In reply to A newbie all over again! by Annec
In reply to A newbie all over again! by Annec
Thank you. Clearly, a notaio is needed.
Italian law of succession is different from English. We are not sure which one applies to us. The marriage took place in England 5 years ago.
Do I understand correctly, that on marriage, the new spouse of an Italian citizen automatically becomes the co-owner of that property? This is comunione dei beni.
I suspect this applies to houses rather than such as cars eg I cannot go off and sell the VW golf, my wife being its legal owner.
If we go ahead with this house purchase in Italy,bought in her sole name, can she have a contract which states that, in case of divorce, the husband (me) would still get half of the bought property even if the husband's name doesnt appear on the house contract? Even before a divorce, could she kick me out, saying it's HER house?! It cant be comunione dei beni, as English matrimonial property law would apply due to our marriage having taken place in UK.
In reply to A newbie all over again! by Annec
Comunione dei beni applies to all property, even a car, although in practice a buyer never asks for proof of the spouses consent as is necessary in a sale of property!
You could draw up a binding private agreement between you to recognise your share of the house, which you could later enforce if you thought there was a risk of her selling without your consent. This agreement could be taken into consideration by a divorce court.
The applicable law of succession is that of your nationality, therefore English law for you and Italian law for your wife.
In reply to A newbie all over again! by Annec
Useful info, many thanks. The situation is becoming clear. Might you be interested in drawing up a legal document. It seems that 2 choices exist.
Choice a)
Italian house to be purchased in the sole name of Italian wife. English husband (me) draws up a privately binding contract with her to ensure that I have a number of rights eg access, prevention of sale without mutual agreement, etc.
If she dies first, Italian law applies to her estate, which automatically passes to me + our 2 small children, shared 3 ways presumably. If I die first, private binding contract re. the property, becomes void, the house at no stage ever having been an asset of mine.
Choice b)
Italian house to be in joint names. If she dies, the house automatically passes to me + our 2 children, as above. If I die first, the English law of succession applies, unless over-ridden by a will drafted to bequeath all assets to wife + 2 small children. Still a distant, but unlikely, possibility of 2 older English children of mine seeking a pay-out via the Italian legal system?
In reply to A newbie all over again! by Annec
Charlotte, could I ask a question concerning this?
We were married here in Italy (separazione dei beni) but are both English, we both already owned property here in Italy. If I sell my house and buy another and keep it in my name, as it was bought after our marriage, does it remain my sole property or is it automatically considered joint?
Would Italian or British succession apply to us as we are permanently resident here in italy and have no British assets?
Thanks.
In reply to A newbie all over again! by Annec
a) I have come across 2 separate Italian property law websites, both of which state that the law of Italian succession applies only to Italian nationals, not to foreigners domiciled in Italy
b) There exists a concept of "usufrutto" which allows the non-owner to enjoy the fruits of a property in a kind of temporary ownership until death. Coupled with this is another concept of "nuda proprieta".
Whether an English will and/or Italian will is required on my part is something I would need to take advice on.
In reply to A newbie all over again! by Annec
My notaio says that
1. if you are married in the UK you are automatically in comunione dei beni unless stipulated to the contrary.
2. To avoid Italian succession you just to have make a holographic (handwritten) will which you lodge with the notaio saying that as a British citizen you wish your beni immobili to be disposed according to your will or laws of succession of the country of your citizenship. thats it.
He is unusually well informed and constantly on the phone to the notarile college in Rome for clarifications so I suspect he is right.
In reply to A newbie all over again! by Annec
Maybe the children (7 + 4) could become the joint owners, and we both get wills for usufrutto.?
Whether the "comunione dei beni" applies to you depends on whether you matrimonial property regime is governed by English or Italian law. If your marriage has to date been based in the UK it would be governed by English law where if a wife buys a house in her own name it remains hers. You could choose to agree by making a public deed that Italian law should now govern your matrimonial property.
However, unless there are any major advantages to the wife owning the property in her own name, even if you have a right to a share in comunione dei beni, it would be preferable that you buy in joint names, in order to clearly protect your future rights and to enable you to make a formal will leaving your share to your chosen heirs.
English law will apply to your succession, therefore you have the freedom to choose who shall inherit. If you are domiciled in Italy at the time you die, your disinherited elder children would not be able to make a claim under the Inheritance (Provision for Family and Dependants) Act in the UK, although there is a distant possibility they could bring a claim in Italy alleging your Italian property should be governed by the Italian law of succession which would give them automatic rights to a statutory share.
I recommend that you make a public will before a Notary Public to ensure that it is correctly drafted and clearly states that you wish for English succession law to apply.