THE EFFECTS OF PRENUPTIAL AGREEMENTS IN ITALY

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It is commonly said that prenuptial agreements are banned in Italy: a large part of the Italian public opinion complains that this is a spiteful limitation resulting from a backward mentality.

However, that all prenuptial pacts are banned is not entirely true: such contracts  are banned only for the All-Italian couples who reside in Italy and have no connection with foreign Countries: now that we have more than 5 million foreign residents in Italy, 1.5 million citizens who hold a dual passport, and many more Italians who have settled abroad for longer or shorter periods of time, this is less and less true. When at least one of the partners is a foreigner-or when the couple has close ties to a foreign country- the prohibition on prenuptial agreements does not apply at all. We are going to call this type of couples as “international couples” for the sake of simplicity.

Furthermore, Italian nuptial contracts that are entered into during the celebration of marriage in Italy (such as community of property, separation of property and others) are certainly far stricter than any foreign prenuptial agreement signed abroad: therefore, we first need to agree on the meaning of prenuptial agreements.

·         For example, the alimony obligations (broadly speaking “maintenance”) between spouses are regulated by Article 45 of Law 218/1995, which refers back to EU Reg. 4/2009, which in turn refers forward to the 2007 Hague Protocol: such obligations can be regulated by a law chosen by the spouses of an international couple, therefore also by a prenuptial agreement.

·         The property regime between spouses, on the other hand, is regulated by Article 30 of Law 218/2016 and EU Reg 1103/2016 (and for same-sex unions by Reg 1104/2016), which allows the parties to choose the property regime of another country even by a prenuptial agreement of the international couple.

What is a prenuptial agreement, then?

A prenuptial covenant is a contract that is being used to regulate the ownership of the family’s property or that regulates the economic and marital consequences arising from a separation or divorce, a covenant that in some countries also reaches and regulates detailed aspects of married and postmarital life: such as the education, including religious education of children, pensions etc.

To give an example, a U.S. couple married in Italy (or an Italian and a U.S. spouse) might well opt for the separation of property by a contract under EU Reg 4/2009: such a choice of property regime (with a similar option in several European countries: such as France) would hardly be of use, though, if the Italian-American couple resorted to the U.S. courts for a divorce.

In fact, the Courts of common law Countries would usually disregard the choice made by the spouses about the property regime, and can allocate movable property, real estate or money to either spouse based on equitable valuations (equitable distribution) or 50/50 (equal distribution).

It will therefore be necessary-in order to draw up a valid prenuptial agreement in Italy-to also consult a lawyer from the other country involved, lest running a risk of future invalidity.

And what if the spouses, aside from the regime of property, establish a post-marital maintenance for the event of divorce (which is a theoretically lawful choice under EU reg. 4/09 and the 2007 Hague Protocol)?

Indeed, in the US it is common to come across prenuptial agreements by which a reward is given to the weaker spouse when the marriage is lasting e.g. for 5 years and a surplus if it lasts at least 10 years etc. Or an increasing “maintenance” to the wife based on the number of children generated. Or a compensation for giving up a career.

Such clauses could clash against the limit of Italian Ordre Public as they might be seen as limiting the individual liberties.  

It is true that the Italian Supreme Court has recently, and on several occasions, granted  validity to prenuptial agreements that provide for the repayment of a premarital loan in the event of divorce, or the transfer from one to another of property enjoyed or acquired during the marriage, but these have so far been decisions concerning merely patrimonial matters that did not affect the individual’s fundamental rights and sphere of freedom. For the future… who knows?! Indeed, no one, until a few years ago, would have even thought of renting a womb by paying an “reimbursement” to the bearer: yet today this is being openly discussed even in Italy.  

The moral of this all?

In few words: a) by entering into a separation of property agreement-which is totally valid in Italy-this is likely to be worthless if we move to certain countries abroad, like USA or UK; b) by entering into a maintenance agreement for the case of divorce this might be valid abroad but not when the couple moves to Italy.

(Marco Calabrese is an International Family Law Attorney shortlisted by the US and UK Embassy in Rome Owner of the Family Law Italy, a boutique law firm, located in Rome, Italy he is also currently Treasurer and Past-President to Italawyers International, an International association of Italian Lawyers)

m.calabrese@familylawitaly.com

website www.familylawitaly.com

+39068075014 +393289112809

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