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Going through a divorce in any jurisdiction is without doubts a difficult experience for anyone involved. Going through a divorce that involves additional complications such as choice of appropriate jurisdiction, can be even more stressful and intimidating. There are profound differences in how the two jurisdictions approach what is commonly known as the “matrimonial pot”. There are further differences in how judges in the two jurisdictions would approach assets that do not come under the definition of matrimonial assets.
In Italy the standard financial regime upon marriage is called “Comunione dei beni” this means that all assets acquired by one or both spouses after marriage, are part of the matrimonial pot and therefore automatically belong to both parties in equal shares.
The spouses are however, able to choose a different financial regime and therefore how the matrimonial pot will be constituted. This can be done by simply declaring in writing during the ceremony that the parties wish for “Separazione dei beni” to apply. This will be recorded on the marriage certificate and will determine that each spouse remains the sole owner of anything acquired after marriage unless the asset is bought in joint names.
Opting for “Separazione dei beni” will impact the division of assets should the marriage come to an end.. If the regime is’’ Comunione dei beni’’, the assets will have to be equally divided, whereas if the spouses chose ‘’Separazione dei beni’’, each party will remain the owner of their respective assets.
It is extremely important to consider the appropriate regime when getting married in Italy especially when one of the parties is wealthy or assets involve particularly valuable properties or businesses. Choosing Separazioni beni is also helpful to protect any asset or business with a sentimental value (i.e. a family business, or a family home, even of low economic value).
In England parties are unable to choose the financial regime similar to the one in Italy. All assets belonging to the parties whether in joint or sole names in some instances will be taken into consideration as assets that can be used to meet parties’ needs should the marriage break down.
The starting point under English law is that the matrimonial pot will need to be divided between the spouses on a 50/50 basis. Should the marital assets be insufficient to cover both parties` needs, then the court will consider parties’ needs and all available assets in the UK and abroad to reach a fair division.
It is important also to be aware that in England, should the matrimonial assets be insufficient to meet the parties` needs the Court can also take into consideration assets acquired before marriage, to include inheritance.
This is another major distinction when considering division of assets in both jurisdictions, as in Italy some classes of assets such as inheritance for example would be excluded from the court’s consideration. This means that in Italy even you chose Comunione dei beni some assets acquired before or during marriage will not be considered part of the matrimonial pot., whereas in England they can always take be taken into consideration.
As general rule, in Italy money received as compensation for personal injuries, assets acquired before marriage, assets that have been inherited or life insurance policies will not usually be considered part of the matrimonial pot and therefore taken into account in the division, whereas in England this is not always the case.
If you apply for a divorce in the UK, and have assets in the UK you will most likely need to solve financial matters in accordance with the English Law. If you got married in Italy and chose Separazione dei beni as a regime, this unfortunately means that the regime chosen at the time of marriage will not apply.
Whilst in England it is not possible to choose a financial regime such as “Separazione dei beni”, there are a number of options that should be considered to protect your assets. . You mayconsider a pre-nuptial or post nuptial agreement to set out how the assets should be divided in case of separation or a divorce. the marriage come to an end.
Whether you are already married, or have just decided to start a family and need an advice on assets protection or division, it is important to be aware of the differences between the jurisdictions. Legal advice can help to protect your family assets, avoid disappointment and minimise risk of lengthy litigation.
Our family team here at IMD Solicitors is made of experts that can assist you in both jurisdictions. We can provide you with detailed advice related to your specific circumstances whether facing a divorce in England or Italy, or planning a family and simply looking for clarification on how to approach marriage in the two different countries.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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