International divorce in Italy

When dealing with an international divorce, one of the most complex aspects is the choice or identification of the applicable law. This determines which rules govern the procedure and the effects of the divorce, influencing crucial aspects such as the rights of the spouses and the assignment of assets.

At the European level, the aforementioned Rome III Regulation (Regolamento UE 1259/2010) applies, by which the spouses can choose by mutual agreement which legal system to apply to their case, provided that there is a significant connection with one of the following:

1. the law of the State of habitual residence of the spouses at the time of the conclusion of the agreement;
2. the law of the State of the last habitual residence of the spouses, if one of them still resides there at the time of the conclusion of the agreement;
3. the law of the State of which one of the spouses has citizenship at the time of the conclusion of the agreement;
4. the law of the forum.

In the absence of an agreement between the spouses, the applicable law is determined on the basis of hierarchical criteria established by the regulation itself. Art. 8, specifically, provides that, in the absence of a choice pursuant to article 5, divorce and personal separation are governed by the law of the State:

1. of the habitual residence of the spouses at the time the court is seised, or, failing that;
2. of the last habitual residence of the spouses, provided that this period did not end more than one year before the court was seised, if one of them still resides there at the time the court is seised; or, failing that;
3. of which both spouses are citizens at the time the court is seised; or, failing that;
4. of the court before which the action is brought.

These criteria are designed to ensure predictability and legal certainty, avoiding situations in which the spouses might attempt to start proceedings in a country whose law is perceived as more favourable to their interests.

It is important to note that not all EU Member States recognise the same institutions in matters of divorce. For example, while the Italian regulatory system provides for personal separation as a necessary passage to reach divorce, some countries such as Austria and Finland do not recognise this institution. This non-uniformity can create additional complexities in cases of international divorce, especially when it comes to obtaining recognition of measures between countries with different legal systems.

It must be added that some countries do not even recognise the institution of divorce. For example, Morocco, the Philippines and Vatican City do not provide in their legal system the possibility of dissolving the marital bond through divorce. In these situations, article 31 of Legge 218/1995 takes on particular importance because, as already noted, it provides for a safeguard clause: if the applicable foreign law does not provide for the institution of divorce, Italian law necessarily applies. This provision ensures the fundamental right of spouses to be able to dissolve the marital bond, even when one of them comes from a country that does not recognise such institution, thus protecting the principle of Italian public policy which considers divorce a non-renounceable right.

Boschetti Studio Legale assists clients in the choice of the applicable law for international divorce, assessing all elements relevant to the case. This includes:

• Analysis of the available regulatory options.
• Advice on the legal and practical implications of each choice.
• Resolution of disputes relating to the choice of applicable law.

Our objective is to provide clear and concrete assistance, ensuring that the rights of clients are protected in every jurisdiction involved. Furthermore, we also support in complex cases of non-consensual international divorce, where the choice of applicable law can significantly affect the outcome.

Establishing which court is competent for an international divorce is a crucial step to ensure that the proceeding takes place according to the appropriate rules. Territorial competence is determined by rules established by the Brussels II-ter Regulation and by Legge 218/1995, which regulate jurisdiction in matters of private international law.

In general, the competent court is that of the Member State in which the following is located:

• The habitual residence of one of the spouses or of both.
• The last common habitual residence of the spouses, on condition that one of the two still resides there.
• The habitual residence of the defendant, that is to say of the spouse who does not start the proceeding.
• The habitual residence of the applicant, if they have lived there for at least six months before starting the case and is a citizen of that State, or for one year in other cases.
• The place of celebration of the marriage, as a residual criterion in the absence of the other elements.

For example, a couple formed by an Italian and a French citizen lives in Milan, but one of the spouses subsequently moves to Paris. If the French spouse decides to ask for divorce, the competent court could be the Italian one, on the basis of the most recent common habitual residence (Milan), or the French one, if the French spouse demonstrates having had habitual residence in Paris for at least six months and starts the proceeding there.

These criteria are applied to avoid conflicts of jurisdiction, but particularly complex situations may require an in-depth analysis and the involvement of several States.

Boschetti Studio Legale helps clients to identify the competent court, providing support in the presentation of the case before the most advantageous forum and ensuring that the proceeding follows clear rules and timing. This includes the verification of jurisdiction based on geographical and personal connections, the management of cross-border proceedings to ensure that the divorce is valid and recognised in all the States involved, and the legal defence in cases of contestation on territorial competence.

Choosing the right court can reduce the time it takes for divorce and the costs of international divorce, avoiding unnecessary bureaucratic or procedural complications.

In the context of international divorce, in Italy there are two main modalities to put an end to the marriage: joint divorce and judicial divorce. The choice between these two modalities is not random, but depends substantially on the degree of agreement between the spouses and on the complexity of the issues to be resolved.

Joint divorce, based on mutual consent, is the most streamlined and efficient solution. In this case, the spouses autonomously reach an understanding on all the fundamental aspects of the separation, from the division of assets to any custody of the children, up to the assignment of the marital home. The role of the court, in this circumstance, is limited to verifying that the agreements reached respect the principles of fairness and the regulations in force, both Italian and international.

Joint divorce is based on an understanding between the parties, who consensually decide the fundamental aspects such as the division of assets, the assignment of the marital home and, if applicable, the custody of children after international divorce. This procedure is generally faster and less costly, since the court is limited to verifying that the agreement respects Italian laws and the principles of fairness. It is particularly suited to couples without children or with non-conflictual family situations.

When instead the dialogue between the spouses proves impractical and a meeting point cannot be found, it becomes necessary to resort to judicial divorce. In this scenario, more complex and potentially conflictual, it is the judge who must resolve all the disputed issues. This includes crucial decisions such as the determination of the maintenance allowance, child custody and the management of common patrimony. This procedure inevitably requires longer times and entails higher costs, in addition to often generating further tensions between the parties involved.

In this case, it is up to the judge to decide on all the contested issues, including those relating to the maintenance allowance or to the assignment of the home. This procedure is often longer and more expensive, both in terms of times and costs of international divorce, and can generate further tension between the parties.

It should also be noted that the introduction of short divorce represented an important innovation in the Italian legal system, allowing a significant reduction in the times necessary for the dissolution of the marital bond. In fact, while legge n. 898 of 1970 required a waiting period of three years from personal separation before being able to file the divorce application, the new legge n. 55 of 2015 has considerably shortened these terms. Currently, divorce can be requested after only six months in the case of consensual separation, or after one year in the case of judicial separation, making the procedure much more streamlined and efficient compared to the past.

In the international context, divorce procedures become enriched with further complexities. It is necessary to consider aspects such as the competent jurisdiction, the applicable law and the recognition of judgments in other countries. Particular attention must be paid to the protection of minors, especially in relation to the possibility of relocations abroad and to the management of cross-border visitation rights.

In this context, the role of specialised legal assistance becomes fundamental. A law firm experienced in international family law can guide clients in the choice of the most suitable procedure, providing support both in situations of consensual agreement and in cases of litigation. The objective is to ensure a process that is as smooth as possible and respectful of the rights of all parties involved, minimising the bureaucratic and legal complexities that characterise international divorces.

The key to effectively managing an international divorce lies in the ability to anticipate and pre-emptively address potential critical issues, ensuring that all decisions taken are effective and recognised in the various jurisdictions involved. Only through a professional and methodical approach is it possible to successfully navigate through the complexities of international family law.

Boschetti Studio Legale accompanies clients in choosing the procedure most suited to their needs, providing complete assistance both in cases of consensual negotiation and in situations of litigation. Our objective is to ensure a smooth process respectful of the rights of each spouse, minimising legal and bureaucratic complexities.

The recognition in Italy of a divorce pronounced abroad is a fundamental procedure to ensure that the legal effects of the judgment are valid on Italian territory. Such procedure is regulated by Legge 31 maggio 1995, n. 218 and, in cases involving Signatory States, by the 1970 Hague Convention.

A foreign judgment is automatically recognised when it meets all the following criteria:

• The judge who issued the judgment had jurisdiction according to the principles of the Italian legal system on jurisdictional competence;
• The parties were adequately informed and were able to exercise their rights of defence in the foreign proceeding;
• The constitution of the parties in the proceeding took place according to the law of the country where the proceeding took place;
• The judgment has become res judicata according to the law of the country of origin;
• There is no conflict with an Italian judgment that has become res judicata;
• There is no proceeding pending in Italy for the same subject matter and between the same parties, started before the foreign proceeding;
• The content of the judgment does not produce effects contrary to Italian public policy.

In certain cases it may be necessary to start a formal recognition procedure before the Court of Appeal of the place where the judgment must be enforced or where its effects must be produced. This procedure becomes necessary, for example, when disputes arise on the validity of the divorce or when it is a divorce from a marriage contracted abroad. In these cases, it will be necessary to present:

• Authentic copy of the foreign judgment;
• Official translation of the judgment into Italian with related legalisation or apostille, if required;
• Documentation attesting the passage in res judicata according to the law of the country of origin;
• Any additional documents required by the applicable international conventions.

For divorces pronounced in countries of the European Union, the recognition process is simplified thanks to the Brussels II-ter Regulation, which provides for the automatic recognition of decisions between Member States. In these cases, it is sufficient to present to the civil status officer:

• A copy of the judgment that meets the conditions necessary to establish its authenticity;
• The divorce certificate issued by the court of origin using the form referred to in Annex I of the Regulation.

It is important to note that the failure to comply with even one of the requirements provided for by art. 64 may entail the refusal of the recognition of the foreign judgment in Italy, making it necessary to start a new divorce proceeding according to Italian law.

Thanks to the experience of our team of lawyers, Boschetti Studio Legale ensures complete assistance, from the preliminary verification of the documentation to the representation in court. This approach reduces the risks of refusal of the foreign judgment and allows our clients to rapidly obtain the necessary recognition in order to proceed with any further legal steps, such as the registration in Italian registers or the management of related property and family issues.

Child custody is one of the aspects of parental responsibility, which is regulated at international level by the 1996 Hague Convention. This convention, officially called “Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children”, establishes uniform rules for the protection of minors in transnational situations. It determines which State has jurisdiction to adopt protection measures, which law is applicable and how decisions are recognised and enforced between Contracting States.

At the European level, parental responsibility is regulated by EU Regulation 2019/1111, known as Brussels II-ter. This regulation governs jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility within the European Union. It aims to facilitate cooperation between Member States and to ensure that decisions relating to parental responsibility are recognised and applied uniformly throughout the EU.

These two regulatory sources work in synergy to ensure effective protection of minors and a coherent management of parental responsibility in international and European contexts.

In particular, child custody and the maintenance allowance are central issues in international divorce proceedings, since they involve not only the rights of the parents, but also the higher interest of the minors. The management of these issues requires an approach that takes into account Italian rules, international conventions and applicable European regulations.

As regards custody, the guiding principle is established by the 1996 Hague Convention, incorporated in Italy with Legge 18 giugno 2015, n. 101, which places the interest of the minor at the centre of every decision. The habitual residence of the minor becomes the primary criterion for determining jurisdictional competence and the applicable law. The Brussels II-ter regulation, moreover, strengthens this approach within the European Union, ensuring cooperation between Member States and the automatic recognition of decisions relating to parental responsibility.

Decisions on custody can vary from joint custody to exclusive custody, with specific provisions for the visitation right of the non-custodial parent. Such decisions are taken considering factors such as the stability of the minor, their bond with each parent and the conditions that best ensure their psychophysical well-being. In the event of conflict between the parties, the Italian judge will apply national law or, if provided, the foreign law identified through the EU Regulation Rome III, with particular attention to the rules on the higher interest of the minor.

The maintenance allowance, on the other hand, is regulated by Regolamento CE n. 4/2009, which regulates maintenance obligations at international level. This ensures that spouses and children have access to adequate economic resources, regardless of the country of residence of the parents. The calculation of maintenance takes into account the income and needs of each spouse and of the children, as well as the cost of living in the reference country.

A practical example may be that of a mixed couple, with one Italian parent residing in Italy and the other residing abroad. In this case, the competent Italian court can apply national rules to decide on the maintenance allowance and on custody, ensuring that decisions are also recognised abroad through the procedures established by European regulations or by international conventions such as the 1996 Hague Convention.

Boschetti Studio Legale assists clients at all stages of the proceeding, from preliminary negotiation to representation in court, ensuring that the rights of every member of the family are fully respected. Our specific competence in private international law allows us to resolve even the most complex cases, offering solutions that respect the times and the regulations provided, ensuring the maximum protection of the minors involved.