ITALY Law and Practice Contributed by: Carlo Rimini and Rebecca Andrello, Studio dell’avv. prof. Carlo Rimini
this matter include Supreme Court, 30 January 2017 No 2224, Supreme Court, 26 April 2021 No 11012, and Supreme Court, 28 June 2022 No 20745. The restrictive perspective and the reasoning against the validity of such agreements can be summarised as follows: • the effects of the divorce are effects of the marriage; • the effects of the marriage are regulated in Italy by Article 160 of the Italian Civil Code, which prevents spouses from entering into agreements that have the effect of giving up or modifying the rights and duties deriving from the marriage; and • therefore, the spouses cannot validly enter into an agreement with respect to mainte - nance rights subsequent to a divorce. Agreements in contemplation of a future legal separation/divorce are considered to be against public order, as they violate the principle of the non-negotiability of rights in matrimonial mat - ters. In any case, the issue of the nullity of prenuptial/ postnuptial agreements is a recurring topic of discussion in Italy, and certain academics have more than once incited the courts to change the consolidated interpretation. In recent years, there have been some isolated signs of open - ness (above all: Court of Torino, 20 April 2012 and Supreme Court, 24 February 2021 No 5065), and a change of the majority position of the courts is not excluded in favour of a newer and more modern approach. While prenuptial/postnuptial agreements are null and void in Italy, the choice of the matri - monial property regime (the regime governing
the property acquired by the spouses during the marriage) is admitted by law and does not inter - fere with the effects of legal separation/divorce between the spouses. The matrimonial property regime and legal separation/divorce effects are different issues that are to be dealt with sepa - rately. 2.6 Cohabitation The Italian system does not allow for the equi - table distribution of assets between unmarried couples (even of the same sex) at the moment of the breakdown of the relationship. This means that, if Italian law applies, the judge has no power to split or reallocate assets or resources between the parties. If there are common assets (ie, assets jointly pur - chased by the cohabitants), each party can ask for the division of these assets. Moreover, according to Law No 76/2016, it is possible for cohabitants (even of the same sex) to sign a “cohabitation agreement” (as a public deed in front of a notary public or as a private agreement authenticated by a lawyer, in both cases registered at the municipality) specify - ing the election of the property regime and the expectation of financial rights and duties between them. If the cohabitants did not enter into a cohabita - tion agreement, an Italian judge cannot award maintenance (paid monthly) to one of the par - ties, as unmarried parties are not able to ask for financial support from each other, no matter how long they have been together. (The parties are only entitled to ask for maintenance for chil - dren, which is not affected by whether the par - ents were married or not.)
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