When a marriage born from the union of people from different countries comes to an end, the emotional strain of separation is often accompanied by a question that causes many sleepless nights: which law will determine how our story ends? It is an uncertainty we know well, because every day we assist couples who now live in different countries and do not know which legal system applies to them. As long as everything proceeds smoothly, the issue remains in the background, but as soon as separation is considered, understanding which law will govern the dissolution of the marriage becomes crucial. In this article, we explain in clear terms which law applies when an international couple whose partners now live in two different countries separates, and how much freedom of choice European law currently allows.<\/p>\n\n\n\n
From a legal perspective, a marriage between citizens of different countries is connected with several legal systems. The spouses\u2019 two nationalities refer to two different national laws, and when the partners end up living in different countries, the laws of their respective countries of residence may also become relevant. As long as the relationship continues without difficulty, no one thinks about this. Everything changes when the couple decides to end the relationship, because it then becomes necessary to determine which rules will govern the dissolution of the marriage.<\/p>\n\n\n\n
We want to make this clear from the outset: identifying the applicable law is not merely a technical issue for legal professionals. Different legal systems regulate the requirements and timing of separation and divorce<\/a> in different ways. Some require a period of separation before the marriage can be dissolved, while others allow spouses to proceed directly to divorce. Some place greater emphasis on the spouses\u2019 agreement, while others impose more rigid procedural steps. The law governing the dissolution of the marriage therefore affects the speed of the proceedings, the possibility of reaching a consensual solution and, ultimately, the peace of mind with which each spouse can move forward.<\/p>\n\n\n\n In our experience, the applicable law makes a real difference not at the beginning, but at the end. We see this when a couple approaches us convinced that they can apply to an Italian court and have Italian law applied, only to discover that a foreign legal system governs the case, extending the timeframe or not allowing direct divorce. The fact that one spouse resides in Italy does not automatically mean that Italian law applies, just as having different nationalities does not necessarily require the application of foreign law. There is a system of rules, primarily European, that precisely identifies which legal system applies. Addressing this issue from the outset, before starting any proceedings, makes it possible to structure the separation in the most straightforward way and avoid rushed decisions that may be difficult to correct once the case has already been brought before a court.<\/p>\n\n\n\n To determine the law applicable to an international separation<\/a>, we must begin with a distinction that often causes confusion. Determining which court has jurisdiction, meaning the authority before which the application must be filed, is one issue. Determining which law that court will apply to the separation or divorce is another. These are two separate matters, governed by different legal instruments, and they do not necessarily coincide. When the spouses live in different countries, the distinction becomes even more apparent, because an Italian court may be required to decide the case by applying foreign law.<\/p>\n\n\n\n For those living in the European Union, the central reference is the European regulation governing the law applicable to divorce and legal separation, commonly known as Rome III. This instrument determines which legal system must guide the court\u2019s decision. For the participating countries, including Italy, European legislation now takes precedence over national private international law rules concerning separation and divorce.<\/p>\n\n\n\n The method applied is structured. In the absence of a choice by the spouses, the applicable law is determined through an ordered sequence of connecting factors, beginning with the couple\u2019s habitual residence and gradually moving to other criteria. Habitual residence, rather than nationality alone, therefore becomes the central element of the assessment. For partners who no longer share the same home, this step requires particular attention, because it is necessary to determine whether a recent common connection still exists or whether subsequent criteria must be considered. This is an assessment that should be carried out immediately, because that single determination will, in practical terms, establish which law governs the separation.<\/p>\n\n\n\n We want to explain in simple terms what the Rome III Regulation is and how it works. It is a European Union instrument adopted through enhanced cooperation, meaning an initiative joined by only some Member States, including Italy. Not all European Union countries apply it, but for anyone living in a participating country it is the mandatory point of reference for determining the law applicable to the dissolution of a marriage.<\/p>\n\n\n\n One feature deserves particular emphasis, because it often surprises our clients. The regulation has universal application: the law it designates applies even where it is the law of a country that does not participate in the enhanced cooperation or is not even a member of the European Union. In practical terms, an Italian court may be required to apply the law of a third country if the connecting factors established by the regulation lead to that legal system. There is therefore no automatic preference for the law of the court hearing the case, and for spouses living in two different countries this is an important point that should not be overlooked.<\/p>\n\n\n\n It is also important to clarify the scope of the regulation. It deals only with the dissolution or loosening of the marital bond, meaning divorce and legal separation. Other matters that often arise alongside a marital crisis fall outside its scope, including the annulment of the marriage, property relations between the spouses, maintenance obligations, inheritance matters and parental responsibility. Each of these issues is governed by its own rules contained in other legal instruments. Understanding this division is essential, because it helps avoid confusion between different legal areas and explains why several different laws may apply within the same family case, each governing a specific issue.<\/p>\n\n\n\n One of the most valued features of the system is the possibility of choosing the applicable law, which is particularly important in the divorce of an international couple. Spouses are not necessarily bound to a single law. European legislation allows them to agree on which legal system will govern their separation or divorce. When the partners live in different countries and the criterion of common residence is no longer available, this possibility becomes a valuable tool for establishing the rules in advance and avoiding uncertainty.<\/p>\n\n\n\n The choice, however, is not entirely unrestricted. The spouses may select only one of several predetermined laws: the law of the country in which they both reside when the agreement is concluded, the law of their last common residence if one of them still lives there, the law of the nationality of either spouse, or the law of the country of the court dealing with the case. For spouses of different nationalities who live in different countries, the available options often remain broad and allow for a tailored solution.<\/p>\n\n\n\n The agreement must comply with specific formal requirements, and we guide our clients carefully through this process. It must be made in writing, dated and signed by both spouses, and it may be concluded or amended up to the time the court proceedings begin, or even during the proceedings if national law allows it. Certain safeguards also apply. If the law identified by the regulation does not provide for divorce or gives spouses unequal access to separation or divorce on the basis of sex, the court will apply its own national law. Similarly, a provision of foreign law may be disregarded where its effects would be manifestly incompatible with public policy. In the absence of a choice, the applicable law is determined automatically according to an ordered sequence: the spouses\u2019 current common habitual residence, their last common habitual residence within the previous year if one spouse still lives there, their common nationality and, finally, the law of the court hearing the case.<\/p>\n\n\n\n Once the law governing the dissolution of the marriage has been identified, it remains necessary to understand what happens to the financial aspects, which are often the most important concerns for couples. Here we must maintain the distinction already mentioned: the law applicable to the divorce does not automatically extend to every issue connected with the separation. Spousal support, maintenance and the division of property follow their own rules and may even be governed by legal systems different from the one governing the dissolution of the marriage. For spouses living in two different countries, this means that different laws may apply to different aspects of the same case.<\/p>\n\n\n\n The matrimonial property regime, meaning the treatment of assets acquired during the marriage, is governed by a specific European regulation. In the absence of a choice by the spouses, it determines the applicable law by looking first at their first common habitual residence after the marriage and, failing that, at their common nationality or the country with which they have the closest connection. In this area too, spouses may agree on the applicable law from among options linked to their residence or nationality. This is a form of planning that we recommend addressing in good time, ideally at the time of the marriage.<\/p>\n\n\n\n Maintenance obligations, including support for a spouse and financial contributions for children, are governed by a separate regulation. The general rule refers to the habitual residence of the person entitled to receive financial support, so that the amount is connected with the actual context in which that person lives. When the spouses reside in different countries, this criterion becomes central, because it links maintenance to the beneficiary\u2019s real living circumstances. The result is a framework in which the dissolution of the marriage, property relations and maintenance obligations may each be governed by different laws. It is not a maze, but a system that must be addressed one issue at a time, using the appropriate legal instrument for each matter. Those who do so from the outset avoid discovering too late that one aspect of their separation was governed by a law they had not taken into consideration.<\/p>\n\n\n\n A few examples help illustrate how these principles operate in practice in a marriage between citizens of different countries, particularly when the spouses no longer live together. Consider an Italian woman and a French man who married and lived for many years in Milan, but later separated after he moved to Paris. If one of them continues to live in Italy, their last common habitual residence may still provide the relevant connection and lead to the application of Italian law to the dissolution of the marriage, unless the spouses have agreed otherwise.<\/p>\n\n\n\n Consider then a German man and a Spanish woman who, after living in Italy for several years, return respectively to Germany and Spain. Once they no longer have a common residence and do not share a common nationality, the system may ultimately lead to the application of the law of the court hearing the case. This is precisely why, in similar situations, we recommend agreeing in writing and in advance on the applicable law, choosing one of the laws permitted by the Rome III Regulation, for example the law corresponding to the nationality of one of the spouses.<\/p>\n\n\n\n A third example concerns two spouses who married abroad, lived in Italy and now reside in different countries without sharing any nationality. Here too, reconstructing the most recent connecting factors becomes decisive for the dissolution of the marriage, while property and maintenance matters must be assessed according to their respective legal rules.<\/p>\n\n\n\n These scenarios reveal a common pattern: current or recent residence tends to guide the outcome of the separation, while the possibility of choosing the applicable law allows more forward looking couples to influence that outcome. Understanding these mechanisms in advance means making informed decisions rather than being subject to rules discovered only at the last moment.<\/p>\n\n\n\n If you are a couple of different nationalities and now live in two separate countries, we recommend clarifying from the outset which law would govern a possible separation and how much freedom of choice is available to you. Boschetti International Law Firm assists international families in defining these choices in advance, with the care and confidentiality that such a sensitive moment requires.<\/p>\n","protected":false},"excerpt":{"rendered":" When a marriage born from the union of people from different countries comes to an end, the emotional strain of separation is often accompanied by a question that causes many sleepless nights: which law will determine how our story ends? It is an uncertainty we know well, because every day we assist couples who now […]<\/p>\n","protected":false},"author":11,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[20],"tags":[],"class_list":["post-2983","post","type-post","status-publish","format-standard","hentry","category-blog"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/posts\/2983","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/comments?post=2983"}],"version-history":[{"count":1,"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/posts\/2983\/revisions"}],"predecessor-version":[{"id":2984,"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/posts\/2983\/revisions\/2984"}],"wp:attachment":[{"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/media?parent=2983"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/categories?post=2983"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.familylawboschetti.com\/en\/wp-json\/wp\/v2\/tags?post=2983"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}<\/a>Which law applies to an international separation<\/h2>\n\n\n\n
<\/a>The Rome III Regulation explained simply<\/h2>\n\n\n\n
<\/a>Divorce of an international couple: can the spouses choose the law?<\/h2>\n\n\n\n
<\/a>What changes in practice for spousal support, maintenance and property<\/h2>\n\n\n\n
<\/a>Practical examples of marriage between citizens of different countries<\/h2>\n\n\n\n