Separation and Divorce of International spouses Competent Jurisdiction and Applicable Law

Living in a modern, global world the number of international spouses/civil partners is constantly increasing. Divorce and separation procedure of the international spouses/civil partners are regulated by the EU regulations n.1259/2010 and n. 2201/2003.

In particular, article 3 of EU Reg n. 2201/2003 states the criteria to identify the competent Court, whilst EU Reg n.1259/2010 regulates guidelines to assess the applicable law.

To identify the Competent Jurisdiction reference is made to:

1. the habitual residence of one of the spouses in case of a joint application. In order to avoid any conflict-of-law the Court of Justice stated the official definition of habitual residence as the place of permanent and habitual interests of family life.
2. the residence of both spouses if the legal action is taken by one of the spouses;
3. the last residence of spouses if one of them still resides there;
4. the country where spouses are citizens or of their “domicile” (within the UK);
5. In case spouses have dual citizenship, the spouse who first files the lawsuit is entitled to choose the Court (between the two member states) which will apply the law of its own State;
6. where no court is competent, according to the above criteria, the judge will be determined by the law of the country where the claim is submitted.

Granted the above, foreign spouses can apply for separation in Italy only in case of:

1. marriage registered in Italy
2. marriage officiated in Italy
3. spouses are still residents in Italy.

Italian spouses living abroad are subject to the jurisdiction of the State of their habitual residence or, alternatively, of the Italian Judge.

It is important to highlight that in case the child is resident in a different state, competent court for separation is still not allowed to decide on child custody and alimony obligations. Indeed, if the child is habitually resident in a different member state, the latter’s court will be the competent one.

With reference to the Applicable law EU Regulation states that the spouses are entitled to agree which law will be applied to their separation and divorce, choosing the most favourable to protect their own interests.

To identify the Applicable Law reference is made to:

• The law of the country where the spouses have their habitual residence;
• The law of the country of couple’s last residence if one of them is still living there;
• The law of the country of which one of the spouses is citizen;
• The law of the country where the parties have submitted the claim.

In the event that no agreement has been reached, spouses may rely upon:

1. the law of the country where they usually live;
2. the law of couple last residence;
3. the law of the country of which they are both citizens;
4. finally, the law of the state they have submitted the claim.

E.G.: Italian citizens residents abroad may choose the law of the country they are living in or the Italian law as Italian nationals. Whilst foreign spouses living in Italy may choose the Italian law or alternatively the law of their nationality. If no choice has been made, it will be applied the Italian law.

Considering the complexity of the above regulation, it is highly recommended to appoint an international family team of lawyers who can assist you with the choice of the competent court and the most favourable law to be applied to both separation/divorce, child custody and alimony obligations.

For any further information please contact us