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Law(NNN) NNN-NNNN under Article 32, sets specific rules for Italian jurisdiction on divorces.
This disposition provides that divorced fall under Italian jurisdiction when one of the two spouses is an Italian citizen or the wedding has been celebrated in Italy.
Nonetheless, this rule can be derogated according to two different Regulations of the European Union.
First of all, Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility provides at Article 3 that matters relating to divorce and legal separation shall lie with the courts of the Member State
(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of the Member State in question;
As a consequence, it is sufficient to the applicant to reside in another Member State for at least one year before the application is made or six month (if one of the two spouses of your case has a double nationality of another Member State).
Accordingly, Regulation N. 1259/2010 (entered into force in 22nd november 2012) allows international couples to agree in advance which law would apply to their divorce or legal separation as long as the agreed law is the law of the Member State with which they have a closer connection. For "closer connection" should be intended, under Article 5:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or
(b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or
(c) the law of the State of nationality of either spouse at the time the agreement is concluded; or
(d) the law of the forum - which in your case would be Italy.
According to this provision, whenever one of the four listed conditions occurs, even an Italian Judge could apply the law of the foreign State where one or both the spouses have been "habitually resident". "Habitual residence" is normally intended as a one year residence in the considered Member State. In this case, the Decision is immediately operative in Italy and you do not need to transcribe it in the register of the so called "Stato civile".
The case is different if you decide to proceed the divorce directly abroad.
For this situation, Article 65 of l.(NNN) NNN-NNNNprovides for the direct effect in Italy of the foreigner decisions which state upon separation and divorce without any further need to be recognized by the Italian judiciary. Nonetheless, you would still need to transcribe the decision in the civil register (it is called "procedura di annotazione del divorzio nei registri dello stato civile"). It is better to do it as soon as possible and you need to present the following documents:
- the transcript of the decision of divorce;
- an official translation of the same.
The transcription has not a constitutive effect but a merely certifing effect (Quote Opinion of Consiglio di Stato n. 621 1/02/2008).
After this, your partner will be again free from "marital obligations" and she will be able to marry you.
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