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in Italy 

Above all, Italian law expressly allows the spouses to choose the separate ownership of assets regime during marriage. If the agreement on the separate ownership of assets is concluded then the sharing of purchases indicated in sub paragraph 2 above will not take place. An agreement on the separation of assets may be made by a notarial deed either before or after marriage.The law also allows that the intention  to choose the separation of assets regime is expressed during the ceremony to the celebrant who notes the choice of separation of assets in the marriage certificate.

Italian law does not, however, expressly allow other agreements to be entered into, in particular regarding the consequences of a possible future separation or divorce. Current Italian case law therefore states that such agreements are null and void, even if on some occasions it has shown signs of being open to the latter.

Carlo Rimini wrote an article for Corriere della Sera on 21 May 2021 about this issue. Tis is the English translation

Did Bill and Melinda Gates sign a prenup to settle their divorce? It is possible, indeed probable. Premarital agreements are becoming more and more frequent, not only in the United States, but also in England and now also in many European countries. And in Italy? No, not in Italy; some things we don’t do. A few days ago, just as the gossip about the prenuptial agreement of the Gates spouses was on everyone’s lips, the Italian Supreme Court (ordinance no.11012 of 2021) reiterated its rigorous jurisprudence: the agreements in view of divorce are radically null and void. they can not do even at the time of separation to determine the content of the divorce that will be pronounced six months later. It is a surprising decision because in 2012 and 2014 the Court had instead shown its willingness to pave the way for the validity of the agreements in view of divorce, highlighting how they are widespread abroad where they perform a “profitable function of deflation of disputes family members and divorce them ». A difficult way to say one simple thing: if you agree first, you avoid arguing later. The Supreme Court had then recognized that its restrictive orientation is criticized for not being adequate to the evolution of society and of the law itself, now oriented “to recognize ever wider spaces of autonomy for spouses in determining their economic relationships, even after the crisis conjugal “. Almost ten years later, however, the Supreme Court is still standing … as the world changes. Many say that a law is needed to govern prenuptial agreements and many projects have been presented in Parliament. As often happens in these matters, none of the bills have made significant progress in the parliamentary process …

In fact, if you look at our family law as a whole, you have a feeling of unbearable backwardness. A few days ago, a friend of mine, a well-known lawyer in New York, asked me for an opinion. A wealthy Argentine client, a great wine producer, residing in New York, is about to marry the chef of an exclusive Manhattan restaurant. They will come to live in Italy because the wine producer has Italian origins and because Italy is the most beautiful place in the world. The American lawyer is preparing the details of a prenuptial agreement that will take into account the fact that the cook will leave his job to follow her husband to Italy. They plan to have children: they will resort to the technique of surrogacy. In the pact they are about to sign, they are also dealing with inheritance rights because the wine producer does not want her husband to inherit his shares in the Argentine company that has belonged to his family for generations. My lawyer friend asked me if the pact he was preparing would be effective in Italy. I had to disappoint him across the board: homosexual marriage does not exist in Italy; the homosexual civil union has finally been recognized, but it has different effects from marriage (for example, the homosexual couple does not have the mutual obligation of fidelity); the agreements in view of the divorce are null; surrogacy is a crime; the successor agreements are also null and void. My lawyer friend, worried about my answer, asked me how we Italian lawyers lived if we can’t do anything. I told him we do court cases. He replied that according to him it is a rather boring and often useless activity; much better to prevent causes than to do them. I can’t blame him. In Italy it was late in the evening: he concluded the phone call with an ironic “Good night and good luck”.

There is another aspect that deserves reflection thinking about the rumors surrounding the divorce of the Gates spouses. Whenever a rich and famous person divorces abroad, we learn that spouses tend to divide their wealth in half. In order to derogate from this rule, a prenuptial agreement is needed which is negotiated with great care, on the basis of full information by the future spouses of their respective rights and on the basis of a conscious choice that allows them to identify the solution best suited to the characteristics of the concrete case. However, even the prenuptial agreement must respect the principle that marriage is the sharing of resources and assets. Marriage must in fact be a container of reciprocal protections and guarantees. The cook of the New York restaurant would not quit his job if the rich Argentine companion did not agree to marry him and share his fortune with him, albeit in the terms defined in the prenuptial agreement. In Italy, however, marriage is no longer a form of sharing one’s fortunes and reciprocal guarantees.

This is one of the reasons why young people decide not to marry. They can’t find the answer to a question: what changes if we get married? Even the Italian law provides for the communion of assets as a legal property regime of the family, but now almost everyone chooses the separation of assets. Why? Because our law was badly written and it works terribly. There is a widespread idea that with the separation of assets, things are simpler. In addition, choosing the separation of assets is very simple, just a cross on a form during the ceremony. At the moment of marriage, one does not think about it and makes the cross. Then many, wives more than husbands, regret bitterly having put that cross on the form. The Supreme Court continues to deny the effectiveness of prenuptial agreements, but a stroke of the pen is enough to make, without any awareness, inapplicable to one’s marriage the rules on the communion of assets that serve to protect the spouse who decides to dedicate a good part to the family of their own resources and energies. We are such a strange country.

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