1 Which law applies?

1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

Unless the spouses agree otherwise, their matrimonial property is subject to the law applicable to their personal relations, i.e.:

  • their common national law, if the spouses have the same citizenship;
  • the law of the state in which matrimonial life is prevailingly located, if they have different citizenships or several common citizenships (Art. 29 and 30 Law No. 218 of 31/05/1995).

Italy has not ratified any international conventions on this matter.

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

Yes, the spouses can choose the applicable law. They may agree that their property should be governed by the law of a state of which at least one of them is a citizen or by the law of a state in which at least one of them resides. The requirements for the formal and content validity of the choice-of-law agreement are governed by the law chosen or by the law of the place where the agreement is concluded (Art. 30 Law No. 218 of 31/05/1995).

The written form is a minimal formal requirement. The agreement may be concluded or altered at any time; there is no retroactive effect and the agreement may be contained within the record of celebration of the marriage.