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Italy

from Japanese Fairy Tales





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.





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Previous: The French Law Of Marriage And Divorce



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