23 August, 2017

What investigations are allowed in Italy to discover possible incomes abroad connected to the ex-spouse – Divorce in Italy with an Italian qualified lawyer, specialized in Italian family law

The couples who get a separation or a divorce in Italy must be aware that the Italian law allows the Italian Court to admit economic investigations with the specific purpose of discovering all possible incomes of the ex-husband or ex-wife. For this reason, it is essential to be advised by an Italian qualified lawyer, specialized in Italian family law, who is able to provide the client with the most appropriate advice, also concerning Italian tax law, not to be surprised. It is worth noting, indeed, that the investigations are allowed both if the working activities and/or assets of the spouse are located in Italy and if they are located abroad.

Who, for example, could have interest to discover all possible incomes of the ex-husband or of ex-wife, because he/she is getting a separation or a divorce pursuant to the Italian law:

  • An Italian citizen and a foreign citizen, both residing not in Italy but abroad;
  • Two Italian citizens, both residing not in Italy but abroad;
  • Two foreign citizens, residing not in Italy but abroad and who got married in Italy or had lived in Italy or had decided to apply the Italian law;
  • An Italian citizen and a foreign citizen, both residing in Italy;
  • Two Italian citizens, both residing in Italy;
  • Two foreign citizens, both residing in Italy.

It could happen that the husband, for example an entrepreneur or a self-employed professional, has a rather limited turnover but, at the same time, he owns assets or she/he is the holder of bank accounts which have not been declared to the Italian Tax Authority (in some cases “hidden” by fiduciary companies located in the so-called “tax haven” countries). In many other cases, it may happen that the ex-husband works abroad or moves outside Italy or he is native of a different country (making in some cases more difficult to obtain the necessary documents). However, during the divorce (divorzio) civil proceeding the wife, who requests to maintain a wealthy standard of living, could file for a high request of alimony. If well advised, she could be more interested to focus on the real economic and patrimonial situation of the husband in order to obtain an amount of alimony more adequate for her sustenance (mantenimento).

Declarations of income are not enough regarding the Italian civil proceeding

In order to determine the amount of a possible alimony, indeed, the Court must evaluate the real economic situation of the two spouses. The two parties must provide the Court with concrete proofs regarding the available incomes and assets owned by the spouses.

The yearly declarations of income are however not the only points of reference: the Judge, especially if she/he deems to suspect about the existence of such undeclared assets, bank accounts, shares and obligations, could proceed with specific public investigations carried out by the Italian Tax Authorities. Moreover, the Judge has also the power to relieve the Bank of its duty of confidentiality in case the Judge believes that the personal interest of the individual or of the Bank itself, protected by the duty of confidentiality of the Bank, may obstruct the interests of Justice. In this case, the Bank shall be obliged to provide the Judge with all the documents connected with the client, which are necessary to clarify the situation.

These public investigations can be carried out also by means of international rogatories, in case the assets or the sources of income are located in foreign countries, or in case, the obliged person works or resides outside Italy. It is however worth noting that the Court does not proceed with “attempts of research”, e.g. on simple referrals done by the wife, but it is necessary to provide the Court with some concrete proofs of evidence, so that the Court may doubt about the husband’s declarations of income; for example, if the husband has bought an expensive car or a yacht or he carries out an expensive way of life, these expenses may not be consistent with the declarations of income he filed under the respective Italian fiscal Authority.

It is therefore appropriate to consider if the own fiscal situation presents some dark areas because, by means of both the public investigations and probative phase occurred in the civil proceeding, there is a concrete chance that the real patrimonial situation will be correctly evaluated, with the specific consequence not only of a duty to pay a high amount of alimony but also to be the target of public investigations carried out by the Italian Tax Authorities, with possible arising fiscal and criminal proceedings.

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.

For contacting us click here