Marriages’ rights extended to same-sex partnerships in Italy.

In 2016 Italy approved the law regulating civil unions between same-sex couples, giving them more legal protection.

Despite the fact that this law has been approved with a great delay in comparison to other European countries, the social changes that are undergoing in Italy have been taken in consideration by the Parliament.

What are civil unions?

Civil unions are based on an emotional and economic bond between the members of the couple.

They were officially established by law 76 of May 20, 2016, also known as the “Cirinnà law”(from the name of the Senator that proposed this law, Monica Cirinnà), published in the Official Gazette of the Italian Republic on May 21, 2016.

Thanks to this law, same-sex couple partnerships have a similar legal status to a married couple.

This law not only established civil unions in Italy, but contains regulations on cohabiting unmarried couples’ (both heterosexual and homosexual) economic assets as well.

How are civil unions formed?

According to paragraph 2 of the Cirinnà law, in order to establish a civil union it is necessary to declare the will to form the civil union in the presence of a registrar officer (the mayor or his substitute) and at least two witnesses.

In the document of constitution of the civil union the couple’s personal data, residence, the chosen property regime (community of property or division of assets), as well as the personal data and the residence of the witnesses must be present.

The document will be registered in the Registry Office.

Are there any differences or similarities between civil unions and marriage in the Italian law?

First of all, civil unions can be established only between same-sex adult couples.

In civil unions the family surname is chosen among those of the couple, but one can add their partner’s surname to their own (either before or after); while in marriages wives take their husbands’ surname.

As for the contracting parties’ obligations in civil unions, the Cirinnà law does not refer neither to faithfulness or collaboration obligations; in marriages such obligations are explicitly stated (in article 143 of the Italian Civil Code).

The reasons leading to invalidity or that make it possible to appeal against civil unions and marriages are the same: law 76/2016 refers to the Civil Code articles that regulate marriage.

The dissolution of civil unions are immediate. As for marriage, a period of separation before divorce is imposed by the law.

In civil unions the property regime, unless otherwise explicitly stated by the contracting parts, is the community of property: paragraph 13 of law 76/2016 refers to the Civil Code’s provisions which regulate marriage.

Duties and rights of the couple

As for the duties and obligations, the contracting parties must cohabit and assist each other materially and morally, contributing to common needs according to their possibilities and working capacities.

As aforementioned, the Cirinnà law does not dictate faithfulness, nor collaboration duties, (which are imposed for marriages).

Can a civil union be prevented or nullified?

Paragraph 4 of law 76/2016 establishes which reasons can hinder the establishment of a given civil union:

  • one of the contracting parties is currently married (or is currently part in a civil union) with another person;
  • the contracting parties are relatives;
  • one of the parties is unfit to plead;
  • one of the parties has been sentenced for homicide (or an attempt of thereof) of whomever is married or has a civil union with the other contracting party.

The existence of even only one of these conditions leads to a declaration of invalidity of the civil union.

However, according to paragraph 6 of the law, the declaration of invalidity can be appealed against by the contracting parties, by their closest relatives, by the Prosecutor, or by anyone who has a legitimate interest on the establishment of the civil union.

Furthermore, the civil union can be appealed against if consent of one of the contractors was extorted by the means of violence or intimidation, or if there are hidden traits and details in one of the contractor’s life and personality, whose knowledge by the other contractor would not have led to consent on the establishment of the civil union (physical or metal illness; conviction for malicious crimes whose punishment is no less than 5 years of imprisonment; the contractor is declared to be an habitual felon by a tribunal).

However, if the couple has cohabited for a year after the violence or intimidation has ceased, or after the discovery of the partner’s hidden traits and details, the civil union can no longer be appealed against.

Are same-sex marriages celebrated abroad recognized in Italy?

Italian citizens residing in Italy who have entered into same-sex marriages abroad (or in institutions similar to marriage) have their marriage recognized and considered as a civil union, with the same legal effects.

The foreign marriage document can be recorded in the Registry Office, by submitting the original deed (or a certified copy), translated and notarized beforehand: the deed can be submitted either by the Italian Consular Authority of the foreign country where the marriage has been celebrated, by the spouses themselves or a person that acts on their behalf.

Which property relationships are in effect within the civil union?

When the civil union is established, unless otherwise explicitly declared by the contractors, the property regime is the community of property: paragraph 13 of law 76/2016 refers to the Italian Civil Code’s provisions that regulate this matter.

As a result, those who take part in a civil union can set up a patrimonial fund, a family business, and a legal or conventional communion.

How are inheritances regulated in civil unions?

Paragraph 21 of the Cirinnà law extends the regulations on inheritances contained in the Civil Code to civil unions, with respect to intestate succession and indignity (i.e. causes of disinheritance according to Italian laws), thus giving civil unions the same legal protection of marriages.

In the event of death of one of the contractors, if a will has not been written, the surviving partner acquires the status of legal successor, thereby being entitled to a share of the inheritance.

With regard to the habitation rights in the house shared by the couple, paragraph 42 establishes that the surviving member is entitled to live in the house owned by the deceased partner for two years, or for the same time of the cohabitation, if longer than 2 years; in any case the time period can not exceed 5 years.

However, if in the house are living minor or disabled children of the deceased partner, the surviving contractor is entitled to live in the house for period of time no lower than 3 years.

Adoption of the partner’s children (stepchild adoption)

Stepchild adoption had already been regulated in 1983 with law n°184, but for married couples only. This limit had subsequently been extended in 2007 to heterosexual cohabiting non-married couples (defined by the law as “adoption made under special circumstances”).

However, law 76/2016 does not include the possibility of adopting the partner’s biological or adopted child.

Consequently, judges and tribunals throughout Italy had to fill the gap left by the Parliament.

The first verdict in favor of stepchild adoption for homosexual couples was pronounced in 2014 (two years before the entry into force of the Cirinnà law) by the Juvenile Court of Rome, which ruled in favor of a woman who wanted to adopt the daughter of her partner, thus extending the “adoption under special circumstances” to homosexual couples.

Finally, the Court of Cassation (Italy’s Supreme Court) ruled in favor of stepchild adoption for homosexual couples as well (verdict n.12962 of 06/22/2016), ruling that such an adoption is beneficial to children, with respect to their rights and emotional stability.

Despite the Court of Cassation’s ruling, it should be noted that stepchild adoption is not an automatic process, but it is necessary to make an appeal to the Juvenile Court: the Court will therefore make a careful examination on the adopter’s economic, emotional, health and family environment conditions, and if these conditions satisfy the child’s needs, the stepchild adoption can take place.

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