9 Which is the competent authority to turn to in cases of disputes and other legal issues?
For all legal actions brought, judgments given and acts issued until 28 January 2019, the sole competency resides with the courts. As a general rule, Italian courts have jurisdiction when the defendant is domiciled (the domicile of a person is in the place where he/she has established the principal center of his/her business and interests; Art. 43 CC) or resident (the residence is in the place where a person habitually lives; Art. 43 CC) in Italy (Art. 3 Law No. 218 of 31/05/1995).
In addition, in matters of nullity and annulment of the marriage, personal separation and dissolution of the marriage, Italian courts have jurisdiction also when one of the spouses is an Italian citizen or the marriage was celebrated in Italy (Art. 32 Law No. 218 of 31/05/1995).
For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.
This Regulation provides that the competent authorities will be as follows:
- For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).
- In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.
- In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:
- of the spouses’ common habitual residence at the time the court is seised; or failing that
- of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
- of the habitual residence of the respondent; or failing that
- of the spouses’ common nationality.
With the exception of any litigation, notaries are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage agreements or a choice of law agreement.
