Q Question: Should I purchase my Italian property jointly with my spouse or separately? Could you please explain the different implications?

 

A Answer: Under standard circumstances, the notary public who certifies the property purchase would typically ask the vendors and the buyers for their respective marital status, i.e., whether they are married or, in any case, whether they had any matrimonial ties, to include such information in the Title Deed.
Said information might be not crucial on completion, but can be substantially relevant in case of resale of the property or a portion of it, or in case of execution of other rights regarding the property, e.g., application for a mortgage, or in case of a divorce happening after the purchase has been completed.
When buyers are formally married, the notary public typically asks to confirm whether they want to purchase the property jointly, under the community of assets regime, in Italian this is termed “comunione di beni”, or separately, under the separation of assets regime, in Italian termed “separazione di beni”. Please find below a general overview of the Italian law effects of buying a property in Italy as a married couple and some possible options.
According to Italian law, when a married couple or a married person purchases a property in Italy, the purchase can be completed under the community of assets regime or the separation of assets regime, as mentioned above. The default regime is the comunione dei beni. If the buyer does not expressly choose the separazione, the comunione applies.
The comunione dei beni: (i) if only one spouse signs the final purchase deed, or (ii) if both spouses sign the final purchase deed, the property belongs in any case to both of them, thus even if the other spouse does not sign any document.
As a result of the comunione, neither of the spouses can independently encumber any portion of the property. In case of resale, both spouses’ signatures are needed to sell the property or a portion of it.
The separazione dei beni: if both spouses provide the notary with proper formal declaration, the spouses can buy the property under the separazione, either under only one of their names or both of them. Under the separazione only the person who signs the purchase deed has rights on the property. In case of joint signature under the separazione, each owner is entitled to independently encumber his/her share.

This gives the following scenarios for purchase:
1) You are married: you purchase the property in your name only and you state in the purchase deed that you want the separazione to apply.
Implications: the property will belong to you only. The other spouse’s signature is not needed for the purchase. His signature will not be required in case of re-sale of the property. In case of resale the notary could ask you for proof that you and your husband were regulated by the separazione when the property was purchased. If you will not be able to provide the notary with such proof, your husband’s signature might be required to sell the property or a portion of it. For this purposes it seems advisable to make sure to have such proof in place prior to completing the purchase.
2) You are married: you purchase the property in your name only and you state in the purchase deed that you want the comunione to apply.
Implications: the property will belong to both spouses. One spouse’s signature is sufficient to complete the purchase. The other spouse’s signature will most likely be required in case of re-sale of the property or a portion of it.
3) You are married: you purchase the property under both your names, 50% each, and you state that your want the separation to apply.
Implications: the property will belong to both of you, 50% each or in accordance to the shares you will indicate to the notary. The spouses’ signatures will be required in case of re-sale of the respective shares only.
4) You are married: you purchase the property under both spouses names and you state that you want the comunione to apply.
Implications: the property will belong to both spouses. One spouse’s signature will be sufficient to complete the purchase. Both signatures will be required in case of re-sale of the property or a portion of it.

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