It is appropriate that a foreigner may be aware that in Italy prenuptial agreements (accordi prematrimoniali) are not allowed. However, in the Italian Parliament a bill of law is currently under examination with the specific purpose of ruling about prenuptial agreements matter. As it happens about any material matter, also concerning these agreements a widespread discussion is currently occurring. Other than the mere ideological dispute (e.g. the anxiety of many people of obstructing the “commercialisation” of the marriage and of the possible future divorce), at stake there is still a crucial matter: the possibility to allow agreements which may govern future economic and patrimonial relationships between the spouses, even earlier than the beginning of the couple crisis.
These agreements have been allowed, and also abundantly utilized, in the Anglophone world since a very long time ago: we think about how often we may read on magazines concerning millionaire agreements undersigned by Hollywood stars at the moment of celebrating their wedding in view of a possible future divorce.
Purpose of prenuptial agreements in force in foreign countries
It is true that, when a couple decide to get married, they rarely take into consideration the possibility that in the future their relationship may terminate. It is a possibility that usually is simply not taken into consideration, because the feeling is very strong and both spouses are convinced that it may last forever.
The real problems may occur when the affection gets weaker: the interests of the couple risk of succumbing crashed by egoism and selfishness, which may undermine the fundamentals of the relationship. When the single personal interest prevails, the management of any unexpected event becomes more and more complicated. Then husband and wife are forced to face the situation.
Facing the awareness of the failure of their marriage, the separation (separazione) often becomes the moment in which each spouse, dragged by grudge and anger, claims his/her own rights and interests, unburdens any liability on the other spouse.
In this situation, it is easy to discover how useful it would have been to have already ruled all possible disputes by means of a prenuptial agreement, which is aimed to make the end of the relationship less contentious. These agreements, indeed, provide that husband and wife may rule together, at any time, their patrimonial relationships with the specific purpose of a possible future separation or divorce.
The foreign countries, which admit the regulation of the prenuptial agreement, have understood that a negotiation can be obtained, more quickly and more easily (as well as more politely), when it is previously achieved in a period of serenity of the couple, before or after the wedding, and not when the relationship is already in crisis. In these moments, whatever negotiation, connected to economic and patrimonial matters, can be compromised by mutual requests.
The regulation that prenuptial agreement could obtain in Italy
The content of this agreement could, for example, rule a possible recognition of a sum of money (either a recurring payment or a lump-sum payment) as well as could rule some matters concerning the sustenance of the children or the division of common assets. It may never rule out, instead, some specific compulsory rights and obligations that arise out automatically of the marriage, like for example the right to receive alimony (alimenti) or child support (mantenimento) and the mutual obligation of moral and material support.
In accordance to current bill of law, when prenuptial agreements provide for clauses connected to children the authorization of the competent Court would be in any case compulsory, so that the Court may verify if the children are properly protected by these previous decisions already agreed by the spouses. The agreements could be valid only if executed by means of a public deed before a Notary and two witnesses, in order to guarantee that the intentions of both spouses are given in a state of complete freedom and awareness.
It is worth noting that recently Italian Courts are leaving spouses more free to decide upon their future economic and patrimonial matters during the separation and divorce proceeding, but an express regulation as in the above indicated way would have a great impact on our current system of law; therefore, it is positive that, as of today’s date, there is an open-mindedness in this direction and that there is an ongoing serious discussion which (we hope) may finally lead to its final accomplishment.