Читать книгу Marriage and Divorce Laws of the World - Hyacinthe Ringrose - Страница 10

Table of Contents

Italy.

Marriage.—Marriage in Italy is governed in practically all its aspects and connections by the regulations contained in the chapter on marriage in the Italian Civil Code (Il Codice Civile del regno d’Italia), which went into effect in 1866. These regulations are for the most part the same as those of the French Code, upon which the Italian Code was directly based, the modifications in the Italian Code being mainly in the direction of greater specificness and greater stringency.

As in France, civil marriage is the only form of marriage recognized by the State.

Impediments.—1. Age. A man may not contract marriage before completing his eighteenth year or a woman before completing her fifteenth. The King may, however, grant a dispensation permitting a man to marry after attaining the age of fourteen and a woman after attaining the age of twelve.

2. Existing previous marriage. As in France.

3. Period of delay. A woman cannot contract a new marriage until ten months after the dissolution or annulment of a former marriage, unless the marriage was annulled on the ground of impotence. But this prohibition ceases from the day the woman has given birth to a child.

4. Consanguinity and affinity. As in France. The King has a right of dispensation similar to that possessed by the President in France.

5. Relationship by adoption. As in France.

6. Mental incapacity. Marriage may not be contracted by one who has been legally adjudged of unsound mind. If an action on this ground is pending against either party to a contemplated marriage the marriage must be suspended until final judgment is given.

7. Homicide. A person who has been legally convicted as a principal or accomplice in a voluntary homicide committed or attempted upon any person may not be married to the latter’s consort. As in the case of the preceding impediment, a contemplated marriage must be suspended if an action on this ground is pending against either party.

8. Consent of parents. The age under which the consent of parents or next of kin is required is 25 for males and 21 for females. An adopted child requires the consent of both its natural and adopted parents. If the consent is refused the Italian Code provides for an appeal to the court.

Foreigners desiring to be married in Italy must present a certificate from the competent authority of their own country that they satisfy the requirements of the laws of that country. Foreigners ordinarily residing in Italy must also satisfy the requirements of the Italian law.

Preliminaries.—The preliminary formalities to marriage are essentially the same in both the French and the Italian Codes.

Legal Opposition.—Legal opposition to the marriage may be made by the parents or, in want of them, by the grandparents of either party, if they are cognizant of the existence of any legal impediment, even if the parties are of age. In default of ascendants, opposition can also be made by a brother, sister, uncle, aunt, or cousin german, as well as by the guardian or curator duly authorized by the family council, on the ground of lack of the required consent or the infirmity of mind of one of the parties to the marriage. Anyone may oppose the remarriage of his former consort.

The public prosecutor is required to oppose the marriage officially when he is cognizant of any impediment, and to facilitate his accomplishment of this duty the registrar is bound to inform him of any impediment that appears to exist.

The effect of a legal opposition is to suspend the celebration of the marriage until the case has been determined in court. If the opposition proves to be without legal ground the one filing it, unless one of the ascendants or the public prosecutor, may be held responsible for any damage occasioned by him.

Celebration.—Marriage must be celebrated publicly in the communal house and before the registrar of the commune where one of the parties has his or her domicile. Two witnesses are required.

Record of Marriage.—The registrar must inscribe a record of the marriage in the civil register giving all the necessary details and must deliver an authenticated abstract of the record to the parties, who without this cannot legally claim to be married or to enjoy any of the legal consequences of marriage.

Illegitimate Children.—Such children are legitimatized by the subsequent marriage of their parents, although in order to acquire the legal rights of legitimate children they must be formally recognized by their parents.

These legal rights are acquired at the time of marriage only if the illegitimate children are legally recognized by their parents in the marriage record or have been legally recognized at some time prior to the marriage; otherwise they date only from the day when such recognition is given subsequent to the marriage. Children of adulterous connections and of persons between whom exists the impediment of relationship by blood or marriage in the direct line, or of relationship by blood in the collateral line up to the second degree, cannot be legitimatized.

Foreign Marriages.—In order that marriage may be valid in Italy an Italian citizen entering into a marriage in a foreign country must be free to marry under the Italian law and must make publication in the commune in Italy of which he is a resident, or if he is no longer a resident of Italy, in the one in which he last resided. The marriage is valid if celebrated according to the form prescribed by the laws of the country in which it takes place. Within three months after his return to Italy he must have the marriage recorded in the civil register of the commune where he permanently resides.

Annulment.—Marriage may be annulled if contracted in contravention of the impediments as to age, existing previous marriage, relationship or homicide. It may also be declared null if it was celebrated before an incompetent official or without the necessary witnesses; in the former case, however, the action cannot be instituted more than a year after the date of celebration. Actions on the foregoing grounds may be brought by the parties themselves, by the nearest ascendants, by the public prosecutor or by any one who has a legitimate or actual interest in the marriage.

The validity of a marriage may also be attacked by the party whose consent thereto was not free or who was under error as to the person married; but actions on these grounds are no longer admissible when cohabitation has lasted for a month after the removal of the constraint or the discovery of the error. Impotence, when anterior to marriage, may be put forward as a ground for annulment by either party. Marriage performed without the required legal consent may be attacked by the person whose consent was necessary or by the party to whom it was necessary; but in the former case it cannot be attacked later than six months after marriage, and in the latter, six months after the party in question has attained his majority. Moreover, in cases where only one of the parties has attained the required age it cannot be attacked when the wife, although not yet of age, has become pregnant. The marriage of one who has been legally adjudged of unsound mind can be attacked either by the party himself, his guardian, the family council, or the public prosecutor, if the judgment had already been passed when the marriage was celebrated, or if the infirmity for which the judgment was pronounced was existent at the time of marriage.

Marriage cannot, however, be attacked on this ground if cohabitation has endured for three months after the party has been legally adjudged to be once more of sound mind.

The public prosecutor is obliged to intervene in all matrimonial causes, even if they were not instituted by him.

Separation.—There is no divorce in Italy, and marriage is only dissolved by the death of one of the parties. Personal separation is, however, permitted on the following grounds:

1. Adultery of the wife, or of the husband if he maintains a concubine in his house or openly in another place or when such circumstances concur that the act constitutes a grave indignity (ingiuria grave) to the wife. The latter provision is intended to apply particularly to cases where the wife has discovered the husband in flagrante delicto.

2. Voluntary abandonment.

3. Violence endangering the life or health, cruelty, threats, or grave mental indignities.

4. Sentence to punishment for crime, except when the conviction was prior to the marriage and the other party was cognizant of it.

5. The wife can ask for a separation when the husband, without any just reason, does not set up an abode, or, having the means, refuses to set one up in a manner suited to his condition.

6. Mutual agreement. Separation on this ground is not valid unless ratified by the court after an attempt at reconciliation has been made.

Limitations To Right of Action.—The right to obtain a separation is extinguished by condonation, express or tacit.

Procedure.—Actions for separations must be brought before the court under whose jurisdiction the defendant is resident or domiciled. Service is ordinarily personal, but if the residence of the defendant is unknown it may be made by a judicial edict giving notice of the action, of which one copy must be posted at the door of the building where the court holds its sessions, while a copy is published in the newspaper designated for the official notices of the court, and another copy is transmitted to the public prosecutor for the district in which the action is brought.

Before the case is tried the parties are obliged to appear in person and without attorneys before the President of the Court which has jurisdiction over the case, who hears each party separately and makes such representations as he considers calculated to effect a reconciliation. If a reconciliation is accomplished the fact is noted on the court records and the case dismissed; otherwise the case is sent back to the court for trial.

The trial is ordinarily in accordance with the rules of summary procedure.

Effects of Decree.—The party for whose fault the separation was pronounced incurs the loss of the marriage remainders; of all the uses which the other party had granted in the marriage contract, and also of the legal usufruct. The other party preserves the right to the remainders and to every other use dependent on the marriage contract, even if stipulated as reciprocal. In case both parties are equally at fault each incurs the losses above indicated, the right of support in case of necessity always being preserved.

Custody of Children.—The tribunal which pronounces the separation also orders which of the parties shall retain the children. For grave reasons it may commit the children to an educational institution or to the charge of a third party. Whatever the disposition of the children, however, both parents retain the right of supervising their education.

Foreign Divorces.—Decrees of divorce granted by foreign courts are not recognized in Italy so far as Italian subjects are concerned.