, parental, emotional, and practical challenges that require time, energy, and changes in responsibilities. It can be difficult to remember important details when emotions are running high.
In this blog post, we look at the legal repercussions and consequences on assets: joint current accounts, house, savings, etc. Everything must be put back on the table and discussed in order to manage the couple’s separation and divorce.
Where spouses have two different nationalities, the law of the State where the marriage took place will be enforced. Considering the specific case of Italy, couples married in Italy must choose between two matrimonial regimes: the regime of community of property “comunione dei beni” and the regime of separation of property “separazione dei beni”.
There are two types of legal separation in Italy. The first is consensual separation, which stems from a mutual agreement between spouses, and which is then approved by the court. The second is judicial separation, in which hearings and discussions are normally involved before an agreement is reached and the judge determines which spouse is responsible for the failure of the marriage.
Either spouse may file for Divorce in Italy on any of the following grounds:
Apart from ‘criminal law’ scenarios (which include, convictions and custodial sentences for serious offences perpetrated prior to or during the marriage convictions and cases where the person is acquitted on the grounds of diminished responsibility, cases where the offence is time-barred, and cases of incest where the objective requirement for criminal liability is missing), the possible grounds for divorce are:
- legal separation;
- dissolution of or a new marriage entered into by the other spouse abroad;
- non-consummation of the marriage;
- change of sex.
If the divorce is based on mutually requested separation, it may only be obtained after six months of continuous separation beginning on the date the spouses appeared before the court to file for legal separation. If the divorce is based on a separation that was obtained by one spouse alone, the waiting period is 12 months.
It is up to an Italian judge to pronounce the separation between foreign spouses residing in Italy at the time of the trial, even if the marriage was celebrated abroad.
This was established by the Sixth Section of the Court of Monza with sentence no. 3001 filed on 11 December 2018. The Court, in affirming the jurisdiction of the Italian judge in a case of separation of a so-called “international couple”, then recalled the content of EU Regulation no. 1259/2010.
According to this ruling, if it is proved that the parties are resident in Italy at the time of the proceedings, even if the marriage was celebrated in a foreign country, the jurisdiction of the Italian court must prevail pursuant to Article 3, paragraph 1 of Regulation No. 1259/2010: according to said regulation, the court where the spouses’ last habitual residence is located (if one of them still resides there) is competent to decide on divorce, legal separation and marriage annulment.
However, the jurisdiction on matters of separation and divorce of so-called “international couples” increasingly arises. This issue mainly concerns spouses of common nationality or of different nationalities who for various reasons move to a Member State of the European Union, often different from the one where they were married.
It should be pointed out that, in the Italian system, Law no. 218/1995 (Reform of the Italian system of private international law) regulates situations in which it is necessary to define which jurisdiction and laws should apply (Italian or foreign).
In particular, it states that, in case of legal separation and dissolution of marriage, it applies, “the common national law of the spouses at the time of the application for separation or dissolution of marriage” or, if this is not possible, the law of the State in which the couple’s married life is “prevalently localised”. Moreover, Article 3(2) states that the separation and dissolution of marriage, if not provided for by applicable foreign law, is governed by Italian law.
Moreover, Article 3 of said regulation provides that the courts of the Member State of which the spouses are nationals (or, in the case of the United Kingdom and Ireland, the domicile of both spouses) or those in whose territory the spouses are located, have jurisdiction in matters of divorce, legal separation and marriage annulment:
- the spouses’ habitual residence or the spouses’ last habitual residence if one of them still resides there, or
- the habitual residence of the defendant or, in the case of a joint application, the habitual residence of one of the spouses, or
- the habitual residence of the claimant if the claimant has resided there for at least one year immediately prior to the application, or
- the applicant’s habitual residence if the applicant has resided there for at least six months immediately prior to the application and is a national of that Member State (or, in the case of the United Kingdom and Ireland, the applicant is resident there).
However, it is useful to specify, for the sake of completeness, that the Court of Justice of the European Union has dealt with the concept of ‘habitual residence’ in relation to the jurisdiction rule on parental responsibility.
According to the judgment in Case C-523/07, habitual residence corresponds to the place indicating a certain integration into a social and family environment. From the perspective of the Court of Justice, therefore, it is for the competent national court to determine habitual residence, taking into account the particular circumstances of each individual case.
A clearer and more complete framework on separation and divorce in Italy has been provided by the EU legislator with the Regulation 1259/2010, which contains a single set of rules aimed at determining which national law should be applied to divorce or legal separation proceedings concerning spouses of different nationalities, who live in a country other than their country of nationality or who no longer reside together in the same EU country.
Regulation No 1259/2010 is currently applied in the 17 EU countries participating in enhanced cooperation in this area and which are therefore bound by the application of uniform legislation: Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia, Spain, Lithuania, Greece and Estonia; it should be stressed, however, that it is universal in scope and, consequently, the application of a conflict rule may lead to the implementation of the law of a Member State that has not participated in enhanced cooperation or the law of a third country may be applicable beyond Europe. As regards Italy, therefore, within the limits of its scope of application, it replaces Article 31 of Law No 218/1995.
Article 5 of Regulation no. 1259/2010, also known as Rome III, gives the spouses the right to designate, in writing, the law that may be applicable in the event of legal separation and divorce in Italy, provided that the law chosen is one of the following:
- law of the State where the spouses have their habitual residence at the time the agreement is concluded;
- the law of the State where the spouses had their last habitual residence, insofar as one of them still resides there at the time the agreement is concluded;
- the law of the State of which one of the spouses is a national at the time the agreement is concluded;
- if applicable, a choice of law rule (lex fori) provides that the law of the jurisdiction or venue in which a legal action is brought applies.
To be valid, the agreement referred to in Article 5 must be in writing, dated and signed by both spouses and may be concluded and/or amended at any time, but at the latest by the time a court is seised (decides that the case falls within its jurisdiction).
However, in the absence of an agreement between parties, in accordance with Article 8 of the Rome III Regulation, legal applicability will be determined by:
- the law of the State in which the spouses have their habitual residence at the time the court is seised;
- the law of the State in which the spouses habitually reside, provided that this period has not ended more than one year before the court is seised, if one of them still resides there at the time the court is seised;
- the law of the State of which the spouses are nationals at the time the court is seised;
- the law of the State in which the court is seised.
As you can see, there are so many aspects to take into consideration when deciding which law applies to the divorce of international couples. Each case is different and will be determined by specific circumstances. It would be advisable that you seek professional advice before taking a decision. An experienced lawyer will be familiar with cross-border cases, and the complexities which make these divorces so difficult.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.