Transcription of foreign decree absolute: the governing law
The exponential increasing number of foreigners registered in recent years in Italy, as well as of marriages between people of different citizenship, and as a consequence of divorces, has brought the attention to the Italian recognition of foreign decrees of non-litigious jurisdiction.
While previously rulings of dissolution of matrimonial ties issued by foreign Tribunals and Courts became effective on the Italian territory after deliberation of the Court of Appeal (which recognized those rulings as valid through issuance of a decree subsequently recorded in the civil registry of the competent Municipality), today, compatibly with the principle of international movement of judicial proceedings, foreign decrees and proceedings, whenever they meet requirements envisaged by the law (Articles 64, 65 and 66 of Law 218/1995), are automatically recognized.
It is for the Civil Registrar to establish the existence of unfailing requirements for transcription purposes.
If the Civil Registrar does not consider existing those envisaged requirements for transcription of a foreign divorce decree or proceeding, the Registrar will withhold the performance and transmit the files to the Public Prosecutor.
The Prosecutor may issue an opinion endorsing the transcription (in this case the Civil Registrar will record the decree while serving notification on the party concerned), or denying the request of recognition (in this case the Civil Registrar will serve notification of decision of refusal on the party concerned by denoting reasons and advising on the possibility to bring the matter before the competent Court of Appeal in order to submit a request for checking if recognition requirements are met).
The request of transcription must be submitted to the Civil Registrar of the Municipality whose registry the marriage has been recorded in, personally by the party concerned, through the Italian consular Authority or through a lawyer with special power of attorney.
Arrangements differ in terms of ecclesiastical judgments with regard to annulment of marriages, since they are issued by a foreign State, as in the case of the Vatican City State, they must be subject of enforceability by the Court of Appeal.
In this latter case, the Civil Registrar will not automatically recognize the ecclesiastical judgment by transcribing it directly in the Civil registry, but the Registrar will record the decree issued by the Court of Appeal by means of which the ecclesiastical judgment will be recognized effective on the Italian territory.
The Civil Registrar, who records the foreign divorce decree by transcribing it in the margin of the marriage certificate, will notify on behalf of each spouse both the Register Office of the Municipality of residence for modification of civil status from married to single, and the Municipality of birth for the transcription.
Transcription of foreign decree absolute: necessary requirements
Before establishing that the foreign divorce decree meets all necessary requirements for the transcription, the Civil Registrar will establish that everything is consistent from a formal point of view, that is:
- the Municipality has received a true copy of the divorce certificate;
- the divorce certificate has been duly legalized by the Italian consular or diplomatic Authority located in the State in which the decree has been issued;
- a certified translation in Italian language of divorce certificate is submitted;
- the divorce certificate has been received in full-form.
By the end of this phase, the Civil Registrar will establish the existence of the substantive requirements in accordance with Article 64 of Law 218/1995 for transcription of foreign decree absolute of divorce (divorce by consent, uncontested divorce, judicial divorce), those are:
- the judge of the foreign State who issued the decree could know about the lawsuit according to jurisdiction principles of the Italian Law;
- the act instituting court proceedings has been brought into knowledge by the defendant according to what is envisaged by the law of the State in which the trial took place and no essential right of defense has been infringed;
- the parties have appeared before court according to the law of the State in which the trial took place or the contumacy has been declared in accordance with the law;
- the decree has become absolute in accordance with the law of the State in which it has been issued;
- the decree is not contrary to another judgment issued by an Italian judge and become final;
- no proceeding is pending before an Italian Judgefor the same object and between the same parties which has begun prior to the foreign proceeding;
- the decree provisions do not produce any effect contrary to the Italian public policy.
Transcription of foreign decree absolute: decrees issued in European Union Countries (except for Denmark)
In regard to transcription of foreign divorce decrees issued in a European Union Country, the arrangement in Regulation EC 2201 of 27 November 2003 is implemented.
The Civil Registrar will receive from the judicial Authority or the competent Authority of the Member State in which the divorce decree has been issued, together with the request of the party concerned, a certificate drafted utilizing a numerical coding system, which does not need any translation or legalization.
The party concerned will submit a statement in lieu of notary deed stating that between the parties and for the same reason, a judgment given in a proceeding between the same parties in the required Member State or a prior judgment concerning the same parties given in another Member State or in a third country does not exist.
The Regulation EC 2201/2003 is applicable to transcription of divorce and separation decrees whose proceeding started after 1 March 2005, and also to those ones on-going on that date, provided that they started after 10 March 2001, date on which the previous Regulation EC 1347/2000 became effective.
Transcription of foreign decree absolute: decrees issued in non-EU Countries and Denmark
The transcription of an Italian citizen's divorce given by a foreign court of a country which is not part of the European Union, or in Denmark, and also those issued BEFORE 1 March 2001 in the European Community Countries require the Civil Registrar to examine the divorce decree for verification of requirements in accordance with Articles 64 et seq of Law 218/1995.
The required documents for transcription purposes are the following:
- divorce certificate, the original document or a true copy of it, issued by the foreign Judicial Authority. The certificate must be legalized by affixing the “Apostille” in application of what provided by the Hague Convention of 1961 for the acceding countries or legalized by the consular Office for the other countries;
- certification of decree absolute in accordance with the governing law in the State of issuance;
- translation in Italian language declared conforming to the original by the local Italian diplomatic/consular Office, or certified translation before an Italian court;
- statement in lieu of notary deed in accordance with Article 47 of Law 445/2000 stating that a judgment between the same parties and for the same reason has not been pronounced by the Italian Judge and that no proceeding is pending in Italy prior to the foreign one.
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