Nuptial Agreements in Italy
It is known that nuptial agreements are taken into consideration by the English courts if they were drawn up by the parties, when drafted upon receiving independent legal advice and aimed at achieving a fair outcome.
The case of Radmacher v Granatino showed how the English courts would be satisfied to consider the terms of an agreement if, given the circumstances of the case, fairness is achieved and neither of the parties have been pressurised into signing such agreement.
Italian Family law, on the contrary, does not recognise any nuptial agreements at all, as they are deemed void.
According to article 162 of the Italian Civil Code, spouses can decide the way in which they will own property when married, either before or after the wedding ceremony. Spouses may choose between the community of property regime or the separation thereof, but they cannot, however, freely and contractually determine or regulate the way in which property is to be dealt with upon divorce.
It is in fact the Italian courts’ views that a nuptial agreement may diminish or eliminate the weaker party’s ability to make claims against the other spouse due to the terms of the agreement itself.
Nevertheless, occasionally the Italian High Court (“Corte di Cassazione”) has in several of its judgments chosen to enforce certain specific agreements when seeking to deal with one specific asset, rather than the whole of the parties’ financial claims on divorce, such as an agreement between spouses stipulating that in the event of divorce, a particular property ought to be transferred to one spouse, as compensation for their expenses in relation to that same property throughout the marriage.
There are various inconsistencies in the current case law but even though it appears that Italian nuptial agreements will not be held enforceable by Italian Courts as such, but they may be upheld if they are simply agreements relating to finances reached following the separation or divorce as long as they are freely entered into, there is no evidence of duress, and, if there are children involved, they must not prejudice them.
Proposals to change the validity of pre-nuptial agreements were made in 2014, with the draft amendment n. 2669 to the Divorce Law, to include nuptial agreements as a possibility for two spouses to make financial provisions after their relationship breakdown, and for it to be recognised by a judge, but this did not proceed.
It is hoped that this may be reconsidered in the future, as the only option spouses have in order to share their assets upon divorce, is to elect for the “separation of assets” (separazione dei beni) matrimonial regime, which allows a spouse to retain the exclusive property of all the assets inherited or obtained outside/prior to the marriage.
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