Divorce between Italian and foreign citizens in Italy: what to do?

Divorce between Italian and foreign citizens in Italy: what if the marriage was performed abroad? 

Since marriages between Italian citizens abroad or between foreign citizens in Italy are increasingly common, it is useful to investigate the issue of Divorce between Italian and foreign citizens.

The Italian Law No. 218/1995 establishes that marriages performed abroad – between Italian citizens, foreign and Italian citizens, or foreign citizens living in Italy – are regulated:

- By the laws of the country where the marriage was celebrated, as for the form and regularity of the ceremony;

- By the laws of the countries where the spouses live or belong, as for property regime, personal relationships and legal consequences of marriage. 

The substantive requirements of marriage (capacity to marry, age, marital status, distant or no kinship, other conditions to marry) depend on the laws of the countries to which each spouse belongs at the moment of marriage.

Marriages performed abroad, if compliant with the forms of ceremony admitted in the country where they have taken place, have full force and effect in Italy, and their effects are subject to the Italian law, provided that one or both of the spouses are Italian nationals.

Marriages performed abroad and not registered in the Italian Vital Statistics, being registration a non-discretionary act, will be affected by irregularity and will result in an administrative sanction against the spouses, although their marriage will be valid anyway.

In order to transcribe a marriage performed abroad, the Italian Civil Registrar will have to check that both spouses have married voluntarily, being this latter a requirement for the configurability of the same marriage. Indeed, in case this requirement is not met, it is forbidden to transcribe the marriage.

Divorce between Italian and foreign citizens in European and non-European countries 

Each EU-Country is required to establish reasons and modalities for filing a Divorce or a Legal Separation Petition involving Italian and foreign citizens, but in case of Separation or Divorce of spouses from different countries and living in countries other than their citizenship countries, the European Council Regulation (EU) No. 1259/2010 applies.

This European Regulation simplifies the procedure for determining which national law applies when it comes to cross-border Divorce or Separation.

The spouses can file a Joint Petition for Divorce or Legal Separation:

- In the country where they usually live;

- In the country where they used to live together, provided that one of them still lives there;

- In the citizenship country of one of the spouses;

- In the country, in which said Petition is filed, i.e. in the place of residence of one of the spouses.

The agreement between the spouses has to be in writing, and it needs to be dated and signed by both spouses. It can be concluded and/or modified at any time, but ahead of bringing it before a Court.

The Court where the Petition (provided that this latter meets the conditions listed above) is filed, has the power to decide on the matter.

The same Court that has jurisdiction over the divorce can also decide on the issues relating to parental responsibility.

Instead, in case there is no agreement between the spouses, in the EU Member States which have subscribed the above mentioned Regulation, a Court can apply:

- the law of the country where both spouses usually live;

- the law of the country where they used to live at least 1 year before filing the Petition;

- the law of the country to which both spouses belong;

- the law of the country where the Petition is filed.

The above mentioned EU Regulation applies not only to citizens of EU Member States, i.e. Italy, Austria, Belgium, Bulgaria, France, Germany, Greece, Hungary, Latvia, Lithuania, Luxemburg, Malta, Portugal, Romany, Slovenia, and Spain, but also to citizens of non-European countries, as well as to citizens of countries which haven’t subscribed the Regulation, being this latter universal.

Further, the EU Regulation applies only in case of Legal Separation or Divorce, and it is not concerned with children maintenance or property issues between the spouses, being these issues provided for by Council Regulation (EC) No 2201/2003.

Divorce between Italian and foreign citizens in Italy: citizenship and residence permits 

Italian citizenship acquired by marriage with an Italian citizen is not lost in case of Separation or Divorce between the Italian and the foreign citizen, provided that a Decree granting Italian citizenship has been issued by the Ministry of the Interior.

Residence permits for family reasons, instead, are revoked, since in case of Separation or Divorce their fundamental prerequisite, i.e. cohabitation, lacks.

In case of Separation or Divorce, anyway, the Italian Consolidated Law on Immigration allows foreign citizens to turn their residence permits for family reasons into other kinds of residence permits, for example into residence permits for subordinated or independent work or for study purposes. It should be anyway noticed that this is not an automatic process: instead, it is possible only upon request by a party.

With Order No. 19893/2010 the Italian Supreme Court of Cassation has determined that a non-European national divorcing form the Italian spouse has right to residence permit renewal, provided that they have been married for at least three years (of which at least one spent in Italy) before the proceedings relating to divorce or marriage annulment begin.

Divorce between Italian and foreign citizens in Italy: how to protect yourself? 

Our Law Firm, Arnone&Sicomo, assists both Italian and foreign citizens who whish to apply for divorce or separation in Italy.

We gather from the spouses all preliminary information necessary to obtain a Judgement, in order to determine which is the best applicable law in the specific case.

We assist Italian citizens who married abroad with transcription of their foreign divorce decree in Italy.

Click here if you want to get in touch with us!

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