ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
Judicial separation does not end the marriage. As a matter of fact, the parties remain married – although some of the duties of marriage cease (ie, the duty of cohabitation and fidelity), some continue (ie, educating and maintaining the children) and some change (ie, maintaining the spouse). During the period of legal separation, the wife may continue to use the husband’s sur - name that was acquired with the marriage. The community of assets regime (if applicable to the marriage) ends. Inheritance rights survive. Legal separation proceedings are very similar to the divorce proceedings outlined earlier. Same-Sex Couples Same-sex couples are not permitted to marry in Italy but can constitute a civil union. The civil union ends when one of the parties declares their willingness to end the civil union in front of the registrar. After three months, a petition is lodged with the court by a lawyer. During the hearing, both parties are asked to confirm their willingness to dissolve the civil union. The judicial phase can be replaced by the col - laborative practice. 1.2 Choice of Jurisdiction According to Article 3 of EU Regulation 1111/2019, which applies to cases lodged with the court on or after 1 August 2022 (EU Regula - tion 2201/2003 applies for cases initiated before that date), Italian jurisdiction is grounded if: • the spouses are habitually resident in Italy or their last habitual residence was in Italy (inso - far as one of them still resides there); • the respondent is habitually resident in Italy; • in the case of a joint application, either of the spouses is habitually resident in Italy;
• the applicant is habitually resident in Italy, provided that they resided there for at least a year immediately before the application was made; • the applicant is habitually resident in Italy, provided that they resided there for at least six months immediately before the application was made and is an Italian national; or • both the spouses are Italian nationals. If the criteria established by EU Regulation 1111/2019 are not relevant for the determination of the competent jurisdiction, Law No 218/1995 (the “Italian International Private Law”) applies, according to which Italian jurisdiction exists if (Articles 3, 9 and 32): • one of the two spouses has Italian citizenship; • the celebration of the marriage took place in Italy, with a formal celebration provided for by Italian law; • the respondent is resident or domiciled in Italy; or • domestic Italian rules ground Italian jurisdic - tion. All the criteria developed by the EU Regulation and the Italian International Private Law in order to establish jurisdiction revolve around the fol - lowing concepts. • Habitual residence – this refers to the place where the party has established the habitual or permanent centre of their interests. It assumes relevance as the place of effective residence (understood as the place of the concrete and continuous development of per - sonal and possibly working life) on the date of submission of the application, and not the place formally mentioned within the registry. The concept of habitual residence combines an objective element (stability) and a subjec -
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