What is matrimonial property regime?

Matrimonial property regimes are rules governing the ownership and ways of managing the property of the couple during marriage and when they separate or divorce. Matrimonial property regime also states the rights each spouse has on the property acquired by either of the spouses, or both.

The spouses may agree on their matrimonial property regime at the time of marriage. If nothing is agreed, the community property regime will be automatically applicable.

·        The community property regime.

Under this regime, all property and rights acquired by a husband and wife during marriage is jointly owned, unless they are personal goods which are exclusively at the disposition of each of the spouses.

·        Goods covered by the community property regime.

According to Italian law, each spouse automatically owns an undivided one half in all commonly owned property acquired together or separately by each spouse during marriage; all income from personal property earned by each spouse and not spent; all income from each of the spouse’s work and business activities established and managed by both during marriage; company shares and State bonds; companies created during marriage and managed by both spouses.

If the company only belonged to one the spouses before marriage but then jointly managed during marriage, only the profits are covered by the community property regime.

·        Goods not covered by the community property regime,

Even if the spouses agree on community property regime, not all properties are covered by this regime.Each spouse owns the property acquired before marriage. Such properties are automatically excluded from the community property regime.

The following are also excluded from the community property regime:  properties acquired during marriage through donations, inheritance or legacy; assets personally used by each spouse and their accessories; assets the spouse needs to carry out professional activities, excluding those used to manage the company jointly owned by the couple; properties acquired through payment of damages; pension given for partial or total incapacity to work; properties purchased by income from the spouse’s exclusive  personal property.

·        The conventional community property regime,

This has to do with amendment on some rules governing community property, agreed upon by the spouses, so as to cover even the personal property each one of them owned before marriage or to automatically include all the incomes earned individually by each spouse. It can also indicate the properties to be subject to community property regime or not.

In any case the following must be excluded from the conventional community property regime: assets the spouse needs to carry out his/her professional activities; properties acquired through payment of damages; pension given for partial or total incapacity to work.

This type of agreement must be done by a “public act” which is the document drawn up, with the formalities required, by a public notary or any other authorised public official.

·        Modification or dissolution of community property regime,

In the course of marriage, the spouses can decide to amend the property regime they chose at the time of marriage. For this to be valid, it must be undersigned before a public notary.

In case of nullification or dissolution of marriage (divorce), the community property regime can be dissolved by allocating the properties to each of the parties. Separation or application for separation lodged in a court doesn’t lead to the dissolution of community property regime.

·        Separate Property Regime,

Under the Separate Property Regime, each spouse owns and administers the property acquired before marriage and in the course of it. Neither of the spouses has a right to the other’s property. Therefore, the wife and husband continue to own their property separately during marriage but it doesn’t affect the succession right.

In order to be applicable, each of the spouses must expressly agree to Separate Property Regime. Please note that should only one of the spouses ask for change from community property regime to Separate Property Regime, the case has to be taken to court.

In that case, the court issues a sentence effecting Separate Property Regime which can also be sought in case of interdiction or inability of the spouse, bad management of common property or when one of the spouses doesn’t pay the costs to support the family.

If one intends to buy a property to be co-owned by both spouses after asking for Separate Property Regime, it is necessary to clearly declare it on the purchase certificate, and specify the percentage owned by each spouse.