27 August, 2017

Foreign spouses: separation and divorce in Italy if they are resident in Italy

Also two foreign spouses may file for separation or divorce proceeding in Italy with the legal advice of an Italian qualified lawyer specialized in family law if they are resident here, otherwise the country of their common citizenship shall be necessarily chosen.

 

The proceeding of separation (separazione) or divorce (divorzio) can be conducted in Italy when the spouses, also if foreigners, are resident in our country. When husband and wife are foreigners or one of the two has 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, also in case there are children. For these reasons, it is appropriate to appoint an Italian qualified lawyer specialized in family law also internationally and may advise the client about the comparison between the foreign applicable laws and the Italian applicable law.

 

Let’s imagine two couples in deep conjugal crisis. The first couple lives in Italy, but it is made by two foreign citizens. The second one is made by two Italian citizens, but they reside abroad since many years. In both cases, in order to understand where the legal proceeding of separation (separazione) and divorce (divorzio) should be held, it is necessary to analyse the case pursuant to Italian law.

 

Jurisdiction and applicable law: two different concepts to conduct the legal proceeding in Italy

 

Firstly, it has to be clarified that the jurisdiction identifies the country and the Court where the proceeding shall be held and therefore it does not identify the law, which shall be applicable during the legal proceeding.

 

A legal proceeding held in Italy does not necessarily provide for the application of the Italian law, because in order to identify it many criteria regulate the matter, e.g. also the possibility that the spouses may choose by themselves the applicable law, thanks to EU Reg. No. 1259/10.

 

In order to understand where the two couples will be able to start the legal proceeding, the first criterion is the one of the usual residence (residenza) of the couple, residence intended like the place where mainly are carried out the interests and the life of the spouses. The other criterion, to which it is possible to turn to only in a second time, is the one of the common citizenship (cittadinanza) of the spouses. Practically, the tie that the spouses have with respect to the country where they live is considered more important in comparison with the tie that they have with respect to the country of their common citizenship.

 

To fully understand the situation, let’s analyse again the two couples we imagined at the beginning of our article. The foreign husband, who is residing in Italy since at least one year, is able to file for separation proceeding to get a separation from his foreigner wife residing in Italy, as the criterion of the mutual customary residence has the priority. Analogously, also a separation between two Italian citizen spouses, who reside abroad (in two different countries), could be filed in Italy as both spouses are Italian citizens and they have a different usual residence.

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.


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