Hi all,

I was hoping you could help me understand what would happen if a
couple of Italian citizens, married in Italy (in a city hall: no
religious marriage) but resident in England, were to divorce.

Which court would have jurisdiction: the English one, as both reside
in England, or the Italian one, as they are both Italian citizens? If
there are assets in both countries, would one court have jurisdiction
on all assets, or only on the assets in its country?

Furthermore, in Italy it is possible to choose "separation of the
assets" when getting married: in other words, if this box is ticked,
Italian law does not assume assets are jointly held by both spouses.
As far as I know no such thing exists in England. Would an English
court recognize "separation of the assets" in the case of an Italian
couple married in Italy or not?

Thanks!

On Fri, 12 Sep 2008 15:45:07 +0100, Mario Rossi put finger to keyboard
and typed:

>Hi all,
>
>I was hoping you could help me understand what would happen if a
>couple of Italian citizens, married in Italy (in a city hall: no
>religious marriage) but resident in England, were to divorce.
>
>Which court would have jurisdiction: the English one, as both reside
>in England, or the Italian one, as they are both Italian citizens? If
>there are assets in both countries, would one court have jurisdiction
>on all assets, or only on the assets in its country?
>
>Furthermore, in Italy it is possible to choose "separation of the
>assets" when getting married: in other words, if this box is ticked,
>Italian law does not assume assets are jointly held by both spouses.
>As far as I know no such thing exists in England. Would an English
>court recognize "separation of the assets" in the case of an Italian
>couple married in Italy or not?

Divorce proceedings which take place in England will do so according
to English law and will not take account of any pre-marital agreement
which is not legally binding in England. It would, therefore, not
recognise an Italian "separation of the assets" agreement. The court
will rule on the disposal of all assets, including those outside the
UK, although this may not be easy to enforce if one or both parties
are non-cooperative.

As the couple are both still Italian citizens, they could opt to have
the divorce handled by the Italian courts. In this case, the divorce
would be according to Italian law (including recognising the
separation of the assets clause) and would also dispose of assets held
in England.

If the divorce is a contested one, it is quite likely that different
options would be preferable to different parties in the divorce (for
example, a wife who stands to gain 50% of her husband's assets may
prefer the English courts, a husband who wants to restrict his wife to
the property listed as hers in the separation of assets clause may
prefer to take the case to Italy). As a general principle, the first
court to receive the case will handle it[1]; if papers are
subsequently filed in the other country then that court will defer to
its counterpart which has already begun proceedings. So if you are
talking about a real case here, rather than asking a hypothetical
question, then both parties need to get real, paid-for professional
advice as a matter of urgency.

[1] This is part of the Brussels II agreement, which, in short, says
that where two or more countries have jurisdiction over a matter
related to family law (eg, divorce, adoption, custody, etc), then the
party bringing the action has the choice of which country's courts to
use. Not all EU countries are signatories to BII, but both the UK and
Italy are so it does apply to the scenario described here.

Mark

On 12 Sep, 20:35, Mark Goodge <use>
wrote:

> Divorce proceedings which take place in England will do so according
> to English law and will not take account of any pre-marital agreement
> which is not legally binding in England.
> It would, therefore, not
> recognise an Italian "separation of the assets" agreement.

I see. However, the "separation of the assets" (separazione dei beni)
is by no means a pre-nuptial agreement: afaik Italy is even stricter
than the UK in not recognizing pre-nups. It simply means that ticking
this box allows the husband to own assets not shared with the wife and
viceversa. For example, it is very useful if the husband is an
entrepreneur, as this clause prevents the husband's creditors to have
any claims on her assets (or viceversa).
Would this still not be recognized in England?

[..]
> example, a wife who stands to gain 50% of her husband's assets may
> prefer the English courts, a husband who wants to restrict his wife to
> the property listed as hers in the separation of assets clause may
> prefer to take the case to Italy). As a general principle, the first
> court to receive the case will handle it[1]; if papers are
> subsequently filed in the other country then that court will defer to
> its counterpart which has already begun proceedings. So if you are
> talking about a real case here, rather than asking a hypothetical
> question, then both parties need to get real, paid-for professional
> advice as a matter of urgency.

I see. It is a hypothetical question which I hope will never become a
real one :) but at the same time it's good to be realistic and just
understand what the law is like.
In terms of costs and timing, is there any such average for divorces
in England? One of the huge problems in Italy is that the whole
judicial system is worthy of a 5th world country, and trials take
ages, be it a divorce or a homicide. I appreciate it's one of those
how-long-is-a-piece-of-string questions, but any indication would be
useful :)

> [1] This is part of the Brussels II agreement, which, in short, says
> that where two or more countries have jurisdiction over a matter
> related to family law (eg, divorce, adoption, custody, etc), then the
> party bringing the action has the choice of which country's courts to
> use. Not all EU countries are signatories to BII, but both the UK and
> Italy are so it does apply to the scenario described here.

Thanks!