How marriage may affect property ownership in Italy

Marriage Does Not Have the Same Legal Consequences Everywhere

A common misconception among international buyers is that marriage produces substantially the same property consequences in every country.

It does not.

Each legal system has its own rules governing the financial and property relations between spouses. Some countries apply a form of community of property as the default regime; others generally preserve the separate ownership of each spouse. Many jurisdictions also permit spouses to regulate their property relations through matrimonial agreements.

The same purchase may therefore produce different consequences depending on the law governing the couple's matrimonial property regime.

Under one legal system, a property purchased in the name of one spouse may nevertheless belong to both spouses. Under another, it may remain the exclusive property of the spouse named in the deed.

The Italian notary cannot determine the ownership structure merely by looking at the name of the purchaser. The governing law and the matrimonial property regime must first be identified.

Why the Date of the Marriage Matters

For international couples, both the date of the marriage and the date of any later choice of applicable law may be legally decisive.

Regulation (EU) 2016/1103 became applicable in the participating Member States on 29 January 2019, introducing a European framework governing jurisdiction, applicable law, and the recognition and enforcement of decisions concerning matrimonial property regimes.

Under Article 69(3) of Regulation (EU) 2016/1103, the rules in Chapter III on applicable law apply only to spouses who married on or after 29 January 2019 or who designated the law applicable to their matrimonial property regime on or after that date. Situations outside that temporal scope may therefore continue to be governed by the previous conflict-of-law rules, including, in Italy, Article 30 of Law No. 218 of 31 May 1995.

The distinction is important because the applicable law may be identified according to different connecting criteria under the two systems.

The analysis therefore cannot be based on the date of marriage alone. A later valid choice of law may bring the applicable-law rules of the Regulation into operation even for spouses married earlier, and the Notary must reconstruct the relevant chronology before determining the governing law.

Which Law Governs the Matrimonial Property Regime?

In an international property transaction, the law governing the matrimonial property regime is not necessarily Italian law simply because the property is situated in Italy.

The governing law may depend on factors such as:

• the spouses' first common habitual residence after the marriage;
• their common nationality at the time of the marriage;
• the country with which they had the closest connection;
• a valid choice of law made by the spouses;
• the private international law rules applicable according to the relevant date and circumstances.

Under Regulation (EU) 2016/1103, where the spouses have not validly chosen the applicable law, the primary connecting factor is generally their first common habitual residence after the marriage. Failing that, their common nationality at the time of the marriage may become relevant, followed, where necessary, by the State with which they jointly had the closest connection.

The analysis may become particularly complex where the spouses have different nationalities, have lived successively in several countries or are unable to establish clearly where their first common habitual residence was located.

Different Matrimonial Property Regimes Produce Different Results

Although national systems vary considerably, matrimonial property regimes commonly reflect several broad models.

Under a community of property regime, some or all assets acquired during the marriage may belong to both spouses, even where the purchase is formally made by only one of them.

Under a separation of property regime, each spouse generally remains the exclusive owner of the assets acquired individually.

Other legal systems recognise contractual, deferred-community, participation or hybrid regimes whose effects may differ significantly from both Italian community of property and Italian separation of property.

It is therefore unsafe to translate a foreign regime mechanically into an Italian category. The notary must understand the actual legal effects of the foreign law and reflect them correctly in the deed.

Professio Iuris: Choosing the Applicable Law

An important planning tool available to international couples is the professio iuris, meaning the formal choice of the law applicable to their matrimonial property regime.

Regulation (EU) 2016/1103 permits spouses, where its conditions are satisfied, to choose the law of:

• the State where either spouse has habitual residence at the time of the choice; or
• the State of nationality of either spouse at that time.

This choice may provide a decisive degree of legal certainty.

Without a professio iuris, the applicable law may have to be reconstructed through connecting factors such as the spouses' first habitual residence after marriage, their nationalities, previous movements between countries and the legal rules in force at the relevant time. In difficult cases, the answer may be uncertain or require extensive legal research involving more than one jurisdiction.

A valid professio iuris can reduce that uncertainty by identifying expressly the law applicable to the matrimonial property regime.

For international couples whose lives and assets are substantially connected with Italy, the choice of Italian law may be particularly useful. Once Italian law has been validly selected, the spouses may also regulate their property relations by adopting, according to the requirements of Italian law, community of property or separation of property.

The professio iuris may therefore provide certainty both as to the applicable national law and as to the matrimonial property regime chosen within that law.

Its usefulness is not limited to the immediate purchase. It may also simplify future transactions, gifts, succession planning, dealings with banks and the administration of assets if the spouses later move to another country.

A professio iuris may therefore be useful where the applicable law is uncertain, difficult to reconstruct or likely to create future conflict-of-law issues.

Relationship with Property Purchases

Although a professio iuris concerning the matrimonial property regime is entirely separate from the purchase of a particular property, it may greatly simplify future transactions.

Once the applicable law has been clearly established, the notary can determine more easily whether a property acquired in Italy belongs exclusively to one spouse or to both. This reduces uncertainty not only for the immediate purchase, but also for future acquisitions, gifts, succession planning and the general administration of the family's assets.

A clear legal framework established before the purchase often prevents complex conflict-of-law issues from arising years later, when circumstances may have changed considerably.

Formal Requirements of the Choice

A choice of applicable law must comply with the formal requirements established by European and national law.

As a general rule, the choice must be made in writing, dated and signed by both spouses. Regulation (EU) 2016/1103 also requires compliance with any additional formal requirements applicable under Article 23. Where Italian formal requirements for matrimonial agreements apply, the agreement must comply with the form required by Italian law, which generally requires a public deed.

The professio iuris should therefore not be treated as an informal declaration inserted casually into a property transaction. It is an autonomous legal choice whose validity must be carefully ensured.

How the Matrimonial Property Regime Affects an Italian Property Purchase

Once the applicable law has been identified, the notary must determine how that law affects the ownership of the property being purchased.

This assessment is essential because naming one spouse as purchaser in the deed does not, by itself, determine all the ownership effects that the applicable matrimonial property regime may produce between the spouses.

Depending on the governing law, the purchase may result in:

• ownership by one spouse alone;
• joint ownership by both spouses;
• ownership subject to the rules of a foreign matrimonial property regime;
• other legal consequences provided by the applicable national law.

For this reason, the matrimonial property analysis is not an abstract exercise in private international law. It directly affects how the deed must be drafted and which ownership effects the purchase produces under the law governing the matrimonial property regime, as recognised within the Italian transaction.

Why International Couples Should Plan in Advance

Many international couples only discover the complexity of these issues when they are about to sign a property deed.

At that stage, documents may need to be obtained from different countries, foreign legislation may require examination and the applicable law may need to be reconstructed from events that occurred many years earlier.

This process may require additional time and occasionally delay completion.

By considering these matters well before purchasing property, couples can often simplify the transaction considerably.

Where appropriate, they may also decide to regulate their matrimonial property relations in advance, avoiding future uncertainty not only for the purchase itself but also for subsequent gifts, inheritances and family wealth planning.

The Importance of Accurate Documentation

International property transactions often require the notary to examine documents issued in different jurisdictions.

Depending on the circumstances, these may include:

• marriage certificates;
• matrimonial agreements;
• documents evidencing a previous choice of applicable law;
• foreign civil status documents;
• court decisions;
• certificates issued by foreign authorities.

Where documents originate outside Italy, certified translations and, where applicable, an apostille or legalisation may also be required before they can be used in an Italian notarial transaction.

Providing complete documentation at an early stage frequently allows the applicable matrimonial property regime to be identified more efficiently.

International Couples Living in Italy

Many foreign couples permanently relocate to Italy after marrying abroad.

Others marry in Italy but subsequently establish their lives in another country.

These situations frequently involve several legal systems operating simultaneously.

The law governing the matrimonial property regime is therefore not necessarily the law of the country where the marriage was celebrated, nor is it automatically the law of the country where the property is located.

Each situation requires a careful analysis of the relevant connecting factors under the applicable rules of private international law.

For this reason, assumptions based solely on nationality or place of marriage are often incorrect.

Why This Analysis Protects Both Spouses

Determining the correct matrimonial property regime before completion protects both members of the couple.

It ensures that the deed accurately reflects the legal consequences of the purchase, reduces the risk of future disputes concerning ownership and provides greater certainty for subsequent transactions involving the property.

The analysis is equally important where only one spouse intends to purchase the property. Depending on the applicable law, the legal consequences of that purchase may extend beyond the person whose name appears in the deed.

A correct assessment therefore protects not only the immediate transaction but also future dealings with the property.

The Role of the Italian Notary

One of the Italian notary's principal responsibilities in an international transaction is to identify the matrimonial property regime applicable to the spouses before the deed is executed.

This involves examining the relevant rules of private international law, reviewing the documentation provided by the parties and determining how the applicable law affects ownership of the property being acquired.

Where appropriate, the notary may also advise the spouses on the possibility of making a valid professio iuris, allowing them to choose the law governing their matrimonial property regime within the limits established by Regulation (EU) 2016/1103. In suitable cases, this choice can provide a stable legal framework not only for the immediate purchase but also for future property transactions, succession planning and the management of family assets.

Every international couple has its own legal history. The applicable matrimonial property regime can be determined only after considering the date of the marriage, the relevant private international law rules, the spouses' nationalities and habitual residences, any matrimonial agreements and any previous choice of applicable law. This analysis forms an essential part of the preventive legal work carried out by the Italian notary before the purchase is completed.