In my article dealing with the differences between Matrimonial Regimes in Italy and Common Law Countries https://www.linkedin.com/pulse/matrimonial-regime-separation-assets-italy-how-works-marco-calabrese-tfvsf/ we had finally got to the one-hundred dollar question:

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

Speaking in general, when you got married in a regime of Separazione dei Beni/separation of assets, the very first thing to do before moving abroad is to see TWO lawyers: both should be competent in international divorce matters. One in Italy and one in the Country where you intend to move your residence. Better safe than sorry.

If you have elected a Separazione dei Beni, in Italy at the moment of your marriage the choice of this matrimonial regime will not automatically be valid back in the USA or other Common Law Country, it means that this choice alone will not protect your assets. Few solutions are admissible and legal. Below you can find some ideas.

#1 As we said in part 1, many Courts -especially in Anglo American Countries- tend to achieve “fairness” when dividing assets in a divorce proceeding and can disregard prenuptials or nuptial agreements (contrary to Italy where these ageements are carved in stone). Ultimately, you may procrastinate moving from the Country where the agreement was made. If your marriage is “shaky” take action before you move with your family out of Italy. All States have rules for jurisdiction, in fact. This is a time frame showing that the person filing the divorce has lived in the Country/State. Most Countries require the person filing for a divorce to be a physical resident for the last six months., but time requested could be shorter than this. Such a time frame is also required when moving across the EU (6 or 12 months).

#2 Set up a trust, after getting competent advice. If you move to a Country that does not believe in matrimonial regimes (such as UK, US, Australia etc.) the Court can investigate as to whether or not a trust is genuine. Judges are used to coming across trusts in divorce proceedings and there could be serious consequences if they consider that a Trust has been used as a smoke screen to hide the financial reality. As we said, while In Italy one of the main the purposes of the spousal separation of assets is that of protecting and segregating the assets of the family of origin, in Common Law Countries the rights of the spouse will often prevail.

#3 You may also consider to stipulate, aside, before or after than Separazione dei Beni, a separate Agreement the minimum requirements of which are the following:

The spouses must have been advised by independent lawyers. One per spouse.

The US Courts require that a full disclosure has been made by the spouses when stipulating a prenuptial agreement.

Always choose expressly in writing the applicable law (whether Italian or not) in the prenuptial or nuptial agreement. Although the European Regulations only regard the European Union, such a statement may help you in an American Lawsuit, as well.

The nuptial agreements must be translated and signed in both languages by the parties and by a Court’s translator- or a qualified interpreter, in any case.

Renew the agreement every few years, and, in any case, after the birth of any child.

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