Italian nuptial agreement

Question: Are prenuptial and nuptial agreements allowed in Italy? What law regulates the marriage after moving to Italy?

Answer: Italy has extremely strict rules and almost no nuptial arrangement is allowed. Prenuptial and nuptial agreements are applicable in situations where the spouses have different or more than one nationality, or when one or both of them live in a country different from their nationality. In some of these international cases the spouses have the option to choose an alternative law to regulate their marital affairs. Otherwise, the Italian law determines what law shall govern the relationship between the spouses during the marriage and in case of divorce.

Italian Matrimonial Law

Italian law defines two main areas of matrimonial matters and establishes specific rules for each of them, as follows:

a) Personal matrimonial matters:

The personal marital matters are all the non-monetary mutual obligations and entitlements between the spouses. For example, fidelity, moral assistance and family collaboration.
The law applicable to such matters is the national law common to both spouses. For example, if both spouses are French citizens, the French law applies. For spouses who have different nationalities or more than one common nationality, the personal matters of their marriage is regulated by the law of the country where they spend most of their marital life.

b) Matrimonial property matters:

The matrimonial property matters are monetary aspects regarding the spouses wealth.
The law applicable to matrimonial property (for example, the ownership of real estate) is the one applicable to personal matters above; or the spouses have the choice to make a written nuptial agreement where they elect an alternative law to regulate their estate matters. In particular, they can agree that the law applicable to their matrimonial affairs is the national law of one of them or the law of the country where at least one of them lives.

Conflict of Matrimonial Laws

It is also important to note that, in some cases, a foreign legislation might refer back to the Italian law to regulate aspects that have a strong connection with Italy. For example, often there is might be a reference back to Italian law with respect to the matrimonial property matters regarding an Italian real estate asset, unless the parties have expressly (in writing) opted out of the default reference back.

Conflict with Public Policy

It is also important to bear in mind that should the spouses elect a governing law that includes provisions in conflict with Italian public policy, such provisions would not be enforceable in Italy. For example, terms based on sex, religious or race discrimination would not be enforceable in Italy.

Separation and Divorce Law

Also, Italy has rules to determine the law and the jurisdiction applicable to separation and divorce matters. For example, the law applicable to the separation and dissolution of a marriage is the one of common nationality of the spouses at the time of marriage or at the time of separation/dissolution. If they do not have a common nationality, the applicable law is the one of the country where they spend most of their marital life.

Formalities

In order to make sure that foreign nuptial arrangements are enforceable in Italy it is necessary to comply with some formal requirements. For example, as mentioned above, any nuptial agreement, even just to elect a law of choice, needs to be done in writing. Also, depending on the interest that the spouses wish to protect, there might be the need to file the marriage and/or the nuptial agreement with designated Italian authorities, such as a notary public, a Municipal Office and the Italian Property Register.

Marriage Planning

If you are planning to move to Italy, or already live in Italy, and you wish to have more flexibility as to the law applicable to your marriage, separation or divorce, it is advisable to review your specific case circumstances in order to consider possible strategies and options.

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