ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
• the defendant is habitually resident in Italy; • the creditor is habitually resident in Italy; • Italian courts have jurisdiction to entertain proceedings concerning the status if the matter relating to maintenance is ancillary to those proceedings (unless that jurisdiction is based solely on the nationality of one of the parties); or • Italian courts have jurisdiction to entertain proceedings concerning parental responsi - bility if the matter relating to maintenance is ancillary to those proceedings (unless that jurisdiction is based solely on the nationality of one of the parties). Article 4 of EU Regulation 4/2009 gives the par - ties the option to choose Italian courts to be competent in matters of maintenance obliga - tions between spouses/ex-spouses (electio fori). Italian courts can be chosen if: • they have jurisdiction to settle the dispute in matrimonial matters; or • Italy is the member state of the spouses’ last common habitual residence for a period of at least one year. These conditions have to be met at the time the choice of court agreement is concluded, or at the time the court is seized. The choice of court agreement will have to be in writing. Italian courts can also hear financial claims after a foreign divorce. The clauses mentioned in a foreign divorce concerning maintenance (in favour of the children or in favour of the spouses) can always be revised if:
• spousal maintenance was not determined as a lump sum. Matrimonial Property Regime Jurisdiction in matters of the matrimonial property regime is defined by EU Regulation 1103/2016, which applies to legal proceedings instituted on or after 29 January 2019. Accord - ing to Article 5 of the Regulation, where Italian courts are seized to rule on an application for divorce pursuant to EU Regulation 1111/2019, an Italian court shall have jurisdiction to rule in matters of the matrimonial property regime aris - ing in connection with that application. Never - theless, Italian jurisdiction in matters relating to the matrimonial property regime shall be sub - ject to the spouses’ agreement where the Italian courts that are seized to rule on the application for divorce are: • the courts of the state in which the applicant is habitually resident and the applicant had resided there for at least a year immediately before the application was made; • the courts of the state of which the applicant is a national and the applicant is habitu - ally resident there and had resided there for at least six months immediately before the application was made; • seized in cases of the conversion of a legal separation or divorce; or • seized in cases of residual jurisdiction. Each party can contest jurisdiction, as can the judge (on their own motion). The issue of juris - diction has to be decided before the merit of the case, which can only be decided if Italian jurisdiction is correctly established. Lis Pendens As is the case for proceedings concerning status and those relating to maintenance obligations
• the divorce is recognised in Italy; • Italian jurisdiction is established; • new circumstances arise; or
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