A key difference between the family property regime in Anglo-American countries and that in Italy is that, normally, in the former, there is no possibility of choosing a total separation of the property acquired by the spouses during their married life and community of property remains prevalent, if not exclusive between them.

On the other hand, the distinction between personal property (resulting from inheritances, donations and purchases made prior to marriage) and property owned jointly by the spouses is not very different.

Another fundamental difference is the regime of ‘compensation’ in favour of one spouse in case of separation and divorce, which may include the compulsory transfer -made by the Court- of individually owned assets from one to the other: an event impossible in the Italian case, except by agreement between the parties.

Therefore, in cross-border divorce cases, when there is a connecting factor between an Anglo-Saxon country and a civil law country, such as Italy, the analysis of the rules applicable to the matrimonial property regime is of paramount importance.

The ordinary regime of ownership of property acquired during marriage in Italy is community of property, which may be derogated through an agreement in favour of separation of property. Instead, let us examine, specifically, the fate of assets acquired by inheritance or gifted during the marriage when legal community of property is in force, as well as the regulation of assets -first and foremost, money- acquired as the price of the transfer of a spouse’s personal property.

In this respect, Article 179(b) of the Civil Code provides that property -such as money- acquired by inheritance or gift, must be considered as personal property and does not form part of the community, if the acquisition took place during the marriage and when it is not established in the will that it forms part of the legal community of property. The law therefore requires no further declarations.

On the other hand, in the case of property acquired with the price of the transfer of personal property, Article 179(f) of the Civil Code requires the purchaser to expressly declare in the deed that the property is to be considered as personal property, in order to exclude it from community. This statement may be entered in the purchasing deed or made separately, as long as not afterwards the deed.

In this regard, the case law of the Supreme Court (1) equates the hypothesis in which the money is the revenue of the alienation of a personal property -an hypothesis provided instead by Article 179(f) of the Civil Code- with the hypothesis in which the money is acquired by the spouse directly by inheritance or gift.

Therefore, in order to exclude money acquired by inheritance and then re-invested in the purchase of property (including shares, bonds, etc.) from the legal community of property, a declaration by the acquiring spouse declaring the personal origin of the money, as required by Article 179(f) of the Civil Code, would be necessary.

However, the jurisprudence of the Supreme Court considers that such a declaration is only necessary in the case where the purchaser/spouse, in addition to money acquired by inheritance, also owns money received for other reasons -for example for work reasons- because in this case the financial reinvestment could consist not only of money of hereditary origin, but also of another, which would not exclude the application of the statutory community of property regime, which is the standard legal regime when the spouses do not opt for the separation of assets.

When there is no uncertainty as to the exclusive/personal ownership of the property, the declaration under (f) would be entirely superfluous.

In addition to the purchaser’s declaration as to the personal provenance of the money, a declaration of acknowledgement by the other spouse is also required: where the other spouse objects or does not participate in the legal act carried out with the other spouse’s own money, the purchase remains personal, but it is up to the purchaser to prove this, in order to avoid the presumption that the property falls into community of property.

In order to avoid the presumption of joint ownership under Italian law, spouses can also today make use of Eu Regulation No. 1103-1104 of 2016, by opting for a different applicable law to their matrimonial regime.

(1) see, Supreme Court of Cassation, May 5, 2010, n. 10855.

Stefano Cuomo is a civil italian Attorney, operating in Rome as international private and family lawyer. He has been working with the law firm Family Law Italy for several years – www.familylawitaly.com – s.cuomo@familylawitaly.com cell.+39/338 5221487