If foreign spouses residing in Italy want to divorce, the Italian Court will rule, even if the marriage was celebrated abroad.

This principle was recently stated by the Court of Monza (judgement no. 3001/2018), which recalled EU Regulation no. 1259/2010. In fact, according to this European Regulation, it is up to the Court where the habitual residence of the spouses is located, to decide on the divorce. 

Habitual residence means the place where the personal and working life of the spouses is actually and continuously carried out, when the petition for divorce is filed.  

In particular, Article 5 of this Regulation allows the spouses to designate, by written, dated and signed agreement, the law applicable to divorce and legal separation provided that it is one of the following law:

1. the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
2. the law of the State where the spouses were habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
3. the law of the State of nationality of either spouse at the time the agreement is concluded; or
4. the law of the forum (the law of the jurisdiction in which a legal action is brought).

Nevertheless, in practice, it is rare for the spouses to have concluded this type of agreement. In absence of a choice by the parties, in fact, Article 8 provides that divorce and legal separation shall be subject to the law of the State:

1. where the spouses are habitually resident at the time the court is called to decide; or
2. where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was called to decide, in so far as one of the spouses still resides in that State at the time the court is called to decide; or, in the lack of the foregoing
3. of which both spouses are nationals at the time the court is called to decide; or, failing that
4. where the court is firstly called to decide.

It is clear, therefore, that the law of the State of habitual residence of the spouses is preferred. However, it should be pointed out that the court cannot rule on the custody of minor children if they are resident in another State. According to the Italian Supreme Court, the court of the place where the child is habitually resident has jurisdiction.

Recognition of foreign divorce

To obtain recognition of European divorce in Italy, it is necessary to ask the judge who has ruled to issue the appropriate certificate in accordance with European Law.