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Married couple buying a house under one name in Italy: applicable financial regime.

In Italy spouses can choose between two default[1] matrimonial financial regimes: community of properties/assets (comunione dei beni) and separation of property regime (separazione dei beni).

Married couple buying a house under one name
Married couple buying a house

If no matrimonial regime option is expressly made by both spouses through a notarial deed or upon marriage celebration, Italian married couples’ finances and assets are regulated under the community of property regime.

What does community of property/assets (comunione dei beni) mean?

Under the community of property/assets regime (comunione dei beni), all the goods purchased after the marriage, with a few exceptions, are owned by both spouses in common, 50% each, even if the purchase has been made by one spouse only. This is valid for movable goods as well as immovable goods, even if only one spouse appeared in front of the notary, and even if he/she declared to be married under separation of property regime.

Under separation of property regime, in order to purchase goods in the name of both spouses, the spouses are expected to complete the purchase together.

On the contrary, under the separation of property regime (separazione dei beni), each good is only owned by the spouse who purchased it  (meaning: remember to keep all the receipts!).

What financial regime is applicable to foreign spouses or married individuals who purchase a property in Italy?

Having said the above, what happens when foreign couples or married individuals purchase goods (properties) in Italy? What matrimonial regime is applicable to them? What are they expected to do in order to purchase the property in the name of one spouse only or purchase the property in the name of both spouses?

The above are questions not easy to answer and all too often even Italian Notaries, if they are not experienced with international transactions, do not approach the problem correctly. As a matter of fact, giving the right answer to these questions is a long-debated matter between Italian Notaries.

Recently the EU issued two regulations (EU Reg. no. 2016/1103 and no. 2016/1104) aimed at permitting spouses to choose the law applicable to their marriage, including the government of their assets. However, the regulations above only entered in to force starting from 29 January 2019. For marriages and registered partnerships that took place prior to this, the law of the spouses’ countries is applicable.

One of the common mistakes when it comes to assessing foreign spouses’ financial regime is to assume that the applicable matrimonial regime in Italy will be the same as (or the most similar to) the regime they adopted in their home country. For example, if in the home country each spouse is the sole owner of the goods purchased without the participation of the other spouse, you might think that in Italy the separation of property will apply.

This is not always the case, especially if the spouses are from Common Law countries, such as UK or USA.

The first thing that the legal profession will consider is the jurisdiction applicable to matters regarding properties in the spouses’ home Country.

Many Common Law countries provide that any matters regarding properties located abroad shall be regulated under the jurisdiction and as per the law of the country in which the property is located (in latin this is known as, lex rei sitae), no matter if the owner(s) are from another country.

Therefore, if the spouses’ home Country legal system provides for the application of the lex rei sitae, the Italian law will govern which matrimonial financial regime is applicable to the purchase of the Italian property.

This means that unless an express statement regarding ownership was properly made by means of a Notarial deed, the community of property regime will apply to properties purchased in Italy by one spouse only.

As mentioned above, it is possible that in the Notarial purchase deed (rogito), the spouse who purchased the property declared, in good faith, that he/she was married under separation of property regime but made that statement without having a prior notarial agreement reflecting the chosen regime for Italian assets.

In similar cases, if a matrimonial financial agreement was not made or made incorrectly, problems can arise in the future, at the time of property sale for example, where the spouse (or, the ex-spouse) who at the time of purchasing the Italian property was not present at the signing of the purchase deed but is nonetheless a 50% co-owner of the property. This owner must be a party to any future deed of sale due to the application of the default community of property regime. We understand that for anyone not used to matrimonial financial regimes, Italian property matters are not simple and yet, they are extremely important. If you are interested in checking the effects of your property purchase under Italian jurisdiction, or have any questions on the above, please get in touch.We are here to help.

[1] Meaning: financial regimes regulated directly by the civil code.

The spouses can also adopt different financial agreements upon or after marriage, by means of a notarial deed.

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