Same-sex marriage

The difference between marriage and civil union manifests itself in various fundamental aspects of Italian law. Civil union, introduced to regulate bonds between persons of the same sex, presents specific characteristics that distinguish it from traditional marriage.

A first distinctive element concerns the obligation of fidelity, expressly provided for in marriage but not mentioned in the regulation on civil unions. This does not mean that fidelity is not important, but reflects a different legal approach of the two institutions.

Same-sex unions also differ as regards the procedures of dissolution. While in marriage it is necessary to go through a period of separation before divorce, in the civil union it is possible to proceed directly with the dissolution of the bond after three months from the manifestation of the will of separation before the civil status officer. More particularly, to put an end to the union it is sufficient that one of the partners, even separately, expresses the will to interrupt it before the judicial officer. After three months have elapsed, one of the two will be able to start the divorce procedure, turning to the Court, to the Mayor or resorting to assisted negotiation with the intervention of lawyers, in conformity with what is established by the reform on short divorce.

Another relevant aspect concerns parental rights. In the case of marriage, the spouses can adopt a child jointly, while in civil unions this possibility is not provided for. However, the path of adoption in particular cases for the partner of the biological parent (stepchild adoption) remains open.

As regards property, social security and inheritance rights, civil unions guarantee substantially the same rights as marriage. The partners have inheritance rights, can access the survivor’s pension and enjoy the protections provided in case of illness or death of the partner.

Boschetti Studio Legale provides specialised advice to fully understand these differences, helping couples to choose the path most suited to their needs and ensuring correct protection of their rights.

Same-sex marriage abroad is a consolidated reality in numerous countries, which offers Italian couples the possibility of celebrating their union in States where this institution is fully recognised. Take the case of Marco and Paolo, an Italian couple who decided to marry in Spain: after having verified local requirements, they collected the necessary documentation, including the clearance certificate from the Italian embassy in Madrid, and celebrated their marriage in Barcelona.

The registration of same-sex marriage in Italy required particular attention to the aspects of private international law. In the case of Marco and Paolo, once they returned to Italy, they had to present the Spanish marriage act, duly translated and apostilled, to the Italian Municipality of residence. Their marriage was recognised as a civil union, ensuring them the rights and protections provided by Italian law.

According to Italian private international law, in fact, marriage contracted abroad between persons of the same sex cannot be registered as marriage in the Italian civil status registers, but is recognised as a civil union. This recognition process follows precise rules: Italian citizens must first verify the requirements requested by the country where they intend to marry, which may include residence, specific documentation or waiting periods.

Boschetti Studio Legale offers specialised assistance in this area, guiding couples through the verification of requirements in the country chosen for the marriage, the preparation and legalisation of the necessary documentation, the process of recognition of the union in Italy and the management of any bureaucratic disputes. Our firm also takes care of assisting couples in understanding the legal effects of their marriage in Italy, including the property, inheritance and social security aspects that derive from the recognition as a civil union.

The question of adoption for same-sex couples in Italy reflects a complex legal framework that requires particular attention. Currently, same-sex marriage Italy does not provide for the possibility of joint adoption for same-sex couples, but some forms of protection of already existing family bonds exist through jurisprudential interpretation.

The Cirinnà law, while introducing the recognition of civil unions, did not include the possibility for same-sex couples to access adoption. During the process of approval of the regulation, in fact, the so-called stepchild adoption was eliminated, initially provided for and supported by senator Cirinnà herself. This institution would have allowed the adoption of the biological child of the partner, a case that could concern, for example, a couple of women in which one of the two had a child from a previous relationship.

Instead, the adoption of the biological partner’s child is permitted for heterosexual couples through the mechanism of adoption in particular cases. This legal instrument allows ensuring the minor a family capable of favouring balanced growth, even in the absence of requirements such as the state of abandonment.

As regards same-sex couples, the regulation in force does not allow them to adopt a minor. However, case law has intervened to fill this legislative gap, recognising the so-called social parent, that is the non-biological partner in a same-sex couple, the possibility of adopting the biological partner’s child. This possibility is subordinate to specific conditions: a stable and consolidated bond must exist between the social parent and the minor; the adoption must respond to the best interest of the child; and it must comply with the fundamental principles of the Italian legal system, as established by the Constitution and by the laws in force.

The judges have clarified that adoption by a same-sex couple does not violate national public policy, since the right of the minor to maintain emotional relationships with the persons who constitute their family nucleus prevails over genetic bonds or over the sexual orientation of the parents. In the presence of these requirements, the adoption provided for in particular cases can therefore also be applied to same-sex couples, ensuring the protection of the minor in the context of an emotionally stable family.

For couples who have had children abroad, the recognition in Italy of the parental bond requires particular procedures. Our firm has followed several cases, including that of an Italian-Spanish couple who had obtained the recognition of parenthood for both mothers in Spain. In Italy, it was necessary to start a specific proceeding for the recognition of this foreign measure, thus protecting the rights of the minor.

The possibilities of recognition of family bonds include:

• Registration of birth acts formed abroad;
• Adoption in particular cases of the partner’s child;
• Recognition of foreign adoption measures;
• Protection of the rights of minors in same-sex parent families;
• Regulation of relations with children in case of separation.

Italian case law is gradually evolving towards greater protection of LGBT rights, with particular attention to the higher interest of the minor. Boschetti Studio Legale carefully follows this evolution, offering updated advice and legal support to protect the family bonds of same-sex couples, always in compliance with the higher interest of the minor.

The question of Italian citizenship for the foreign partner of a same-sex couple requires particular attention to the regulations in force. The application for citizenship through the civil union with a foreign citizen has been equated to the application for citizenship by marriage provided for by art. 5 of the legge 5 febbraio 1992, n. 91.

Therefore, the foreign partner civilly united with an Italian citizen can apply for Italian citizenship after two years of legal residence in Italy following the registration of the civil union. If instead the couple resides abroad, the term to submit applications is three years from the stipulation of the civil union.

The procedure to obtain citizenship requires the demonstration of knowledge of the Italian language at least at level B1, certified through a recognised exam. Furthermore, it is necessary to demonstrate the absence of relevant criminal records both in Italy and in the country of origin.

Same-sex marriage abroad recognised as a civil union in Italy allows starting the citizenship procedure according to the same criteria. The application must be submitted through the portal of the Ministry of the Interior, attaching all the required documentation, suitably translated and legalised.

Boschetti Studio Legale provides specialised assistance in the management of these practices, supporting couples through the entire process: from the preliminary verification of the requirements to the preparation of the necessary documentation, from the monitoring of the timing of the case to the assistance in communications with the competent authorities. Our advice ensures accurate management of all procedural aspects, ensuring maximum attention to the specificities of every situation and allowing to speed up the procedure with reminders sent to the competent authorities.