4 Can or must the matrimonial property regime be registered?
The statutory regime, in contrast to the conventional regimes, is made public in a so-called 'negative' way, in the sense that it is presumed and considered enforceable against third parties due to the fact that there is no contrary annotation in the margin of the record of celebration of the marriage. The conventional regimes are made public via an annotation in the margin of the record of celebration of the marriage filed in the paper or electronic archives kept by the civil registry office (Art. 69 of Presidential Decree No. 396 of 03/11/2000).
4.1. Do one or more matrimonial property registers exist in your country? Where?
Besides the registration with the civil registry office, which determines the enforceability against third parties, in certain cases, public registration in the land register is required (Art. 2647 CC), but according to the prevailing doctrinal opinion this might take the form of a simple public notice with no relevance to its enforceability against third parties.
4.2. Which documents are registered? Which information is registered?
Amongst other things, the following are to be noted in the margin of the record of celebration of the marriage filed at the civil registry office (Art. 162 CC, Art. 69 Presidential Decree 396/2000): the date of the agreement, the notary who drew up the authentic instrument, the particulars of the contracting parties, or the choice of the regime of separation, the choice of law, the judgement on the dissolution of the marriage or the judicial separation of property. The request for annotation of the agreement shall be made by the notary who drew up the authentic instrument.
4.3. How and by whom can the information in the register be accessed?
Anyone is entitled to consult the civil registry office.
4.4. What are the legal effects of registration (validity, opposability)?
The effect of the public registration is to make the matrimonial property regime enforceable against third parties.
4.5. Can a matrimonial contract concluded in a foreign state according to foreign law be registered in your country? If yes, under which conditions or formalities?
[This information is valuable in respect of third parties, see art. 28 of the European Regulation (EU) 2016/1103 of 24 June 2016. When a matrimonial contract is registered in your country it can be invoked against third parties. An interconnection of matrimonial property registers in Europe is not existing and therefor the registration of the matrimonial contract must be undertaken in all countries separately, where the spouses have property or conclude contracts. Only then the spouses can invoke their matrimonial contract against third parties in that country.]
The public registration system (regime pubblicitario) of the matrimonial agreements in Italy is regulated by article. 162 of the civil code and by the DPR 3 November 2000, n. 396 and allows the actuation of the provisions concerning their oppositions to third parties, as foreseen by art 28 of the EU Regulations 2016/1103 and 1104.
The Italian “regime pubblicitario” allows the annotation of the agreements in the “registri dello stato civile”(Registers of the civil status) on the side of the matrimonial act. The matrimonial agreements have, first of all, to comply with the form foreseen by the law of the Country on the basis of which they are written and, to comply with any other formalities needed in order to be enforceable in Italy (for instance, application of the Apostille according to the country of origin). Then, the matrimony should obviously be annotated in the “registro dello stato civile” of Italy. In order to comply with the requirements of registration, art. 22 of the above mentioned DPR disposes that, given what established by the international conventions, the documents written in a foreign language have to be accompanied by an Italian translation that should be “certificata conforme”(officially conformed) to the foreign text by the diplomatic or consular authority or by an official translator or by an interpreter swearing, before the “ufficiale dello stato civile”, the conformity to the foreign text. Finally, it should be noticed that the compliance with the Italian registration of matrimonial agreements regulated by a foreign applicable law it is only possible if the Italian Law foresees some contents at least similar to the object of these foreign agreements, on the basis of the principle of the “adaptation principle”(istituto dell’adattamento) according to art. 29 of the above-mentioned EU Regulations. This because reasoning a contrario, it should not be possible to comply with the registration requirement in France of an agreement concerning a “fondo patrimoniale” of an asset located in France, regulated by the Italian law, since the French law does not recognize the possibility of adopting a matrimonial agreement having a similar content to the “fondo patrimoniale”.
