When a marriage brings together two people of different nationalities, or when a couple has built its life beyond Italy’s borders, the end of the relationship also takes on an international dimension. In this article, we explain in clear language what you need to know if you live abroad and wish to divorce in Italy, where you can file for divorce, which law governs the dissolution of the marriage, and how the entire process can be managed remotely.
What is an international divorce and when does it concern people living abroad
An international divorce arises whenever the dissolution of a marriage involves a connection with more than one legal system. This may occur in several situations, the spouses have different nationalities, they live in different countries, they married abroad, or they own assets and interests located in different jurisdictions. For an international couple, this is almost a natural situation, because two nationalities often mean two possible legal systems that may apply.
The presence of this international element does not simply make the personal aspects of the separation more complex, it also raises two important legal questions that should be addressed from the outset. The first concerns jurisdiction, namely which court has the authority to hear the divorce when the couple is not connected to a single country. The second concerns the applicable law, in other words which legal system governs the dissolution of the marriage, since the spouses’ residence and nationality may point to different legal rules.
These questions are answered through a coordinated framework of legal instruments rather than a single source. Within the European Union, regulations governing matrimonial matters determine both jurisdiction and the applicable law. Where these regulations do not apply, Italian private international law, namely Law No. 218 of 1995, applies on a residual basis. The system therefore operates in layers, European law first, national law second.
Anyone living abroad should therefore not assume that the end of a marriage will automatically be governed by the law of the country in which they reside. In many cases there is more than one possible court and more than one applicable law, and choosing between the available options can have a significant impact on the outcome. Understanding the international nature of your divorce from the very beginning is the first step towards handling the process in the most effective way.
Divorcing in Italy while living abroad, when is it possible
Many spouses who have built their lives outside Italy wonder whether they may still file for divorce before an Italian court. In most cases, the answer is yes, provided that at least one of the legal grounds establishing the jurisdiction of the Italian courts applies.
The primary reference is Law No. 218 of 1995, which, under Article 32, provides particularly broad jurisdictional rules for legal separation and divorce. Italian courts have jurisdiction whenever one of the spouses is an Italian citizen or the marriage was celebrated in Italy. These criteria are complemented by the general jurisdictional rules referred to by the same provision, in particular the forum of the defendant, namely the place where the respondent resides or is domiciled.
For an international couple, this framework is often favourable. For example, it is sufficient for one spouse to retain Italian citizenship for the Italian courts to remain available, even if both spouses now live abroad. The same applies where the marriage was originally celebrated before an Italian civil registry office.
It should, however, be noted that the rules set out in Law No. 218 operate only on a residual basis, meaning that they apply where jurisdiction is not already established in favour of another Member State under the applicable European regulations. The first step is therefore always to verify whether European law attributes jurisdiction to the courts of another Member State, only in the absence of such jurisdiction do the Italian national rules apply.
The practical consequence is reassuring, even while living abroad, spouses will almost always have access to a competent court. Nevertheless, it remains important to determine carefully which court is actually the most appropriate, because Italy is not always the only available option.
Jurisdiction in international divorce, which court has authority
Determining jurisdiction in an international divorce means identifying the court before which the divorce petition may validly be filed. Within the European Union, this issue is governed by the regulation on matrimonial matters commonly known as Brussels II ter, which, from 1 August 2022, replaced the previous 2003 regulation.
The regulation does not designate a single competent court but instead provides a number of alternative grounds of jurisdiction, all of equal value. Jurisdiction may be based on the spouses’ common habitual residence, their last habitual residence provided one spouse still lives there, the respondent’s habitual residence or, in the case of a joint application, the habitual residence of either spouse. The spouses’ common nationality is also relevant. One particularly useful ground for spouses who have relocated is the habitual residence of the applicant alone, provided that the applicant has lived there for at least one year before filing the petition, a period reduced to six months where the applicant is also a national of that State.
The key concept is habitual residence. This does not necessarily coincide with formal registration in a population register. According to the case law of the Court of Justice of the European Union, habitual residence is the place where a person has established, on a stable basis, the permanent centre of their personal and professional interests. Entries in official registers constitute evidence, but they may be rebutted by factual circumstances demonstrating a different level of integration within a particular social environment.
Where no court of a Member State has jurisdiction under the regulation, jurisdiction may nevertheless arise under national rules, including the Italian provisions already discussed. This has been confirmed by the Court of Justice in a well known case involving spouses residing outside the European Union. For international couples, the practical consequence is significant, several courts may potentially have jurisdiction, and identifying the most appropriate one requires careful legal assessment.
Divorce for Italians living abroad, uncontested or contested proceedings
Once the competent court has been identified, the next question is how the proceedings will actually take place. Divorce for Italians living abroad, like purely domestic divorce, may follow two different paths, uncontested proceedings or contested proceedings. The distinction depends on whether the spouses have reached an agreement.
In an uncontested divorce, the spouses agree on all the terms of the divorce, including financial arrangements and any matters concerning the children, and submit their agreement to the court for approval. This is generally the quickest solution and is often the most suitable option for those living abroad, as it reduces the need to appear before the court and can largely be managed remotely. In contested proceedings, by contrast, no agreement has been reached, and the court must decide the disputed issues, resulting in a longer procedure.
The Italian procedural framework has recently been reshaped by the Cartabia Reform, which introduced a single unified procedure before the court for both legal separation and divorce. This new framework also applies to cases involving international elements and, in certain situations, allows the spouses to file a joint application.
For international couples, the applicable law plays a decisive role. The European regulation commonly referred to as Rome III allows spouses, by mutual agreement, to choose the law governing their divorce from among several options connected with their habitual residence or nationality. This possibility often makes it easier to obtain the dissolution of the marriage through the most straightforward legal route, in some cases even without prior legal separation.
Choosing between uncontested and contested proceedings is therefore not merely a procedural matter. It affects the duration of the proceedings, the costs involved and the overall experience for the spouses. For those living abroad, it can make the difference between a smooth process and lengthy litigation. It is therefore a decision that deserves careful consideration from the very beginning.
Documents, power of attorney and managing the proceedings remotely
Understanding how a remote divorce works is not always straightforward. The first point to bear in mind is that handling divorce proceedings from another country requires proper organisation of the necessary documentation. Distance, however, is not in itself an obstacle. The starting point for a remote divorce is the power of attorney. In Italy, legal representation by a lawyer is mandatory, and the power of attorney is the document through which the spouse formally appoints the lawyer to act on their behalf. It may be signed abroad and sent to the Law Firm, subject to the authentication formalities required in the country where it is executed.
As regards documentation, the marriage certificate is required together with the spouses’ personal records and, where relevant, documents concerning the children and the parties’ financial circumstances. Where these documents have been issued abroad, they generally need to be translated and legalised, often by means of an apostille, before they can be used in Italian proceedings. This is a step that should be planned well in advance, as it may affect the overall duration of the case.
Another important aspect of remote divorce concerns proof of habitual residence. As already noted, habitual residence cannot be established solely through official registration certificates. Where necessary, it may also be demonstrated by other concrete evidence, including employment contracts, tenancy agreements, utility bills and any documentation showing that the person has established genuine ties with a particular place.
Thanks to the electronic filing of court documents and the possibility of signing the power of attorney remotely, most of the proceedings can now be handled without requiring frequent travel to Italy. The spouse living abroad remains in regular contact with their lawyer, who manages all procedural steps before the court and provides updates throughout the proceedings. Careful preparation of the documentation from the outset is what makes a divorce conducted from abroad genuinely manageable, even where the spouses are living in different countries.
Timing, costs and when you need a lawyer for an international divorce
The duration of an international divorce largely depends on the procedure chosen. Uncontested proceedings, based on the spouses’ agreement, are generally completed within a shorter timeframe, whereas contested proceedings require several hearings and therefore take longer. These factors are accompanied by the additional complexities typical of international cases, such as the translation and legalisation of foreign documents or the coordination of two spouses living in different countries.
One aspect that should not be overlooked is lis pendens. If both spouses commence divorce proceedings, each before the courts of a different country, the court first seised will generally retain jurisdiction, while the second court will suspend its proceedings and ultimately decline jurisdiction. For this reason, acting promptly and making a well considered choice of forum may prove decisive.
Costs also vary according to the complexity of the case, the type of proceedings involved and the work required to address the international aspects. An uncontested divorce between spouses who have already reached an agreement requires a different level of legal assistance compared with contested litigation involving financial issues or disputes concerning children.
Finally, many people ask when they need a lawyer. In this field, the answer is clear. Legal representation is always required, and the lawyer’s role extends far beyond appearing before the court. The most important work is often done before the proceedings begin, by identifying the competent court and determining the applicable law, two decisions that may significantly influence the outcome of the divorce and that require experienced legal advice. Seeking assistance from a lawyer with expertise in international family law allows the proceedings to be structured in the most effective manner from the outset and helps avoid mistakes that may later prove difficult to correct. It is the best way to approach an already challenging situation with greater confidence and peace of mind.
If you live in different countries and are considering divorcing in Italy, a dedicated legal consultation can clarify from the outset which court has jurisdiction, which law is most appropriate for your case and how to organise the necessary documentation. At Boschetti International Law Firm, we assist international families at every stage of this process.
