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Italy

Italian family and sucession law recognizes three forms of couple's relationship:

  • MARRIAGE between persons of opposite sex

  • REGISTERED PARTNERSHIP between persons of the same sex

  • DE FACTO PARTNERSHIP between persons of opposite or same sex

The first category is regulated under the Civil Code, while the second and the third are regulated by the Law of 20 May 2016, n. 76, in Arts. 1-35 and 36-65, respectively. Formerly, the third category was developed through the court practice.

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DISCRIMINATORY RULES

Italy regulates marriage only between persons of different sex. Civil union is recognised only between persons of the same sex. The rules on unregistered cohabitating partnerships developed in case law differentiates between opposite and same sex couples. Agreement as an option to regulate property consequences is not equally recognised to all listed categories.

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Links to applicable regulations

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MARRIAGE 

  • Unless otherwise agreed by the spouses, the matrimonial property regime established by Italian law (Arts. 159-230 bis of the Civil Code) is the legal communion of assets. The parties may derogate from the regime of legal communion when celebrating the marriage; it will be noted in the margin of the marriage certificate that the spouses have chosen the regime of the separation of assets. A similar choice can be expressed after the celebration of the marriage, through an authentic instrument formally drawn up by a notary.

Comunion of assets. All the assets that the spouses purchase, jointly or separately, after the marriage are a part of the communion of assets. They belong in equal parts to the husband and the wife. The law does not consider part of the communion: the assets already owned by the spouse before the marriage; the assest acquired through inheritance or donation; the assests that are strictly personal or that are used for the exercise of the spouse’s profession; the assets obtained as compensation for damages or as indemnity; the assets purchased with the sale price of other personal assets, if this is expressly declared. Spouses in a regime of legal communion of assets may act with disjointed powers for ordinary administration, while for the extraordinary administration they must act jointly. The dissolution of the communion of assets occurs for the following reasons: the death of one of the spouses, legal separation or divorce, the bankruptcy of one of the spouses, for marriage annulment, by means of an agreement to renounce the legal communion or for judicial separation of assets. With the cessation of communion, the spouses will proceed with  a consensual or judicial division of common goods.

Separation of assets. As an alternative to the communion of assets, the law allows the spouses to choose the separation of assets. This patrimonial regime must be adopted by means of an express declaration of the spouses during the celebration of the marriage, or subsequently in the presence of a notary. In case of legal separation of assets, each spouse remains the exclusive owner of the assets acquired prior to the marriage, as well as of those aquired subsequently. The spouse, as the sole owner of his or her assets, is entitled to enjoy and administrate them on its own.

Other forms. Other property regimes admitted are: the conventional communion, in which the spouses constitute, by an agreement, a patrimonial regime to modify the legal communion of assets, such as by including some personal assets which the law does not treat as part of the communion of assets, and the patrimonial fund, constituted by an authentic instrument formally drawn up by a notary, and aimed to satisfy a speciffic purpose such as to support the needs of the family, where the use of these assets is restricted by the purpose for which the fund is created. The fund can be established by the spouses, both or only one of them, or by a third party.

  • In the event of separation, the weaker party with no adequate means for living or who cannot obtain them for objective reasons is granted a maintenance allowance proportionate to the standard of living of the couple. With the subsequent divorce (the Law of 1 December 1970, n. 898, amended by the Law of 10 November 2014, n. 162 and the Law of 6 May 2015, n. 55), an allowance established by the judge may be in the lesser amount than in the period of separation.

  • In the event of the death of a spouse (Arts. 536-552 and 581-585 of the Civil Code), the situation differs in case of testate and intestate succession.

If one spouse dies testate, the law reserves to the surviving spouse half of the estate of the deceased spouse. If the deceased spouse leaves behind, in addition to the spouse, a child, each of them will have the right to a one-third of the estate, leaving one-third subject to the deceased's will. If, in addition to the spouse, there is more than one child, the surviving spouse will have the right to one-quarter of the estate, the childern will share among themselves the half of the estate, leaving one-quarter of the estate subject to deceased's will.

If the spouse dies intestate, the surviving spouse has the right to  one-half of the estate if there is only one child, and one-third if there are more children. In case of no children, two-thirds of the estate is inherited by the surviving spouse, if he or she concurs with legitimate ascendants or with brothers and sisters of the deceased spouse. In the absence of children, of ascendants, of brothers or sisters, the surviving spouse acquires the whole inheritance. In any case, the surviving spouse has the right to live in the family residence.

 

REGISTERED PARTNERSHIP (CIVIL UNION)

  • The property regime of the civil union (the Law of 20 May 2016, n. 76, Art. 13) follows the same rules as for marriage. It is provided that he communion of assets is the applicable legal regime unless the parties agree otherwise. Further provisions explicitly refer to the provisions of the Civil Code related to the communion of assets, the separation of the assets, the conventional communion, the patrimonial fund.

  • In case of dissolution of the civil union (the Law of 20 May 2016, n. 76, Arts. 23-25), the weaker party is entitled to the maintenance as in the event of divorce. Snce separation is not provided for civil unions, there is no maintenance in case of separation.

  • In the event of death of the party to a civil union (the Law of 20 May 2016, n. 76, Arts. 21-22), the rules on testate and intestate succession for the surviving spouse apply mutatis mutandis to the surviving party of a civil union.

 

DE FACTO PARTNERSHIP

  • There are two types of de facto partnerships before and after the Law of 20 May 2016.

De facto cohabitants subject to the Law of 20 May 2016 are under the speciffic regime.

  • They may conclude a cohabitation contract to regulate their patrimonial issues in recognized de facto cohabiting partnerships can be regulated by a cohabitation contract (the Law of 20 May 2016, n. 76, Arts. 50-64). This agreement concerns the choice, or the modification, of the property regime between cohabitants. It must be written, on sanction of nullity, in an authentic instrument or a certified private deed, provided by a professional (a notary or an attorney) who must certify that the contract complies with mandatory rules and the public order. To assure its effects against third parties, the notary (or the attorney) transmits the contract to the civil registry within 10 days from its conclusion. The law provides that a cohabitant who lends his work in the partner’s economic activity (in case he is not an employee or a company’s member) has the right to participate in profits.

  • In the event of termination of cohabitation, the cohabitant who is in need and unable to provide for himself or herself, has the right to receive from the other cohabitant, a maintenance strictly limited to living needs, for a period proportionate to the length of the cohabitation (the Law of 20 May 2016, n. 76, Art. 65).

  • In the event of death of a cohabitant (the Law of 20 May 2016, n. 76, Arts. 42-46), and in absence of a will, the surviving cohabitant has no inheritance rights, unlike the surviving spouse and the surviving partner of a civil union. If the deceased partner was the owner of the house of permanent residence, without prejudice to the rights of the minors over the family home of their deceased parent, extensible to the surviving cohabitant, he or she has the right to live in the same house for two years; or three years if the surviving cohabitant has minor or disabled children born out of the relationship with the deceased partner; or for a period equivalent to the cohabitation, but in any case not beyond five years. The right is lost if the surviving cohabitant stops living permanently in the house of common residence, if he concludes a marriage, civil union or undertakes a new de facto cohabitation. If the deceased cohabitant has a lease, the surviving cohabitant has the right to succeed him in the contract. In case the death of a cohabitant arises from an unlawful act, the surviving cohabitant has the right to compensation for damages, the same way as the surviving spouse and the surviving partner of a civil union.

De facto cohabitants prior to the Law of 20 May 2016 are under a different regime. 

Based on the national report prepared by Roberto Garetto, Manuela Giobbi, Antonio Magni, Tereza Pertot, Elisa Sgubin and Maria Virginia Maccari