I am interested in knowing the legal consequences of being married
and/or living in Italy, with respect to financial rights and
obligations, child custody, inheritance, and divorce, as it compares
to American law.
The situation: my sister, a US citizen, has married an Italian
national in a US (civil) ceremony. They both currently live in
California. She has two children from a prior marriage; he has none.
They may have children together in the future. They are contemplating
having an additional marriage ceremony performed in Italy. They may
move to Italy in a few years. Both have parents with assets that might
be inheritable in the future, and both have some current assets from
prior to their (American) marriage. Her children also have some
independent assets.
If they remain residents of California, but have a ceremony performed
in Italy, what is different in a legal sense in terms of child
custody, financial rights or obligations, inheritance, or divorce
compared to if they hadn't (also) been married in Italy? For example,
would he automatically have custody of her children in case of her
death? Would disposition of marital assets be any different if either
died? Would the manner of proceeding with a divorce be different, for
example, would they need to be divorced under Italian law in addition
to American law? What legal differences would there be between her
current children and any they might have in the future?
Similarly, if they have a ceremony conducted in Italy, then move there
in the future, what would be different compared to if they just moved
there (having only been married in an American ceremony)?
Although this may seem like a focus on the negative, I'm just as
interested in the positive aspects too, but legal matters tend to be
most complicated in times of death, disagreement, and divorce, so it
seems like a good idea to wonder about them - in advance - in order to
provide the best advice and ultimately help this couple make the best
decisions for them. Please feel free to ask for clarifications if the
questions are not clear enough. |
Hi whynotnow,
1) If they remain residents of California, but have a ceremony
performed in Italy, what is different in a legal sense in terms of
child custody, financial rights or obligations, inheritance, or
divorce compared to if they hadn't (also) been married in Italy?
2) Similarly, if they have a ceremony conducted in Italy, then move
there in the future, what would be different compared to if they just
moved there (having only been married in an American ceremony)?
Briefly, the answer to both questions is that the ceremony in Italy
will change nothing because under Italian law, they are already
husband and wife.
Since your sister has already been legally married in the U.S., her
marriage is recognized internationally. Members of the Hague
Convention (the U.S. and Italy are two) have agreed to recognize each
other's public documents when attached to an "apostille". Therefore,
your sister and brother-in-law are already considered husband and wife
in Italy and celebrating the marriage there by having a ceremony will
be only that, a ceremony (or celebration of the marriage).
What is an "Apostille"?
"An ?apostille? is a certificate issued by a designated authority in a
country where the a treaty called the Hague Convention Abolishing the
Requirement for Legalization of Foreign Public Documents applies..."
What is a Public Document under the Convention?
"Article 1 of the Convention provides that for the purposes of the
Convention the following are public documents:
b. administrative documents such as civil registry records or office
of vital records regarding birth, death, marriage, etc.;"
http://travel.state.gov/law/info/judicial/judicial_2545.html
CONVENTION ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS
http://www.hcch.net/index_en.php?act=conventions.text&cid=41
Member States
# Italy
# United States of America
http://www.hcch.net/index_en.php?act=states.listing
Welcome to the Apostille Section
http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37
California Secretary of State
Notary Public
Authentication Information
Apostille or Certification $20.00
"Any document that has been executed by County Health Officers and
County Local Registrars can only be authenticated if the document is
first certified by the county clerk's office. The only public
officials our office can authenticate are the ones listed above.
These documents must be current certified copies or must have been
notarized by a California Notary Public..."
"Any document requiring Authentication of a public official?s
signature, may be mailed (include a cover letter listing the country
of destination and a self-addressed stamped envelope), or hand
delivered, to the Sacramento Office of the Secretary of State for
processing. Additionally, documents requiring Authentication of a
public official?s signature, but not including notaries public, may be
hand delivered for over-the-counter service to any of the Secretary of
State regional offices. Office locations are as follows..."
http://www.ss.ca.gov/business/notary/notary_authentication.htm
I was glad to work on this for you. If you have any questions, please
post a clarification request and wait for me to respond before
closing/rating my answer.
Thank you,
hummer
Google Search Terms Used: legal marriage international california hague apostille |
Request for Answer Clarification by
whynotnow-ga
on
18 Feb 2006 09:58 PST
Thank you for an excellent response to the main question regarding the
overall consequence of such an (additional) wedding.
To clarify the consequences regarding child custody, financial rights,
and divorce: are you also saying that these all legally regulated by
where they reside, rather than by which countries have married them?
In other words, are you saying that so long as they reside in
California, only California child custody, marital, and divorce laws
apply to them, regardless of whether they have "married" in Italy? And
therefore also that if they move to Italy, then (and only then) do
Italian custody, marital, and divorce laws become the dominant laws,
regardless of their marriage initially being in the US?
|
Request for Answer Clarification by
whynotnow-ga
on
18 Feb 2006 10:30 PST
One other comment: there's an interesting document at URL
www.eu.int/comm/justice_home/ doc_centre/civil/doc/com_2005_082_en.pdf
which discusses at least the issue of divorce between EU citizens of
differing nationalities or residencies. This discussion appears to
focus on "conflict-of-law" rules, which help decide which country (or
state) gets legal jurisdiction over a matter when there are several
possible jurisdictions and there's a conflict. Wouldn't this affect
the situation I'm wondering about?
Similarly, a recent California Court of Appeals decision ruled that
California law applies even to a parent who has moved out of state
with a child. [URL for a related article:
http://www.newsmax.com/archives/articles/2005/12/8/113204.shtml]
In all these cases, the matter seems to be focused on conflict-of-law
rules deciding legal jurisdiction based on nationality or residence,
more than the "mere" fact of where a marriage ceremony happened to
take place. Do you agree, or if not or with qualifications, why or why
not?
|
Request for Answer Clarification by
whynotnow-ga
on
18 Feb 2006 11:54 PST
Correction: the URL for the EU document should be:
http://www.eu.int/comm/justice_home/doc_centre/civil/doc/com_2005_082_en.pdf
|
Clarification of Answer by
hummer-ga
on
18 Feb 2006 14:16 PST
Hi whynotnow,
I'm sorry if I misunderstood your question or if I wasn't clear
enough, but my focus was on what effects an Italian marriage ceremony
would have on anything, whether they lived in Italy or California
(subject: "Legal Consequences of Additional Wedding in Italy"). My
answer was the ceremony would not matter at all because they are
already legally married as far as Italian law is concerned.
I failed to take it a step further and to say that child custody
agreements, divorce rulings, inheritance, etc., are a whole other
matter and will fall under the jurisdiction of residency, citizenship,
civil code, international law, treaties, etc., but the California
marriage will remain legally binding in Italy and California (with or
without the Italian ceremony).
"To clarify the consequences regarding child custody, financial rights,
and divorce: are you also saying that these all legally regulated by
where they reside, rather than by which countries have married them?"
Yes, as stated above. Saying everything comes down to where they
reside is an over-simplication of some complicated issues, but if it
comes down to it, each country will consider them married.
"In other words, are you saying that so long as they reside in
California, only California child custody, marital, and divorce laws
apply to them, regardless of whether they have "married" in Italy?"
I'm saying the Italian wedding won't change anything but his
nationality could be taken into account by the courts when some
decisions are made.
"And therefore also that if they move to Italy, then (and only then) do
Italian custody, marital, and divorce laws become the dominant laws,
regardless of their marriage initially being in the US?"
Well, yes, whatever jurisdiction they are in but international law,
customs, treaties, etc. will play a role in determining and enforcing
court rulings, but the place of the marriage won't have any bearing on
anything.
Correction: the URL for the EU document should be:
http://www.eu.int/comm/justice_home/doc_centre/civil/doc/com_2005_082_en.pdf
Similarly, a recent California Court of Appeals decision ruled that
California law applies even to a parent who has moved out of state
with a child. [URL for a related article:
http://www.newsmax.com/archives/articles/2005/12/8/113204.shtml]
"In all these cases, the matter seems to be focused on conflict-of-law
rules deciding legal jurisdiction based on nationality or residence,
more than the "mere" fact of where a marriage ceremony happened to
take place. Do you agree, or if not or with qualifications, why or why
not?"
Yes, I agree. The U.S marriage certificate is just a legal document
confirming that two people are husband and wife, recognized by both
Italy and the U.S. If the couple end up in court, legal jurisdiction
will be determined by more important issues, such as residency and
nationality, rather than by where they were married. The important
issue as far as the marriage goes, is: is the marriage legal in both
the U.S. and Italy? The answer is yes, as determined by the Hague
Convention. Other issues (e.g., child custody) will be determined on
another scale entirely.
I hope I've finally been able to nail this down for you.
Sincerely,
hummer
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