23 September, 2017

Mixed couple: what are the rules to proceed with the separation or with the divorce legal proceeding in Italy One case for two Judges: who is the competent one?

Communication systems always more and more efficient, social network and the access to quick transport channels by a huge number of people has shortened the distances among people. They also have made possible to enter in contact with different cultures and the respective development of relations, as well as to deal with different ways of connection, that was impossible to imagine until many years ago.

 

If the idea of a marriage (matrimonio) between people of different countries could seem quite impossible to our grandfathers, nowadays it is the normality.

 

Let’s consider the case of two young people – he is Italian and she is French – who get married and decide to live together in an Italian city. After the first happy years of marriage, the life together becomes difficult and the woman decides to come back to France and to leave her husband, communicating to him this decision by means of a letter. At this time, the husband seems destined to be subjected to a divorce (divorzio) proceeding in France, without knowing either French laws or French language, as well as without having the necessary money to defend himself adequately. His only chance to avoid this prospect should be to begin a divorce proceeding in Italy.

 

Given that it is not possible that two different Judges decide separately upon the same legal proceeding between the same parties (legally speaking it is called “litispendenza” – simultaneous pendency of two identical suits), either in case they are working in the same country or in different countries, some specific rules are provided for identify the only competent Court.

 

Reg. No. 2201/2003

 

EU Reg. No. 2201/2003 provides that, in these cases, the competence shall be recognised to the Court that has been involved firstly. In particular, the legal proceeding shall be recognized as the competent one when either its first deed (ricorso) has been filed firstly or its first deed (atto di citazione) has been notified firstly to the other Party.

 

When the second proceeding will begin, therefore, the party which has an interest in it may pinpoint to the Court the existence of another legal proceeding before another Court of another country and this second Court shall declare itself incompetent (lacking jurisdiction) and consequently shall cancel the legal proceeding, still having the option of issuing provisional decisions in favour and/or in the interest of the minors.

 

The husband, therefore, shall necessary act quickly filing the first deed (ricorso) in Court or notifying the first deed (atto di citazione) to the wife, before receiving the notice concerning the legal proceeding before the French competent Court.

 

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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