3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
The community of property regime can be modified by way of agreement between the spouses (Art. 210 CC). The choice of the separation of property regime may be declared also in the record of celebration of the marriage (Art. 162 CC).
The law provides for two types of conventional property regimes: separation of property and conventional community of property.
The separation of property regime is entirely different from the statutory regime: Each spouse maintains exclusive ownership and the right to use and administer property acquired before and after the marriage without exception, and shall meet his/her own debts with his/her own property (Art. 215 and 217 CC).
If the spouses have acquired property jointly, it is subject to the ordinary provisions on joint property.
The conventional community of property regime, much less common, is a modified statutory community of property regime. Its content may be freely determined by the spouses, who are nevertheless not allowed to:
- make generic reference to laws or customs to which they are not subject, but must state specifically the contents of the agreement which shall govern their relationship;
- include in the conventional community of property regime the personal property indicated in letters c), d) and e) in 2.1.;
- depart from the regulations on the administration of common property and the equality of the shares with respect to the property which would be subject to the statutory community of property (Art. 210 CC).
Although not constituting a conventional regime and referring only to certain specified property, the legislator also provides for the Patrimonial Fund. With this fund, which may coexist alongside a community or a separation regime, one of the spouses, both of them, or a third party, may set aside specific publicly registered movables or immovables, or negotiable instruments in order to meet the needs of the family. Such property is subject to a particular regulation relative to its administration and not subject to execution of debts which the creditor knows have been contracted for purposes other than meeting the family's needs (Art. 167 et seq.).
3.2. What are the formal requirements and who should I contact?
The agreement must be concluded in the presence of two witnesses in the form of an authentic instrument, or it shall be declared null and void.
The choice of the separation of property regime may be declared also in the record of celebration of the marriage (Art. 162 CC).
3.3. When may the contract be concluded and when does it come into effect?
The agreement may be concluded at any time, before or after the marriage. If concluded beforehand, it comes into force at the celebration of the marriage. If concluded afterwards, it comes into force immediately.
In any case, it may only be enforced against third parties if there is an annotation in the margin of the record of celebration of the marriage which is filed in the archives of the civil registry office (Art. 162 CC).
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The agreement may be modified at any time in the form of an authentic instrument (Art. 163 CC). Law No. 142 of 10/05/1981 removed the need for approval by the court to modify the agreement. Approval is still required only for modifications to agreements concluded by authentic instrument prior to 07/05/1981.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
According to the Italian law, before the entry in to force of the EU Regulations 2016/1103 and 1104, it was not possible to apply a retroactive effect to the matrimonial agreements. Art. 22, paragraphs 2 and 3 of the before mentioned Regulations, recognize now to the spouses the possibility of expressly establishing in the agreement a change of the applicable law to their patrimonial effects. This option is only possible if any retroactive change of the applicable law does not compromise the rights of third parties deriving from such a law.
