The Italian codice civile provides that the default matrimonial regime is the communione legale but it also authorizes an optional system of separazione dei beni. General community of property is not included as a statutory optional system. The separazione dei beni can be modified in specified ways such as by electing a fondo patrimoniale(capital fund). However, there may be no derogation from the “primary regime” and there are statutory rules that no variation may be made in the power to manage and administer the assets and from the rule that the division and partition of the community must be made in equal portions.
The difficulty caused by denying validity to such contracts is mitigated by the availability of the separazione dei beni agreement, which may be implemented prior to the marriage. This may cover only the assets acquired by either party during the marriage.
Prenuptial agreements entered into pursuant to foreign law which are valid under that law may be enforceable in Italy unless void on public policy grounds.
Prenuptial agreements in Italy must be executed before a notary, except that if the spouses elect the regime of total exclusion of community of property, the spouses can make a declaration at the time of their marriage before the person who solemnizes their marriage, which must then be annotated on the marriage certificate.
Reference to foreign law is permitted only if specified rules are complied with including a requirement that the contents of the foreign law be expressly set out in the contract.
Our office has worked on several U.S. – Italy prenuptial agreements, always collaborating with local counsel in all jurisdictions as appropriate.
Disclaimer: We are admitted to practice only in New York but work as appropriate with lawyers throughout all U.S. states and throughout the world.