Italian Legislative Framework
Freedom of movement of people within the Eu member States has certainly led to new ways of organising life for couples.
This means, to some extent, a change in the legal and judicial environment for patrimonial arrangements in the case of marriage, civil partnership, or a common estate for family purposes.
Every member State, both those in the common law and civil law traditions, have their own private international law rules which aid in discovering what law applies in the event of cross border patrimonial issues in different fields.
Italy, for instance, defers to Law 218/1995: Articles 29 and 30 state that the patrimonial regime between spouses (and civil registered partners) is governed by the common national law of the two. As a residual criteria the partners can choose the law of the State where the couple has settled, or where their common life is basically being conducted.
This set of rules certainly provides assistance in solving cross border problems; nonetheless a clash of legal issues may often arise. These regulations are, namely, Ee Regulation No. 1103 and No.1104 of 2016.
They have been drafted as twin regulations and their wording is focused on avoiding misunderstandings at a literal level among States. The Regulations then deal with the private-international law aspects of the property regimes of couples and registered partners, including applicable law, jurisdiction, recognition and enforcement of foreign decisions and Deeds. According to the “Whereas” of the Regulations: “The objectives of this Regulation [are], namely the free movement of persons within the Union, the opportunity for spouses/ partners to arrange their property relationships in respect to one another and third parties during their life as a couple and when liquidating their property, and to provide greater predictability and legal certainty”.
That is why new regulations have been adopted within the Eu to harmonize the basic principles referred to above.
Scope: The patrimonial relationship between spouses and partners during a marriage/a registered partnership and in the event of its dissolution/annulment.
Applicable Law
Applicable Law: in both regulations the main criteria to be adopted is the Law of the habitual residence of the couple or members of the future couple (Art 22). This means that both spouses or partners can choose the law of the State where they have already fixed their habitual residence or, alternatively, where they are intending to move and settle down. Both regulations require this choice to be expressed in writing, dated and signed by both parties.
The choice of law (“profession iuris”) provisions embodied in the regulations are of universal application (Art. 20) so that the law designated or chosen shall be applied whether or not it is the law of an Eu Member State.
Alternative criteria
Where the spouses or the partners do not choose a governing law both regulations provide for different criteria to be followed (Art 26 EU Reg. 1103 for married couples): the law of the State a) of the common habitual residence; b) of the common nationality; c) with which there are the closest connections. (Art 26 UE Reg 1104 for registered partners) a) the law of the State in which the partnership was created or registered; then. the common habitual residence of the partners.
Jurisdiction
Indeed, the Regulation sets out not only the conflict of laws rules, which override those contained in Art. 30 of Law No. 218/1995, but also the rules on jurisdiction and the recognition of foreign decisions.
The only limitations set out relate to the personal estate and properties of the husband or wife in the case of a married couple and of the members of registered partnership, those placed outside of the patrimonial regime, are usually as result of a family succession.
Example 1: a married couple is resident in France; they both have German nationality (just to give an example) and they have a home in Spain where they spend long periods of time in smart working. Under EU
Regulations:
• they can choose the law of the common habitual residence (or the habitual residence of one of them), that is to say France in the instant case (Art. 22)
or
• in the absence of a choice (Art. 26), either the law of the State of the common habitual residence, the law of the State of their common nationality (Germany), or the
law of the State with which the couple has the closest connection (maybe Spain?) shall apply.
Example 2: one of the partners, of a registered partnership, is habitually resident in Austria. The other partner is intending to become resident of Austria but is currently a US national. The partnership was registered in Italy, where the partners have a house at the seaside, and they spend their holidays. As far as EU Regulation No. 1104 is concerned:
• They can choose the law of the State where both partners or one of them is habitually resident (Austria or USA); Italian law as the partnership has been registered in Italy (Art. 22)
or
• in the absence of a choice (Art. 26), the law of the State where the registered partnership was created (Italy) will be applied and by way of exception, the law of the State of the common habitual residence.
It is worthy of note that, besides resolving the conflict of laws issues, both EU regulations enhance the possibility for couples to plan their property arrangements during the relationship and regulate the effects in the event of a dissolution or annulment.
