2 Is there a statutory matrimonial property regime and if so, what does it provide?
2.1. Please describe the general principles: Which goods are part of community property? Which goods are part of the separate estates of the spouses?
The statutory matrimonial property regime is the community of property (Art. 159 of the Italian Civil Code (CC)).
The statutory community of property provides for the existence of community property, personal property and deferred community property.
Property acquired by the spouses after their marriage, whether individually or together, forms part of the community property, with the exception of personal property and property which falls into the deferred community of property (Art. 177 CC).
The following are part of personal property:
- a. property acquired prior to the marriage or the adoption of the community of property regime;
- b. property acquired after the marriage whether as a gift or inheritance, unless it was specified in the authentic instrument of gift or the will that it is attributed to the community property;
- c. property for the strictly personal use of a spouse and its accessories;
- d. property needed by a spouse for carrying out his/her profession;
- e. property received as compensation for damages, as well as any pension related to a partial or total loss of the ability to work;
- f. property acquired with the price of the transfer or exchange of the property listed above, provided that this is explicitly stated at the time of acquisition.
For any property indicated in c), d), f) above, where the property is immovable or movable and registered in the specific property register and was acquired after the marriage, in order for it to be excluded from the community property, the exclusion must be declared in the act of acquisition and with the participation of the other spouse (Art. 179 CC).
The following shall be considered deferred community property:
- the fruits of a spouse's personal property and the proceeds from his/her individual activities, provided they still exist at the time of dissolution of the community (Art. 177 lit. b) and c) CC);
- property intended for the operation of an enterprise of one of the spouses if the enterprise was set up after the marriage and also the increments of an enterprise set up before the marriage, provided they are still in existence at the time of dissolution of the community (Art. 178 CC).
Deferred community applies only at the moment when the community of property is dissolved and, depending on the prevailing doctrinal interpretation, does not indicate actual co-ownership of goods or rights, but only a right to credit of one spouse to be paid by the other (the owner), equal to half the value of the property. Should no agreement be reached about this value, it will be determined by the judge.
In terms of inheritance, this represents a debt of the deceased spouse to be paid to the surviving spouse.
2.2. Are there legal assumptions concerning the attribution of property?
Failing any evidence to the contrary, movables shall be deemed part of the community property (Art. 195 CC).
2.3. Should the spouses establish an inventory of assets? If so, when and how?
The spouses are not required to establish an inventory.
2.4. Who is in charge of the administration of the property? Who is entitled to dispose of the property? May one spouse dispose of/administer the property alone or is the consent of the other spouse necessary (e.g. in cases of disposal of the spouses’ home)? What effect does the missing consent have on the validity of a legal transaction and on opposability towards a third party?
The community property may be administered individually by the spouses.
Nevertheless, the performance of acts of extraordinary administration and the stipulation of contracts by which personal rights of enjoyment are granted or acquired belong jointly to both spouses. Also the power of representation in judicial proceedings for the related actions belongs jointly to both spouses (Art. 180 CC).
In the case of publicly registered movables or immovables, an act of disposal (sale, etc.) lacking the necessary consent from either party, where required, can be annulled and the action can be brought by the spouse whose consent was necessary within one year from the date on which he/she had knowledge of the act and in any case within one year from the date of transcription; in any other case, the spouse acting without the consent of the other spouse has, upon request of the latter, to re-establish the community property in the state in which it had been before the act was performed or, if this is impossible, to pay an equivalent amount (Art. 184 CC).
A spouse may not dispose of his/her own share of the community property until the community of property regime is legally dissolved.
In case a spouse refuses to give his/her consent or he/she is absent or otherwise impeded, the other spouse may receive the judge's authorisation to carry out necessary acts (Art. 181 and 182 CC). Moreover, the judge may exclude one of the spouses from the administration if he/she has proven to be a poor administrator (Art. 183 CC). In cases of absolute or relative disability or poor administration by one of the spouses, the judge may declare a judicial separation of property, which constitutes one of the reasons for dissolving the community of property regime (Art. 193 CC).
As for personal property and deferred community property, the owner will be able to conduct all acts of administration and disposal alone (Art. 185 CC).
There are no special legal provisions concerning the marital home, or any specific safeguard for the spouse who is not the owner.
2.5. Are any legal transactions made by one spouse also binding on the other?
Acts of ordinary administration of the common property may be performed by each spouse separately (Art. 180 CC). The community property is answerable for obligations contracted in the interest of the family, even if a spouse has incurred them separately (Art. 186 CC).
2.6. Who is liable for debts incurred during the marriage? Which property may be used by creditors to satisfy their claims?
When creditors cannot obtain full satisfaction from the personal property, the community property, up to the value corresponding to the share of the spouse in debt, is liable for any debts contracted after the marriage by one of the spouses in carrying out any acts exceeding the ordinary administration without the consent of the other party (Art. 189 CC).
Personal creditors of one of the spouses, even if the debt arose prior to the marriage, may obtain satisfaction subsidiarily from the community property, up to the value corresponding to the share of the spouse in debt. In cases of unsecured debts, creditors of the community property take precedence over personal creditors of a spouse (Art. 189 CC).
Creditors of debts related to the community of property may subsidiarily lay claim to the personal property of each of the spouses, to the extent of one half of the claim, when the community property proves insufficient (Art. 190 CC).
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