It can happen that in a family, after getting married in Italy, they want to divorce or separate and therefore legal disputes often arise between the parents both in terms of financial support and in terms of child custody. In these cases, a divorce and separation lawyer in Italy can help you.
The issue becomes even more complex if the parents are of different nationalities and decide to continue living in different countries.
In these cases, where will the legal dispute take place? In Italy or in a foreign court?
You should know that there are specific European laws governing the matter in order to identify, in the event of divorce and separation in Italy, which will be the competent court and, therefore, where the case will take place: whether in Italy or abroad.
Precisely on this subject, there was an interesting judgment of the Court of Justice of the European Union in case C-289/20 that established very important principles to correctly identify the competent court in cases of international divorce.
In this article, therefore, I want to talk to you about this and, if you want more information or specialized advice on divorce and separation in Italy, do not hesitate to contact our law firm, which provides legal assistance in these cases.
If you need an international lawyer specialized in divorces and separations in Italy, do not hesitate to contact us immediately. We will be able to follow your case in the best possible way.
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Premise: the historical fact
A couple formed by a French and an Irish citizen celebrated their marriage in Ireland in 1994.
From the conjugal relationship, children were born who have become adults.
In 2018, the French husband filed for divorce before the ordinary court of Paris, which however declared itself territorially incompetent.
In fact, in matters of marriage between spouses of different nationalities and, more specifically, in matters of territorial jurisdiction to hear the divorce action, the regulation is entrusted to Regulation (EC) No. 2201/2003, repealing the former Regulation (EC) No. 1347/2000, conventionally known as the Brussels II bis Regulation.
This rule identifies the jurisdiction of the judge called upon to decide on the divorce application of one of the spouses as the one where the applicant has his or her “habitual residence“.
However, since the applicant lived with his wife and children in Ireland, but had nonetheless been going every week for several years to France – where he had established the center of his professional interests – he also referred to the Court of Appeal of Paris, to judge the legitimacy of the decision of rejection formulated by the Judge of the Court of Great Instance.
The Paris Court of Appeal, noting that the applicant actually had two residences, referred the matter to the Court of Justice of the European Union, asking if a spouse who shares his life between two Member States can have his own “habitual residence” in the two Member States.
The reference legislation
The aforementioned Brussels II bis Regulation aims to regulate the issue of the Judge’s competence to resolve divorce claims by establishing, in art. 3, paragraph 1, letter a), seven criteria.
Therefore, this law also governs divorce and separation in Italy.
And indeed, the aforementioned provision provides that:
1. They are competent to rule on matters relating to divorce, the personal separation of the spouses and the annulment of the marriage the judicial authorities of the Member State in whose territory it is situated:
- the habitual residence of the spouses, or
- the last habitual residence of the spouses if one of them is there or still resides, or
- the habitual residence of the defendant, or
- in case of joint application, the habitual residence of one of the spouses, or
- the plaintiff’s habitual residence, if he resided there for at least one year immediately prior to the application, or
- the habitual residence of the applicant if he has resided there for at least the six months immediately preceding the application and is a national of the same Member State or,
- in the case of the United Kingdom and Ireland, have his “Domicile” there.
Therefore, it is evident that the definition of “habitual residence” becomes a central element for the resolution of the legal question submitted to the French judges and delegated by them to the European judges.
The decision of the judges of the Court of Justice of the European Union
The European judges, questioned on this point by the Paris Court of Appeal, can only verify a true interpretative gap in the law of the European Union.
And indeed the Judges affirm – in the case of international divorce and separation – that a person cannot have more than one “habitual residence” in several Member States, thus giving a clear answer to the question formulated by the French judges.
This is to avoid dangerous cases of “legal insecurity”, a need mentioned several times during the sentence, where it is pointed out that
“in the absence of a definition of the concept of ‘habitual residence’ in the Brussels IIbis Regulation or of an express reference to the legislation of the Member States in this regard […] this concept must be interpreted autonomously and uniformly”.
The Court of Justice points out that there is no provision in the aforementioned rule that allows a person to have several habitual residences or a habitual residence in several places at the same time.
Therefore, it must be concluded that the “habitual residence” of a citizen of a Member State can only be one, and only one.
The Court of Justice of the European Union then undertook an extensive examination of the notion of “habitual” residence in international divorce cases, in order to determine jurisdiction in matters of dissolution of marriage.
Through a complex but certainly admirable exegesis, the Court of Justice of the European Communities has come to identify two criteria to define residence as “habitual”, that is:
- the will of the citizen to establish the habitual center of his interests in a certain place;
- a presence indicating a sufficient degree of stability on the territory of the Member State concerned.
Therefore, the judges of the Court of Justice of the European Union conclude in these terms the reasoning of the judgment handed down following the question raised by the Paris Court of Appeal:
“Only the courts of the Member State in which the habitual residence is located have jurisdiction to rule on the application for dissolution of the marriage. It is for the national court to determine, on the basis of all the particular factual circumstances of the case, whether the territory of the Member State to which the applicant belongs corresponds, within the meaning of Article 3(1)(a) of the Brussels IIa Regulation, to the place where the applicant has transferred his habitual residence”.
A missed opportunity? The merits and defects of the decision in question
The judgment of the Court of Justice of the European Union has the undoubted merit of having given a clear-cut answer to one question, and the undoubted defect of having opened the door to other, very numerous, questions.
On the one hand, it is established that a person cannot have more than one habitual residence and, therefore, cannot refer to this circumstance in cases of divorce and separation in Italy of an international nature.
On the other hand, the criteria of identification are not dictated, so that, ultimately, this assessment is left to the discretion – if not to the arbitrariness – of the Judge who, in the absence of normative indications in this regard, must find elements of nature to define when the applicant’s residence has the character of “habitual residence“.
In particular, while it is true that the European judges establish two criteria to identify the habitual character of the residence of a citizen of the Member State, it is also true that these criteria are almost empty formulas, not suitable to identify anything.
And indeed, on closer inspection, the notion of “fixing the habitual center of one’s interests“, mentioned in the first criterion dictated by the European judges, is still obscure.
Equally obscure is the notion of “a sufficient degree of stability“, mentioned in the second criterion issued by the European judges.
The result is the same: the difficulties of interpretation of the formula “habitual residence” are replaced by (rectius: added) difficulties of interpretation of the formulas “habitual center of interests” and “sufficient degree of stability“.
The premise on which the European judges relied is obviously betrayed.
If, indeed, it is excluded that a person can have several residences, in order to face a dangerous situation of legal uncertainty, on the other hand the proposed solution opens – if possible – to an additional and, for certain aspects, even more limiting degree of legal uncertainty.
In fact, the burden of fulfilling the notion of “habitual” with a test that is certainly discretionary and without legal basis falls on the judge, with the resulting difficulties.
It is clear, in fact, that in the absence of law, the judiciary must – in Europe, as in other areas of any legal system – fill the normative gaps by exercising, at times, real political power.
This dangerous drift imposes a barrier which, perhaps, in the limited scope of the sectoral matters that interested it, the Court of Justice of the European Union could have set more incisively and that would have left room for more restricted areas of interpretation, so as not to give rise to a real discretionary will of the judges of merit.
Why contact an expert divorce and separation lawyer in Italy?
We can help you if you are facing a separation or divorce in Italy. As you have seen, we know the international law that applies to family law.
The best defense that we can guarantee you is a result acquired only with experience and in-depth knowledge of legal regulations.
In the case of family law, it is important to know the legislation of the civil code, international legislation and have experience accumulated over the years. This is why you should trust an international divorce and separation lawyer in Italy.
We can guarantee this type of service.
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