How can foreigners choose the law applicable to the separation to the divorce in Italy

The EU Regulation No. 1259/10 has introduced in Italy for foreigners the possibility to choose the law applicable to the separation (separazione) and to the divorce (divorzio) preferably with an advice by an Italian qualified lawyer specialized in family law. This Regulation has introduced a great innovation regarding family law and it is addressed to husband and wife who could face difficulties concerning the choice of the law applicable to their separation and divorce. Similarly, the Regulation intervenes to support those couples who would otherwise face difficulties and expenses due to the execution of a proceeding in a country, which is different to the one of their residence.

Who, for example, could exercise the right to choose the law applicable to the separation or divorce legal proceeding in Italy:

• An Italian citizen and a foreign citizen, both residing not in Italy but abroad;
• Two Italian citizens, both residing not in Italy but abroad;
• An Italian citizen and a foreign citizen, both residing in Italy;
• Two foreign citizens, both residing in Italy.

What Regulation No. 1259/10 provides for foreigners

Regulation No. 1259/10 leaves to the couple the possibility of choosing the law that they would like to apply in any case of conjugal crisis.

Husband and wife can choose to apply the law of the country of their current residence (residenza) or of the country of their latest common residence, provided that at least one of the two are still residing there. As an alternative, they can decide to be governed by the law of the country of which they are citizens (cittadini) or even to the law of the place of jurisdiction, which means the law of the place where the legal proceeding has begun.

In order to be a valid decision, it is necessary that the spouses sign a declaration (dichiarazione) that indicates the applicable law: this is needed, because it is necessary that they should know the juridical and social consequences that they will face making that choice. The declaration shall necessary be executed at any time after the wedding, it is sufficient that it will be executed previous to the separation or to the divorce.

A similar freedom of choice guarantees to husband and wife a great autonomy and, above all, it is the natural consequence to practical and concrete needs. Husband and wife could request a separation before an Italian Court, without having to face the difficulties of a legal proceeding in a foreign country. Moreover, in case the applicable law may allow it, the spouses could immediately get a divorce without having to previously get a separation as it usually happens in Italy or, furthermore, they could decide to request the effectiveness of their pre-nuptial agreements, a possibility still not allowed in Italy pursuant to Italian law.

When husband and wife are foreigners or one of the two is a foreigner who married an Italian citizen, or their respective country of origin is different, it may be necessary to carry out a legal analysis about the applicable laws to the concrete case, also to find the most favourable applicable law, even in case they have children. For these reasons, it is appropriate to appoint an Italian qualified lawyer specialized in family law also internationally, that may advise the client about the comparison between the foreign applicable laws and the Italian applicable law.

Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.