22 September, 2017

When the foreign law cannot be implemented in Italy

EU Reg. No. 1259/2010 (Regolamento UE 1259/2010) allows to people, who live in a different country with respect of their country of origin, to choose which one to consider as the applicable law in case of separation (separazione) or divorce (divorzio) legal proceedings. However, not always what mentioned is applicable. Maybe by means of an example we may explain more clearly.


Let’s suppose that the two spouses’ country of origin is a country where polygamy is allowed, and let’s suppose that they got married there, and that it is the third marriage of the husband. For many reasons, the couple move to Italy, and the husband leaves the other wives in the country of origin. After some time, the wife begins to go out with another man and after several months she decides to tell the husband that she committed adultery and her intention to request for a divorce. For economic reasons, and also for a quicker timing, the wife would like to get a divorce in Italy, without coming back to her country of origin, but this request could be more complicated than what was expected by the wife.


The limits of EU Reg. No. 1259/2010


In order to protect the principles and the law in full force and effect in the various countries of the European Union and in order to avoid that these countries are forced to implement foreign laws and regulations, which are unacceptable and inconsistent with the domestic law, the EU Reg. No. 1259/2010 provides for three limits which do not allow the application of the foreign laws.


It is not allowed to apply a foreign law which does not provide for the divorce or which provides for the divorce but only under discriminatory conditions for one of the two spouses. It is a limit aimed to protect the equality of rights between man and woman, also impeding for example that could be allowed the implementation of a law, which recognizes only to the husband the right to divorce.


The second limit provides that a foreign law cannot be the applicable one if one of the two countries does not acknowledge the divorce or if the marriage is considered as invalid. We refer, for instance, to the marriage between people of the same sex, which is not allowed in Italy: any request by one of the spouses in Italy, who got married abroad, would not be implemented in Italy.


The third limit provided by the EU Reg. No. 1259/2010 is considered for any cases where the application of any foreign law may be in conflict with the principles of public order (ordine pubblico), i.e. in conflict with the fundamental principles typical of each country.


The marriage of the couple above mentioned could not be valid in Italy, because in Italy polygamy is against the law. Consequently, the request for divorce would be rejected by the competent Italian Court because it is connected to a marriage, which is invalid pursuant to Italian law. The couple, therefore, would be forced to divorce in their country of origin.


When husband and wife are either foreigners or their country of origin is different, it may be necessary to carry out an examination of the possible applicable law to the specific case also in order to pinpoint the most favourable applicable law. For these reasons, it may be appropriate to ask for legal advice to a law firm, when its expertise includes also a depth knowledge of international law, allowing the law firm to advise the client with respect to a comparison between the foreign applicable law and the Italian law.

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