Italian Family Law PDF

Machine Translated by Google ## THE FAMILY What is family? - The family* is defined by Article 29 of the Constitution as a natural society* founded on marriage (*that is, which does not derive from a legal construction but from an act of personal choice)...

Machine Translated by Google ## THE FAMILY What is family? - The family* is defined by Article 29 of the Constitution as a natural society* founded on marriage (*that is, which does not derive from a legal construction but from an act of personal choice). The family is constituted on affective and blood relationships/ ties (but not always), of a conjugal, parental or affinity nature (family relationships). Marriage* is the legal relationship that derives from marriage and consists of the bond regulated by law that unites husband and wife, from which reciprocal rights and obligations arise. - Affinity* is the legal relationship that binds the spouse with the relatives of the other spouse. art. 78 cc - Filiation* is the legal bond of descent that binds parents and children. There are two types of family: | -> LEGITIMATE family which contains people united in marriage. -> FACTUAL family that arises from the cohabitation of unmarried people (they can also have children). It must be registered with the Municipality through a cohabitation contract signed by a notary (de facto cohabitations with children). There are 3 familiar forms: | -> Marriage (art. 79 cc) - Marriage is reserved for heterosexual couples. - It requires cohabitation between spouses as a fundamental requirement except for justified exceptions (art.143 cc). -> Cohabitation in common law (Cirinnà law, 2016) - De facto couples and de facto cohabitation were legally recognized in 2016. - Accessible to all couples, both heterosexual and homosexual. - They require cohabitation as a fundamental requirement and STABLE, LONG-LASTING cohabitation. - Unlike marriage and civil unions, cohabitation does not begin with the celebration of a rite, but with a registry declaration at the Municipality of residence. - They become a de facto family if there are children. ^ or with a public deed. -> Civil unions (Cirinnà law, 2016) - Like de facto cohabitation, civil unions have been legally recognized since 2016. - Civil unions are reserved for homosexual couples. - They do not require cohabitation to be valid. - Guaranteed inheritance rights and the right to a survivor's pension. - Dissolution occurs through specific legal procedures. - Rights and duties equal to those of a 'normal' marriage. BUT, there is no obligation to be faithful. The surname is chosen by mutual agreement, they can directly divorce without a separation period. º The difference between them lies in the type of couple (heterosexual/homosexual), the acquired rights (rights successors) and the need for cohabitation. Machine Translated by Google MARRIAGE CIVIL UNIONS DE FACTO COHABITATION Regulatory source Civil Code L. 76/2016 L. 76/2016 Gender of the parts Opposite The same Equal or opposite Establishment of the Civil rite, concordat, other permitted cults Civil rite Personal data declaration bond (same rules as divorce) Rights and duties Loyalty, moral and material assistance, Moral and material Rights of assistance, collaboration in the interests of assistance, collaboration in the representation, housing the family and cohabitation interest of the family and cohabitation Legal Community of property Community of property It can be regulated by a cohabitation patrimonial (If one dies, the other inherits contract regime the assets) Succession rights Right to inheritance and reversibility Right to inheritance and No of the pension pension reversibility RELATIONSHIP* is the bond/tie between people who descend from the same lineage (att.75 cc) and therefore, a blood tie. The relationship can be in... | -> STRAIGHT or vertical line that starts from grandfather to son to grandson (parents and children, grandparents and grandchildren). Therefore, relatives descend from each other. -> COLLATERAL line instead, relatives, even if they have a common ancestor, do not descend from each other. (brothers, cousins, etc.) Kinship is measured in DEGREES, which count the generations of kinship, minus the lineage. - Degrees of kinship determine the rights that relatives can exercise. For example, the right to inherit , i.e. inheritance, and the right to take work leave for family reasons. For example, an employee can be absent from work due to the death of a relative within the second degree. - The law recognizes the kinship bond within the sixth degree (art. 77 cc). If a person dies without a spouse, children, or relatives within the sixth degree, the inheritance goes to the State. MARRIAGE is a legal act* that indicates the union between a man and a woman for the formation of a family and must be registered in the Municipality. It is regulated by law both as an act and as a relationship. - it is a legal act because it represents the personal will of the spouses, expressed during the ceremony. - it is a legal relationship because it creates a bond that lasts from the celebration until a dissolution and they are obliged to duties, also producing patrimonial and legal effects. ÿ *legal transaction is the manifestation of will by a subject, aimed at producing a legal effect. Machine Translated by Google From marriage arise RECIPROCAL rights and duties between the spouses (143) (art. 143 to 146), including: - "Obligation to fidelity, moral and material assistance". - "Collaboration in the interest of the family and cohabitation", therefore both spouses must satisfy the needs of the family, each according to their own economic possibilities and professional or domestic work capabilities. - "Wife's Surname". The wife takes her husband's surname. - "Citizenship of the wife". The wife retains her Italian citizenship. - The spouses agree among themselves on the "direction of family life and" establish "the family residence". - "Intervention of the judge" If the spouses cannot agree on important issues, the intervention of the judge can be requested without complicated procedures. The judge listens to the opinions of the spouses and, if necessary, also those of the cohabiting children who are at least 16 years old. - "Departure from the family home". A spouse who leaves the family home without just cause loses the right to moral and material assistance from the other. Just cause may be a request for separation, annulment, divorce or termination of the civil effects of marriage. The judge may freeze the assets of the spouse who leaves to ensure compliance with his or her obligations to the spouse and children. The prerequisites for marriage: | -> age of majority (18 years) -> capacity to act, to understand and to want -> Lack of kinship or affinity ties -> freedom of status (art. 86 cc) - Anyone bound by a marriage cannot marry. -> lack of impediments -> “Publication of marriage*”: This is the phase that precedes the marriage and serves to inform others of the spouses' intentions, allowing those who have the right to oppose it. ….The publication must be posted at the Town Hall at least 3 days before the ceremony. The marriage must be celebrated between the 4th and 180th day from the publication. If it is not published but celebrated anyway, a fine is paid. …If the marriage is celebrated in the presence of one of the conditions of impediment, it is null. ( Impediments/prohibitions to marriage: -> minors (-18a) -> interdicted -> marriage between third degree collateral relatives and second degree collateral relatives -> Marriage of someone who has killed or attempted to kill the other's spouse.) Machine Translated by Google Impediments to marriage.. there are 2 types: | -> IMPEDIATING Impediments (Art.89,139 cc) keep the marriage valid, but can be annulled and can provide for a sanction; - “Widow's mourning” or “Temporary prohibition on new marriages”: The woman must wait 300 days from the dissolution of a previous marriage to avoid doubts about the paternity of a possible child. - “Omission of publications”: the spouses and the civil status officer who have celebrated a marriage without this having been preceded by publications are punished with an administrative sanction. -> DIRECTIVE impediments (art. 84-88 and 122 of the Civil Code) render the marriage NULL: - Minimum age (18 years) must be reached unless a minor is emancipated. - Interdiction due to mental infirmity (they cannot marry.) - Absence of freedom of status that derives from a previous marriage or civil union not yet dissolved. (It is called BIGAMY if the person is already married) - Marriage between relatives or in-laws. - Marriage between a person who has committed or attempted murder against the spouse of the other person who is to be married cannot marry the victim. (If a person (the person to be married) has killed or attempted to kill the spouse of the person he or she wants to marry, he or she cannot marry that person.) - Faulty consent*: Consent obtained by violence or deception or consent based on a mistake regarding the identity or personal qualities of the other person. With annulment, the marriage is considered as never having happened. Some reasons could to be: - from diriment impediments - violation of the rules of form, for example the marriage was not celebrated by an authorized official. With annulment, the marriage is valid until it is annulled by a judge. Some reasons can be: - Mistake on the identity of a spouse or essential information omitted. (e.g. it is discovered that a person has omitted a previous conviction or has been married before) - Temporary lack of mental capacity at the time of marriage (but not declared interdiction) is possible within 1 year after the spouse has recovered full mental faculties. - Consent extorted by violence or fear/ tainted consent There are 4 types of marriage: | How are they formed? Do they celebrate? Do they register? Effects? -> CIVIL Marriage: - is regulated by the laws of the Italian state - It is celebrated in the Town Hall by the Mayor or the Civil Status Officer and in the presence of two witnesses. It is foreseen and regulated by the State. - During the celebration, the engaged couple must read the articles of the civil code that concern marriage (143, 144, 147), receive the declaration of both and declare the conclusion that the spouses are united in marriage. - It produces civil effects regulated by law and lasts as long as there is a cause for dissolution. Machine Translated by Google -> Non-Catholic/religious marriage - it is considered a civil marriage even if celebrated with a religious rite other than the Catholic one. - It is celebrated before a non-Catholic minister. - It only produces civil effects and not for the church - Once the act of reading the articles has been completed and the declaration of the spouses has been collected, the minister must send the marriage certificate/official document certifying the marriage to the Civil Status Officer the celebration has taken place.. which is then transcribed in the Civil Status registers, making the marriage valid. (civil effects) -> Concordat marriage - It is celebrated in church before a priest with a Catholic rite that follows canon law. At the end of the ceremony, the priest reads the articles of the cc - It produces civil effects, which are regulated by law, and religious effects/it produces civil effects and canon law , which considers marriage a sacrament. -> Marriage civil unions - it's a civil marriage, only the couple is homosexual ## FAMILY RELATIONSHIPS In 1865, there was the HIERARCHICAL FAMILY* which is a patriarchal model in which the family is organized in a hierarchical structure with the father at the top. The husband's authorization was necessary to manage assets or perform legal acts while the wife was incapable of acting legally, thus exercising MARITAL AUTHORITY over the wife and PARENTAL AUTHORITY over the children. In 1942, the civil code gave the husband "marital authority" (art.144), he was the head of the family and the wife had to follow his residence and acquire his surname. - At the time, there was only the patrimonial regime of automatic separation of assets, with a prejudice against the wife. - There was gender inequality in which the adulterous wife was punished by law, while the husband was not. - Art.316 cc establishes that the father exercises parental authority. Only in cases of death of the father, it is exercised by the wife. - Art. 252 of the Civil Code prohibited the recognition of adulterous children. - The husband who keeps a concubine in the marital home is punished with imprisonment of up to 2 years. - The dowry* is the sum of the assets that the wife brought to her husband as a contribution to the costs of the marriage. Italian Constitution 1948 (on 1st January women's rights were recognised): - Art. 29: marriage is based on the moral and legal equality of spouses - Art. 30: parents must instruct, maintain and educate their children, even those born out of wedlock. - Art. 31: Protection of maternity and childhood with economic and social measures. Machine Translated by Google There was a reform of family law in 1975. L. 151/1975 provides for: - Abolition of marital authority: husband and wife become equal in rights and duties. - Abolition of parental authority which is replaced by shared parental authority, today called PARENTAL RESPONSIBILITY. - Community property was introduced. In which, the property acquired during the marriage belongs to both spouses by 50%, except for personal property as inheritance. - Overcoming the differences between legitimate, natural and adoptive children. Equal inheritance rights for all children and the prohibition of recognition for adulterous children is eliminated. - Art. 143 cc obligations of spouses: fidelity, moral and material assistance , collaboration and cohabitation, joint decisions on residence and management of the family, economic contribution or through housekeeping. - Art.147-148 cc: Maintenance, education and instruction according to the abilities of the children. The ascendants/ grandparents can support the parents in case of economic difficulties. Article 316 reforms: | -> 1942: parental authority, the code reflects a patriarchal model in which the father had absolute authority. -> L. 151/1975: shared parental authority. It introduces parental equality, allowing both parents to exercise rights and duties in a shared manner over their children. -> Legislative Decree 154/2013: parental responsibility. strengthens this equality, introducing the listening of the minor and more modern measures for the protection of children, even those born out of wedlock. In the family property regime, today, spouses can choose between community or separation of property. The legal regime provided by law is that of community unless the spouses declare that they choose the separation of property in the act of celebrating the marriage or with a stipulated agreement with a public deed. - COMMUNION OF PROPERTY*: the property acquired during the marriage is common to both spouses. Ordinary administration acts can be carried out separately but for extraordinary administration acts , the consent of both spouses is required. ### THE DISSOLUTION OF THE MARITAL RELATIONSHIP The dissolution of marriage can be consensual or judicial (legal/de facto separation and divorce). Divorce and separation change for patrimonial and personal effects. -> The Cartabia reform came into force in 2023 and modified and simplified the legal management of separation (both consensual and judicial) and divorce, making them more efficient and faster. Separation can be LEGAL or FACTUAL. In separation, the spouses are still married unless they divorce... Legal separation* is a legal institution recognized by law that allows spouses to live separately when "cohabitation has become intolerable" (Art.150 cc) Machine Translated by Google - The aim may be to arrive at a reconciliation or to the dissolution of the marital bond and definitive cessation of the legal effects of the marriage. - In both cases, separation entails the suspension of mutual duties, collaboration, cohabitation, contribution and the obligation of fidelity and also the cessation of the community of property. Regulated aspects of legal separation: | -> MAINTENANCE ALLOWANCE: - The economically weaker spouse is entitled to maintenance (calculated on the basis of income, assets and previous standard of living). - If there are minor or non-economically independent adult children, the custodial parent receives a contribution for their maintenance. | -> DISSOLUTION OF COMMUNITY PROPERTY: it is dissolved and each spouse obtains 50% of the common property. -> FAMILY HOME ALLOCATION: - Children have the right to remain in the family home. - The parent who lives with the children can continue like this until the children become independent economically. - It applies only in cases of divorce or separation and is ordered by the judge -> FAMILY ALLOWANCE - it is an economic support for the family unit with low incomes. DE FACTO SEPARATION* is when the spouses decide to end their marital cohabitation without going to court. -> It is not regulated by law (the legal one yes), it is a private choice, without legal recognition or protection. -> It has no legal effects -> No protection for the economically weaker spouse. -> The patrimonial and personal aspects are not formalized. CONSENSUAL separation* is when the spouses agree on personal and financial aspects (e.g. maintenance, children, division of assets). - It takes a minimum of 6 months to obtain a divorce before the Civil Status Officer. - The Court approves the agreement if it deems it to be in the best interests of the children and the family. JUDICIAL separation*, on the other hand, is an institution for when the spouses are unable to reach an agreement and therefore turn to the Court. - The judge establishes the conditions of the separation (e.g. child custody, maintenance, division of assets). - It takes a minimum of 1 year to obtain a divorce before the Civil Status Officer. Divorce* was introduced in Italy in 1970, it is the legal institution that decrees the end of a marriage definitively, ceasing the legal effects of the marriage. Machine Translated by Google In 2015, law 55 introduced the short divorce* which differs from the normal divorce (which previously lasted 3 years of waiting) due to the reduction of times and simplification of the procedure. (And legal communion) - It occurs when both spouses agree on all aspects of the separation, including issues relating to the division of property, child custody, and maintenance. | You can request it in… -> COURT: takes place before the president of the court. -> MUNICIPALITY: the spouses can dissolve the marriage directly at the registrar, without having to go to court. It is possible only if there are no minor children, incapacitated persons, etc. -> ASSISTED NEGOTIATION: occurs through the mandatory assistance of lawyers for both parties, avoiding going to Court. Not possible if there are minor children, incapacitated, etc. Like separation, there is consensual and judicial divorce. | -> Consensual: can take place in the Municipality. It is not possible if there are minor children or adult children with disabilities, incapacity or economic dependence. -> Judicial: you must contact the judge. Personal and patrimonial "legal" effects of divorce: | -> Personal: - Termination of marriage/marital bond (freedom of status) - Termination of marital duties -> Assets: - Alimony: the economically weaker spouse receives financial support from the other spouse. - Dissolution of legal community. - Loss of inheritance rights: the spouse loses rights to the inheritance of the former partner. - Child custody: it can be shared or assigned to one of the two spouses, in the latter case, the other spouse must pay maintenance. - Family home assignment. -> Legal: - Loss of husband's surname - Dissolution of marriage including rights and duties RIGHT TO FOOD RIGHT TO MAINTENANCE It guarantees the bare minimum Guarantees previous standard of living It is only for those in need It is due by legal obligation (e.g. children or separated spouse) It is limited to basic needs Includes broader expenses (e.g. housing, health, education) It does not depend on the separation/divorce Related to separation or divorce Machine Translated by Google DIFFERENCE: in separation, the spouses remain legally married, while in divorce the marriage is formally dissolved, making the spouses legally single. ## PROTECTION OF MINORS Filiation* is the legal relationship between parents and child (of any kind) from which mutual rights and duties arise. - In the 1942 civil code, they are divided into LEGITIMATE children and ILLEGITIMATE children - In 1975 they are LEGITIMATE and NATURAL children (same but with different term) and ADOPTIVE children **** - in 2012, they are all considered children on the same level and legal status. Children's rights (parental responsibility*): - To be supported - To be educated, instructed, physically and morally supported, especially in their own family - The right to have their aspirations and decisions heard from the age of 12 or even younger if the child is mature enough. - Even if he or she reaches the age of majority, he or she has the right to what is necessary for his or her support until he or she reaches economic independence. —ÿ Parental responsibility is the responsibility to protect, educate, instruct, maintain and care for children. Duties of children: - Respect their parents - Contribute to the maintenance of the family according to their possibilities - The child cannot leave the parents' home unless he or she is of age or there are special cases. Parents are the legal representatives of their children in all civil matters and administer their assets (320 cc). - Ordinary administration acts can be exercised separately - Extraordinary administration acts must have the consent of both parents. FOSTER CARE* is a temporary intervention (not exceeding 24 months) that promotes the growth of a minor who finds himself in a situation of temporary difficulty for various reasons. To choose foster parents, relatives within the 4th degree are always sought, otherwise the children are entrusted to a family (preferably with other minors) or a single person capable of meeting the minor's needs. - Anyone can become a foster family without age limits - The foster child maintains ties with the family of origin and keeps the surname | Machine Translated by Google ÿ Consensual custody is when the parents give consent to the social services of the Municipality with the supervision of the judge to place the children in foster care. The judge can decide whether the children are entrusted to one of the parents (sole custody) or to both parents (shared custody). ÿ Judicial custody is when the parents do not agree with the custody and therefore the judge makes the decision. The state of abandonment* indicates minors without moral and material assistance within the 4th degree of kinship. ADOPTION* is a legal procedure used to recognize as a legitimate child a person born into another family/legal institution that allows for the formation of a civil filiation, guaranteeing the child the right to live peacefully within a family. Unlike foster care, it is a definitive intervention in which.. - Adoption breaks the ties with the family of origin and changes the original surname permanently. | | REQUIREMENTS FOR ADOPTION -> Marriage and/or cohabitation of 3 years -> The age difference between the adopted and the adoptive parent must be at least 18 years and a maximum of 45 years. Obviously there are special cases. -> That the adopter is suitable, has the ability to educate, instruct and maintain the minor, ensuring safety, etc. | | ADOPTION PHASES -> 1) The declaration of the adoptability status: when the minor is abandoned and there are no relatives or parents. -> 2) Pre-adoptive placement (1 year): - To obtain it, an application must be submitted to the Juvenile Court. - The Court and social services check the requirements and suitability of the couple. - You go to the guardianship judge for reference. - Once the year has passed, we proceed with the adoption. (it does not always result in the adoption) -> 3) The actual adoption | | TYPES OF ADOPTION -> Legitimizing adoption: When the minor is in a state of permanent abandonment. -> Adoption of adults: When the adoptee is an adult -> International adoption: When a foreign child is adopted. -> Adoption in special cases/not legitimizing: When the adopted person does not fall into the state of abandonment.