Hi all,

I was hoping you could help me understand what would happen if a
couple of Italian citizens, married in Italy (in a city hall: no
religious marriage) but resident in England, were to divorce.

Which court would have jurisdiction: the English one, as both reside
in England, or the Italian one, as they are both Italian citizens? If
there are assets in both countries, would one court have jurisdiction
on all assets, or only on the assets in its country?

Furthermore, in Italy it is possible to choose "separation of the
assets" when getting married: in other words, if this box is ticked,
Italian law does not assume assets are jointly held by both spouses.
As far as I know no such thing exists in England. Would an English
court recognize "separation of the assets" in the case of an Italian
couple married in Italy or not?

Thanks!

On Fri, 12 Sep 2008 15:45:07 +0100, Mario Rossi put finger to keyboard
and typed:

>Hi all,
>
>I was hoping you could help me understand what would happen if a
>couple of Italian citizens, married in Italy (in a city hall: no
>religious marriage) but resident in England, were to divorce.
>
>Which court would have jurisdiction: the English one, as both reside
>in England, or the Italian one, as they are both Italian citizens? If
>there are assets in both countries, would one court have jurisdiction
>on all assets, or only on the assets in its country?
>
>Furthermore, in Italy it is possible to choose "separation of the
>assets" when getting married: in other words, if this box is ticked,
>Italian law does not assume assets are jointly held by both spouses.
>As far as I know no such thing exists in England. Would an English
>court recognize "separation of the assets" in the case of an Italian
>couple married in Italy or not?

Divorce proceedings which take place in England will do so according
to English law and will not take account of any pre-marital agreement
which is not legally binding in England. It would, therefore, not
recognise an Italian "separation of the assets" agreement. The court
will rule on the disposal of all assets, including those outside the
UK, although this may not be easy to enforce if one or both parties
are non-cooperative.

As the couple are both still Italian citizens, they could opt to have
the divorce handled by the Italian courts. In this case, the divorce
would be according to Italian law (including recognising the
separation of the assets clause) and would also dispose of assets held
in England.

If the divorce is a contested one, it is quite likely that different
options would be preferable to different parties in the divorce (for
example, a wife who stands to gain 50% of her husband's assets may
prefer the English courts, a husband who wants to restrict his wife to
the property listed as hers in the separation of assets clause may
prefer to take the case to Italy). As a general principle, the first
court to receive the case will handle it[1]; if papers are
subsequently filed in the other country then that court will defer to
its counterpart which has already begun proceedings. So if you are
talking about a real case here, rather than asking a hypothetical
question, then both parties need to get real, paid-for professional
advice as a matter of urgency.

[1] This is part of the Brussels II agreement, which, in short, says
that where two or more countries have jurisdiction over a matter
related to family law (eg, divorce, adoption, custody, etc), then the
party bringing the action has the choice of which country's courts to
use. Not all EU countries are signatories to BII, but both the UK and
Italy are so it does apply to the scenario described here.

Mark
-- 
My rather pointless blog: http://mark.goodge.co.uk
My less pointless stuff: http://www.good-stuff.co.uk

On 12 Sep, 20:35, Mark Goodge 
wrote:

> Divorce proceedings which take place in England will do so according
> to English law and will not take account of any pre-marital agreement
> which is not legally binding in England.
> It would, therefore, not
> recognise an Italian "separation of the assets" agreement.

I see. However, the "separation of the assets" (separazione dei beni)
is by no means a pre-nuptial agreement: afaik Italy is even stricter
than the UK in not recognizing pre-nups. It simply means that ticking
this box allows the husband to own assets not shared with the wife and
viceversa. For example, it is very useful if the husband is an
entrepreneur, as this clause prevents the husband's creditors to have
any claims on her assets (or viceversa).
Would this still not be recognized in England?

>The court
> will rule on the disposal of all assets, including those outside the
> UK, although this may not be easy to enforce if one or both parties
> are non-cooperative.
>
> As the couple are both still Italian citizens, they could opt to have
> the divorce handled by the Italian courts. In this case, the divorce
> would be according to Italian law (including recognising the
> separation of the assets clause) and would also dispose of assets held
> in England.
>
> If the divorce is a contested one, it is quite likely that different
> options would be preferable to different parties in the divorce (for
> example, a wife who stands to gain 50% of her husband's assets may
> prefer the English courts, a husband who wants to restrict his wife to
> the property listed as hers in the separation of assets clause may
> prefer to take the case to Italy). As a general principle, the first
> court to receive the case will handle it[1]; if papers are
> subsequently filed in the other country then that court will defer to
> its counterpart which has already begun proceedings. So if you are
> talking about a real case here, rather than asking a hypothetical
> question, then both parties need to get real, paid-for professional
> advice as a matter of urgency.

I see. It is a hypothetical question which I hope will never become a
real one :) but at the same time it's good to be realistic and just
understand what the law is like.
In terms of costs and timing, is there any such average for divorces
in England? One of the huge problems in Italy is that the whole
judicial system is worthy of a 5th world country, and trials take
ages, be it a divorce or a homicide. I appreciate it's one of those
how-long-is-a-piece-of-string questions, but any indication would be
useful :)

> [1] This is part of the Brussels II agreement, which, in short, says
> that where two or more countries have jurisdiction over a matter
> related to family law (eg, divorce, adoption, custody, etc), then the
> party bringing the action has the choice of which country's courts to
> use. Not all EU countries are signatories to BII, but both the UK and
> Italy are so it does apply to the scenario described here.

Thanks!

On Sat, 13 Sep 2008 00:35:09 +0100, Mario Rossi
 wrote:

>In terms of costs and timing, is there any such average for divorces
>in England? One of the huge problems in Italy is that the whole
>judicial system is worthy of a 5th world country, and trials take
>ages, be it a divorce or a homicide. I appreciate it's one of those
>how-long-is-a-piece-of-string questions, but any indication would be
>useful :)
>
Divorce in England is now, except in the very small minority of
contested cases, a purely administrative matter. Although the agency
which deals with it is part of the court system, there is no "trial".

The qualification to bring proceedings is that you are actually
present in England or Wales when they are started - nothing more is
required. That being so, you can use any County Court anywhere in the
country, provided that it handles divorce, which almost all of them
do. There is a list of divorce county courts on the Court Service
website; the best thing is to ring several and get estimates of the
length of time it will take - it shouldn't be more than a couple of
months. You can download the forms etc from the same site - start at
http://www.hmcourts-service.gov.uk/infoabout/divorce/index.htm

All this assumes that you and your wife are in agreement about exactly
what you want. It makes sense to accept something less than you would
ideally like rather than embark on contested litigation, which is
likely to be both slow and expensive, and of which the result is
always unpredictable.

-- 
Don Aitken
Mail to the From: address is not read.
To email me, substitute "clara.co.uk" for "freeuk.com"

On Sep 12, 3:45 pm, Mario Rossi  wrote:
> Hi all,
>
> I was hoping you could help me understand what would happen if a
> couple of Italian citizens, married in Italy (in a city hall: no
> religious marriage) but resident in England, were to divorce.
>
> Which court would have jurisdiction: the English one, as both reside
> in England, or the Italian one, as they are both Italian citizens? If
> there are assets in both countries, would one court have jurisdiction
> on all assets, or only on the assets in its country?
>
> Furthermore, in Italy it is possible to choose "separation of the
> assets" when getting married: in other words, if this box is ticked,
> Italian law does not assume assets are jointly held by both spouses.
> As far as I know no such thing exists in England. Would an English
> court recognize "separation of the assets" in the case of an Italian
> couple married in Italy or not?
>

The court can give one spouse's assets to the other, if it feels it is
reasonable to do so to achieve a fair outcome, for some value of
"fair".

On 13 Sep, 00:35, Mario Rossi  wrote:

>
> I see. However, the "separation of the assets" (separazione dei beni)
> is by no means a pre-nuptial agreement: afaik Italy is even stricter
> than the UK in not recognizing pre-nups. It simply means that ticking
> this box allows the husband to own assets not shared with the wife and
> viceversa. For example, it is very useful if the husband is an
> entrepreneur, as this clause prevents the husband's creditors to have
> any claims on her assets (or viceversa).
> Would this still not be recognized in England?

Yes and no.

English law does not have a concept of "community property". By
default the property of a husband and wife do not merge and they each
own their own property, although they may chose to hold some of it
jointly or in common if that is how they organise themselves.

In that sense all marriages in England are as if there was a
separazione dei beni.

But (and this is a big but) a divorce empowers the English family
courts to redistribute the property of the husband and wife according
to a number of criteria, or make various orders (such as for one party
to make periodical payments to the other). How they decide to do this
is governed by a lot of law which is too detailed to go into here and
depends a lot on the circumstances.

Does that help?

Francis

On Sep 13, 12:35 am, Mario Rossi  wrote:
> On 12 Sep, 20:35, Mark Goodge 
> wrote:
>
> > Divorce proceedings which take place in England will do so according
> > to English law and will not take account of any pre-marital agreement
> > which is not legally binding in England.
> > It would, therefore, not
> > recognise an Italian "separation of the assets" agreement.
>
> I see. However, the "separation of the assets" (separazione dei beni)
> is by no means a pre-nuptial agreement: afaik Italy is even stricter
> than the UK in not recognizing pre-nups. It simply means that ticking
> this box allows the husband to own assets not shared with the wife and
> viceversa. For example, it is very useful if the husband is an
> entrepreneur, as this clause prevents the husband's creditors to have
> any claims on her assets (or viceversa).
> Would this still not be recognized in England?

As Francis says, the usual case is that the husband's creditors cannot
come after the wife's assets. (Except if the husband has given away
assets to his wife in order to avoid his creditors, they can get the
court to order that the assets are "really" his.)

Fools (me) rush in where lawyers/angels (Francis) fear to tread:
IANAL.  The basic rule is that the divorce court will divide the
assets of a marriage in a way the court feels is equitable.  The
longer the marriage, the more likely this is to be 50/50.  A pre-
nuptial agreement may affect the court's view of what is "fair".  It
is more likely to do so if both parties took indepedant legal advice
before signing the agreement.  It is more likely to do so if the
agreement is "reasonable" (eg, if the court was going to split 50/50,
they might follow a pre-nup that said 40/60, but ignore one that said
0/100).

In general terms, I think that if a couple married and lived in
foriegn country for 20 years, then came to England and divorced after
six months, one could certainly argue that the courts should pay some
attention to how assets would have been divided in the foriegn
country.  (Again, that is more likely to work if the foriegn country's
division is not too far from the UK's approach.)

s_pickle2001@yahoo.com posted
>On Sep 12, 3:45 pm, Mario Rossi  wrote:
>>
>> Furthermore, in Italy it is possible to choose "separation of the
>> assets" when getting married: in other words, if this box is ticked,
>> Italian law does not assume assets are jointly held by both spouses.
>> As far as I know no such thing exists in England. Would an English
>> court recognize "separation of the assets" in the case of an Italian
>> couple married in Italy or not?
>
>The court can give one spouse's assets to the other, if it feels it is
>reasonable to do so to achieve a fair outcome, for some value of
>"fair".

What is quite certain is that England is regarded as the jurisdiction of 
choice for wives who are "forum-shopping" to get the best divorce 
payoff. Its courts are far more generous with husbands' money than just 
about any other country.

-- 
Les

On 15 Sep, 14:55, Martin Bonner  wrote:

> Fools (me) rush in where lawyers/angels (Francis) fear to tread:
> IANAL.  The basic rule is that the divorce court will divide the
> assets of a marriage in a way the court feels is equitable.  The
> longer the marriage, the more likely this is to be 50/50.  

I see. You have all been very helpful, cheers. Of course, I hope I'll
never need these pieces of advice :) but it was most useful to shed
some light on the matter