15 August, 2017

The implementation of foreign laws and its compliance with the Italian law may have some limits: the Moroccan case

Acknowledging in our Italian Courts many different foreign laws may bring inevitable moments of debate and comparison among principles of other countries, which may collide with our principles.

The principle, already recognized in Italy, of allowing the implementation of foreign laws in legal proceeding before Italian Courts may have some limits: in particular, we would like to take into consideration what may happen to a Moroccan citizen who would like to divorce pursuant to his law of origin.

Let’s consider the situation of a couple from Morocco who, after an initial cohabitation period in Morocco, move to Italy with their three sons. When love breaks down between the two spouses, they decide to split and they request the implementation of Moroccan law in the Italian legal proceedings, in accordance with EU Reg. No. 1259/10. Pursuant to Moroccan law, the wife requests to the husband to receive, at the end of their marriage, a lump-sum of money, as agreed on the wedding day.

In accordance with this law, at the same time with divorcing the wife asks for the payment of this sum of money by the husband, who – on the contrary – does not want to pay anything.


The “mahr” in accordance to Italian law


What we described above is a typical case of “mahr”, that – pursuant to Moroccan law – is a lump-sum of money, quite similar to our out-of-fashion dowry. It is something quite similar to a consideration which is agreed before the wedding and that has to be paid to the wife at the same time of the separation or of the divorce. However, this transfer of money cannot be allowed pursuant to Italian law, because it would be against the public order (ordine pubblico), i.e. against the fundamental principles of Italian law like the principle of non-discrimination between the spouses.

This barrier allows avoiding the implementation in our country of principles, which are inconsistent with our fundamental principles.

The couple from Morocco, therefore, will be able to get a divorce pursuant to Moroccan law but the implementation of mahr shall not be effective and consequently, with respect to the economic situation of the spouses, the Judge shall decide in accordance with Italian law.

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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