THE MATRIMONIAL REGIME OF SEPARATION OF ASSETS IN ITALY: HOW IT WORKS (part 1)

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THE MATRIMONIAL REGIME OF SEPARATION OF ASSETS IN ITALY: HOW IT WORKS (part 1)

I always encounter great difficulty when trying to explain to my Anglo-American clients how the separation of marital property in Italy works and how this regime can, in fact, make the other spouse’s estates invulnerable in the event of a divorce. I guess that this difficulty is not, or not only, deriving from the poor quality of my English.

Lately, a lady Client, when she at last grasped the essence of the Italian Separation of assets – Separazione dei Beni exclaimed: “this means that we are not even married!”

…not true: but not too far from truth either, considering her point of view.

Different countries and cultures have different ideas about marriage and how it should affect asset ownership.

Separation of assets/ “Separazione dei beni” is a choice that can be made during the celebration of marriage and is greatly predominant in Italy, for many reasons:

·         Italian taxation is based on a progressive system: you will pay lower taxes on two smaller incomes than on a larger one.

·         separation of assets will not affect personal properties in the event of divorce: there is no equitable distribution, no liquidation of assets, no nothing. The better off spouse can be ordered to pay maintenance to the other party and that’s all. To each his (her) own.

·         separation of assets can better protect the wealth of the family of origin (this is -in my views- the deepest cultural reason that makes separation of assets so popular in Italy).

·         support and life of children will not be affected by this contract, and will remain the same as in community property.

·         basically there is no difference between an unmarried couple and a married couple who is choosing separation of assets, at least during their lifetime. Only in case of death the surviving spouse will inherit a share of the assets (we have forced heirship, by the way).

·         in conclusion the “Separazione dei Beni” is like a prenuptial agreement that never changes, airtight and stainless.

Some other European countries, like Italy (e.g. Germany and France: with some differences) allow couples to choose what regime should be applied  to them: whether community property or separation of assets.

But when in “separazione dei beni” the spouse has virtually no powers on the other’s estates, even in the event of a divorce.

Okay, but how do I explain this, to my Anglo-American Clients living in Italy? In UK and US, and other Countries influenced by their culture,  when the Court is dividing the matrimonial assets, the aim is to achieve fairness.

Unlike Italy, in many English Speaking Countries the culture of marriage is based on the idea of a partnership, in fact. Prenuptial agreements can be considered valid only in the absence of duress, or unconscionable agreements, or when the conditions of the original pact remained unaltered, more or less during all the matrimony.

In the UK, for instance, a Supreme Court’s decision in the case of Radmacher v Granatino [2010] was saluted as revolutionary. The Court moved the emphasis on keeping as valid matrimonial agreements made abroad by establishing the principle that “the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” I have no records of other similar decisions.

On the other side of the pond, in Stawski V. Stawski, 843 N.Y.S2d 544 (App. Div. 2007), a New York Appellate Court upheld the findings of a special referee that a Marital Contract made in Germany was valid and enforceable, despite the fact that the contract was entered into more than 30 years before and the wife was not represented by independent counsel.

Stawski was followed by Kipnis V. Kipnis, 872 N.Y.S.2d 426 (2008), which enforced the parties’ contrat de marriage entered into in 1965 in France where the couple had selected the marital regime separation de biens-an agreement to keep their property separate.

However: these are the exceptions, not the rule! More often an American Court is likely to simply ignore your separazione dei beni stipulated abroad.

So… how to protect your assets when you married in a regime of Separation of Assets and have moved to a Country (typically UK or US) where foreign pre-nups are often overlooked?

Good question! But I don’t want to be too long and tedious: this is the matter for another article (see part. 2: https://www.linkedin.com/pulse/matrimonial-regime-separation-assets-italy-how-works-part-calabrese-djokf/)

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.
m.calabrese@familylawitaly.com – website www.familylawitaly.com – +39068075014 +393289112809

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