Marital property: England v Italy by Lidia Fili Aicardi

Divorce|March 30th 2018

Lidia Fili Aicardi is a trainee solicitor at Stowe Family Law. She has an Italian background and in this special feature she compares the legal concept of ‘marital property’ (assets acquired or owned by a married couple) in Italian and English law.

 

The concept of marital property is an elusive one, and the definition differs from jurisdiction to jurisdiction.

Matrimonial property in Italy: an overview

Italy’s family law framework is regulated by the Civil Code, which is rooted in the Napoleonic code of civil law used in France.

Under this statutory regime, married people can choose how to own family assets. They can do this when they marry, or at any time afterwards.

The default statutory regime is the “community of property” regime. This differentiates between ‘community property’, personal property and ‘deferred community property’.

Community property encompasses assets acquired by either party during the marriage. Spouses own and administer this property together and it is available for division upon separation or divorce.

Personal property, on the other hand.  is owned and administered solely by its proprietor. Examples of this are property acquired prior to the marriage; during the marriage by way of inheritance or gift; assets needed by a spouse to carry out his or her profession (this must be specified when it is acquired, with the participation of the other spouse); and property received as compensation for damages.

Finally, deferred community property is defined as “the fruits of a party’s personal property and the fruits of their individual activity”. This type of property does give rise to co-ownership of goods or rights, but only the credit equivalent of half the value of the property, to be paid by the owner to the other spouse.

Although statutory community of property is the default, spouses may choose to hold property in other ways.

Spouses may choose to alter one or more provisions of the statutory community of property regime. This “tailor made” regime is known as ‘conventional community of property’. Alternatively, spouses may elect for what is known as the ‘separation of property’ regime. Under this, each spouse maintains exclusive ownership and the right to use and administer assets acquired in his or her sole name, whether before or during the marriage without exception. Spouses also remain exclusively responsible for any debts or liabilities in their sole name, regardless of whether these predate the marriage or not.

Matrimonial property in England and Wales: an overview

In England and Wales, the framework that regulates matrimonial property is far less rigidly prescribed. The starting point is the Matrimonial Causes Act 1973, which lists the financial orders a court may make on divorce and the factors it needs to consider when deciding ‘who gets what’.

Developments in case law have given rise to a common law distinction between matrimonial property (property acquired during the marriage for the use and benefit of the family) and ‘non-matrimonial property’ (property acquired before the marriage or after the date of separation for the sole benefit and use of the owner). Whether one particular asset is matrimonial or not will depend on the circumstances of the specific case and on any efforts the owner has made to keep it separate from the other family assets. But its provenance alone will not be enough for an asset to be labelled non-matrimonial, especially in a long marriage. Finally, the distinction loses significance if the property is required to meet the needs of the divorcing spouses or of any children of the family.

A similar approach is applied to monies received as compensation for damages, which England treats differently to Italy. In Englad, if these damages have been treated as a family asset for the use and benefit of the whole family and one of the spouses has a need for it, they may be available for division, despite them having been awarded to one spouse alone.

In this land of uncertainly, many couples choose to sign a prenuptial (signed before the marriage takes place) or postnuptial (signed after the marriage) agreement, in an effort to exclude certain assets, such as inheritance or pre-acquired wealth, from the ‘pot’ available for division in the event of divorce. If properly drafted and executed by an experienced legal team, these agreements can be very effective in affording protection and certainty to those who wish to protect personal wealth.

 

Lidia Fili Aicardi is a Trainee Solicitor in Stowe Family Law’s London office. She joined the firm in December 2016. Lidia was educated at Marymount International School in Rome where she obtained a bilingual International Baccalaureate (English and Italian). She then studied Law at UCL, and completed her Legal Practice Course at the University of Law.

Lidia advises and assists clients going through a divorce or the dissolution of a civil partnership. She has assisted on cases involving substantial income and capital, both in this country and abroad, as well as complex financial, business, and trust structures. She also has experience of pre- and postnuptial agreements and disputes concerning children. The latter can be exacerbated by allegations of domestic violence or by one party’s desire to relocate abroad permanently with the child.

 

Author: Lidia Aicardi

Lidia advises and assists clients going through a divorce or the dissolution of a civil partnership. She has assisted on cases involving substantial income and capital, both in this country and abroad, as well as complex financial, business, and trust structures. She also has experience of pre- and postnuptial agreements and disputes concerning children.

Comment(1)

  1. spinner says:

    Both systems could work just as well if it was not in England then circumvented by “meet the needs”. What are these needs as they seem to include tens of millions of pounds in some extreme cases but in lesser cases it’s just whatever they judge decides which means you may as well not bother with the matrimonial and non-matrimonial property as it doesn’t mean anything.

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