Учебный год 22-23 / Alpa_Italian_Private_Law_University_of_Texas

62 The Family and Succession

dispute on an issue of particular importance, either spouse may ‘make an informal approach to the judge to indicate the provisions he or she would regard as most suitable’. The judge, ‘having heard both parents and any children over 14 years of age, shall suggest the solution which he considers best serves the interests of the children and the family unit. If the dispute is not thereby resolved, the judge shall grant the power to make the decision to whichever spouse he considers most suitable in the current instance to look after the children’s interests’ (Art 316 civil code).

3.7. Property relations between spouses

3.7.1. Joint estates

It has been said of the evolution in property relations between spouses over the centuries that from being of the nature of a property agreement, such as one might have sealed and notarised, marriage has developed into a lifetime community of interests, both material and spiritual. The property dimension also draws inspiration from constitutional principles: legal and moral equality, which in property terms means equal duties and responsibilities, along with equal rights.

To ensure equality (Art 29 Constitution, but also for the benefit of the individual within the family, Art 2) the reform introduced the principle of community property, derived from the existing legal form of joint estates. All properties acquired during the marriage, whether together or separately, belong jointly to both spouses. Rents and revenues therefrom are also owned in common, as well as enterprises run by both spouses (Art 177 civil code). The proceeds of activities undertaken by the spouses separately from each other – for example wages and salaries – become common only at the moment when the joint estate is severed, and the residue, that is, whatever remains from such earnings, is divided between the spouses. This does not mean that each spouse is free to spend separate income without giving thought to the needs and interests of the family (Art 177c civil code)

Personal effects as defined below are excluded from the joint estate by Art 179 civil code:

•property acquired by the spouse before the marriage;

•property acquired also after the marriage by gift or succession on death;

•goods of strictly personal use (for example, clothes and jewellery);

•goods which serve the exercise of a profession (for example, books and instruments);

•money obtained in the form of damages;

•money obtained from the sale of personal effects.

64 The Family and Succession

profound effect on the regime of filiation, meaning usually the rights and duties of children, and above all the assessment of the nature of relatedness between parents and children, from which flow many legal consequences.

Differences in how this assessment is carried out lead, if only in part, to differences in the effects of filiation, depending on whether it concerns legitimate or natural issue, the former conceived within and the latter outside wedlock.

Although to establish legitimacy it would in principle be necessary to show that the parents were married to each other when the child was conceived, in practice it is not always necessary to make inquiry to ascertain this, as two legal presumptions are applied: (a) that the husband is the child’s father and (b) that conception occurred after the parents married each other.

3.8.1.1. Presumption of paternity and maternity. The presumption of paternity of the husband means that any child born into a family based on marriage is presumed to have been conceived by the mother through the agency of the man to whom she is married. This is not, however, a merely practical (so to speak) or sociological or statistical consideration: the presumption has ancient roots and derives from a disapproving attitude towards extra-marital relations, and the fact that the father acquired as his own whatever was born into his family (Art 231 civil code).

3.8.1.2. Presumption of conception. The presumption of conception applies to births which occur at least 180 days, after the wedding or not more than 300 days after dissolution of the marriage. The gestation period cannot indeed be less than 180 days, nor exceed 300. If the child is born sooner, it is still presumed that the husband is the child’s biological father, but the contrary, if true, is easily proved (Art 233 civil code). If the child is born more than 300 days after dissolution, he is presumed illegitimate, but if he was in fact conceived during marriage, this can be demonstrated (Art 233(2)). Children born while their parents are separated are presumed legitimate, but their legitimacy can always be contested.

3.8.1.3. Disclaimer of paternity. The presumption of the husband’s paternity can also be challenged through a procedure known as disclaimer of paternity. Since an order sought and obtained under this action operates to a child’s disadvantage by removing his or her legitimate status, and thus is inconsistent with the presumption in favour of legitimacy (favor legitimatis), it is obtainable only under one of the following specified circumstances:

(a)if the spouses have not cohabited between the 300th and 180th days preceding the birth of the child;

(b)if the husband was impotent (or merely infertile) during the relevant period;

(c)if the wife has committed adultery and hidden from her husband both her pregnancy and the birth of the child (but actual adultery must be proved, not merely the existence of a relationship).

The action may be commenced by the father, or by the mother or a child who has attained majority.

3.8.1.4. Contesting legitimacy. There is also a presumption of maternity. The identity of the mother is always certain: that she gave birth to the child is attested by an entry in the register of births, along with the name of the father. The presumption of maternity can nevertheless be overturned in an action contesting legitimacy. It must be demonstrated that the newborn child was substituted, or that labour was false (non-existent and simulated). The action contesting legitimacy may also serve to exclude legitimacy when the marriage is void, when the child was born outside the prescribed period described above, and when both parents acted in bad faith (Arts 239 and 248 civil code). A child can claim legitimacy. To do this, he or she must prove maternity and paternity, conception within marriage, and the fact that his or her parents were legally wed (Art 130 civil code).

3.8.1.5. Possession of civil status. If there is no birth certificate to confirm a child’s status, legitimacy can be established by means of the child’s possession of civil status, that is, by showing that he or she has been living in circumstances which give rise to a presumption of legitimacy, such as having the same surname as the parents, being treated as a child of the family and being considered as such in the social milieu (Art 238 civil code).

3.8.1.6. Legitimation. A natural child can become legitimate, that is, acquiring the status of a legitimate child, or legitimacy, when the parents of the child marry after his or her birth (legitimation by subsequent marriage, Art 283 civil code). The parents must in addition, by a document of recognition, have acknowledged that the child is their own. The effects of legitimacy run from the date of the marriage if the child was recognised at or prior to the marriage, or from the date of recognition if this was later.

When a child cannot be legitimated by subsequent marriage, it is possible to obtain legitimation by judicial order (Art 284 civil code). This requires that legitimation does not act against the child’s interests

66 The Family and Succession

and there are other conditions relating to consent and the ages of the parents.

3.8.1.7. Parental authority. The reform brought in a new regime of parental authority over children. In the 1942 code this was attributed to both parents, but to be carried out by the father (the so-called paternal authority). Today this is replaced by parental authority, exercised by common agreement by both mother and father (Art 316 civil code).

3.8.2. Adoption

A child can become legitimate also by means of adoption. The 1983 reform (law no. 184) has wrought profound changes in this institution. Today two kinds of adoption are distinguished according to whether the child is a minor or has attained majority, and there is also a regime covering international adoption of foreign minors which is in line with the relevant international conventions.

3.8.2.1. Adoption of persons who have reached majority. Adoption of adults is almost always for reasons connected with property. It allows a person without children to make provision for the inheritance of his or her property and name. Between the adopting and the adoptee there must be at least 18 years of difference.

Children born outside wedlock cannot be adopted by their parents. For adoption the consent of both adopting parents and adoptee and the assent of the parents of the adoptee and of the adopting parent’s and adoptee’s spouses is required, but an order of the court can make good any absent assents. The relationship established between adopting parent and adoptee is equivalent to that of legitimate issue. However, the adoptee maintains relations with his or her family of origin. Although adoption establishes a relationship between adopting parent and adoptee, no relationship is established thereby between the adoptee and the adopting parent’s relatives.

3.8.2.2. Fostering. The law of 1983 created for the first time a coherent set of rules covering fostering of minors. Fostering is designed to deal with temporary difficulties in the family of origin. In such cases the minor is fostered with another family which provides for his or her maintenance and education with a view to a return to the family of origin when circumstances permit. Fostering is temporary in nature: it does not therefore alter the minor’s family status, nor have consequences for the minor’s surname or rights to succession. It is thus essentially an arrangement of assistance, aimed at restoring the minor’s relationship with his or her own family and not at substituting it with another.

3.8.2.3. Adoption of minors. The law considers it a basic right of minors to be brought up within their own family. When this family is, however, incapable of looking after the minor and the difficulty is not merely temporary, but involves neglect amounting to abandonment, the minor may be adopted by a suitable family. In this way the neglect is put right and the minor is again assured the basic rights of maintenance, instruction and education (Art 30(1) and (2) Constitution).

For this reason, adoption is reserved to cases where the minor has been neglected materially and morally for reasons beyond a temporary difficulty in the family of origin. The adoptive parents must be a couple married for at least three years and not separated, even de facto. The original text of the law established that the age of the adoptive parents must be at least 18 but not more than 40 years more than the adoptee’s. The Constitutional Court, however, has held that these age limits are too restrictive. First, disapplying the lower limit where one of the adoptive parents was less than 18 years older than the minor. In such a case the court may consent to the adoption if otherwise the minor would be exposed to serious unavoidable harm. Subsequently, the Court has held that the upper (40-year) age limit was also too restrictive and a recent, very innovatory judgement has disapplied the upper limit where both the adoptive parents were more than 40 years older than the minor. The judge must decide whether the adoption not going ahead due to the ages of the adoptive parents would expose the minor to serious unavoidable harm: if so, consent should be given to the adoption. The family court can order adoption as a result of a procedure designed to establish both the extent of the neglect of the minor and the suitability of the prospective adoptive parents. If the minor is 14 or more years of age his or her consent to the adoption is required. Adoption severs all relations between the minor and his family of origin and makes him a legitimate child of the adoptive family with full relations to both the lineal and collateral relatives.

The adoption of minors’ regime is a completion of the special adoption rules introduced by law no. 431 of 1967. This is a basic instrument for the protection of minors who cannot find within their own families the essential conditions for their human and civil development. In this sense the constitutional principles designed to protect everyone’s basic rights are given effect (Arts 2 and 3 Constitution), and in particular the rights of a minor to maintenance, instruction and education, even where the parents are incapable of discharging this duty (Art 30(1) and (2) Constitution). The corresponding question of the parents’ rights arises: these too are guaranteed by the Constitution (Arts 29 and 30(1)) as are general guarantees of assistance to families in situations of need (Art 31).

Adoption is effected by a procedure in the family court. It is not permitted for parents to give their own children for adoption via any

68 The Family and Succession

private arrangement, nor may they give them for fostering indefinitely (or for any period greater than six months) without informing the tutelary judge. Judicial intervention in adoption and fostering has the purpose of guaranteeing the rights of minors and avoiding unconscionable commercial transactions. There are three distinct phases to the procedure: declaration of suitability, preadoptive fostering, and adoption order. In the first phase the judge makes sure that the necessary conditions for adoption obtain: the state of neglect through inquiry into the minor’s recent history, his or her legal status and actual situation, and the conditions in which he or she has been living. The situation of neglect cannot be due to force majeure alone (through temporary economic or other difficulties such as illness or absence of parents in hospital). Once suitability for adoption has been declared, the prospective adoptive parents can now take charge of the minor for preadoptive fostering, on probation, so to speak, so as to establish whether the new family milieu is suitable for the minor’s personal development. It should be noted that the parents cannot ‘choose’ the minor they wish to adopt. A team of psychologists and social workers assigns the minor to the couple it considers best able to bring him up. Once a year of fostering has elapsed and the necessary checks and monitoring of the adoptive family completed, the court can declare that adoption may proceed, or else reject the parents’ application.

It is debated today whether recourse to special adoption is necessary but discriminatory, in that it favours by its nature better-off families, and so operates against poorer families who do not have the means to fulfil the obligations of maintenance, instruction and education that the law imposes. This is a sensitive issue, raising some of the negative aspects of special adoption, which nonetheless remains a very useful instrument of support for families, and, in particular, for neglected and abandoned minors.

3.8.2.4. Particular cases of adoption. In certain specified situations adoption of minors can take a simpler form with different requirements of the prospective adopters. This arises when the minor is not in a position of neglect (for example, the adoption of one’s spouse’s child by another father or mother, or adoption of an orphan by relatives or friends). It can also arise where the minor has suffered neglect, but preadoptive fostering by a married couple has proved impossible to arrange, for example, because the minor is an older or a ‘difficult’ child and it has not been possible to find a young couple prepared to take care of him.

This type of adoption is available not only to couples, but also to single people, and there is no maximum age for adopting, so long as there is at least an 18-year age difference between adopter and minor. Adoption is effected by consent between the adopter and the adoptee

(or the latter’s legal representative), as ratified by the court. The consequences of adoption in these cases are less extensive than those otherwise obtaining with adopted minors, and are equivalent to those arising from adoption of an adult (see above at 3.8.2.1.)

3.8.2.5. International adoption. The results of the regime for adoption of children have on the whole been positive, because thousands of abandoned and neglected children have been returned to a family milieu. However, the difficulties and delays associated with the procedure have led couples wishing to adopt to look abroad to countries where they will find it easier to realise their intentions. To control this tendency and prevent or restrict the ‘trafficking in minors’ that has grown up around it, the legislature has intervened in the form of law no. 184 of 4 May 1983.

Organisations concerned at an international level with the protection of minors have also intervened.

Law no. 476 of 31 December 1998 ratifies and gives effect to the Convention on the protection of minors and co-operation in international adoption, signed at the Hague on 29 May 1993. The same law amends, as regards adoption of minors from abroad, law no. 184 of 4 May 1983.

So today married couple who wish to adopt a minor from abroad must apply to the family court, which will determine whether the necessary conditions are met (Arts 29bis and 30). The spouses must confide the carrying out of the procedure to one of the appropriately authorised bodies. Once all the documentation necessary for the various assessments has been obtained, the body will send all relevant information to the commission which will evaluate the situation, and, if it considers the minor’s interests are best served thereby, authorise the adoption.

Adoption may also be pronounced abroad. In such cases, the court will verify whether the requirements for doing so also in Italy have been met (Art 35).

3.9. Illegitimate issue

3.9.1. Recognition of natural children

The birth of a child outside wedlock confers an immediate obligation of aid, education and instruction identical to that in respect of legitimate children (Art 261 civil code). But having a child does not entail an obligation to recognise the child as one’s own. This principle obviously does not apply to legitimate children born within wedlock, but to illegitimate children born outside wedlock (natural children). In the civil births register, the name of the mother and the father can be indicated only if they have registered the birth: otherwise the child is designated of

70 The Family and Succession

unknown parentage and given an arbitrary name. Once recognised, the child can obtain authorisation from the judge to keep the original name preceded or followed by the name of the parent who has recognised him or her.

If on the other hand the parent wishes to enter into a relationship of natural issue with the child, he must make a solemn form declaration of recognition of the natural child.

The recognition is effected by a public document (executed before a registrar, tutelary judge or notary) or in free form as part of a will (Art 254 civil code). Recognition can be carried out only by a person over 16 years of age, conditions cannot be attached, nor can it be done through another person. Furthermore, recognition cannot have legal consequences for persons other than the parent and the child; it can assert nothing regarding the other parent.

3.9.2. Judicial declaration of maternity and paternity

The child may apply to the court for a declaration of paternity or of maternity (Art 269 civil code). This declaration can only be made in the same circumstances as would make a recognition permissible (Art 269 civil code).

Evidence can be furnished by any means. Maternity can be proved by showing that the person who claims to be the child is the same person as the woman claimed to be the mother actually gave birth to. The action is not time-limited, and can be brought by a descendant (Art 270 civil code). It may also be brought in the child’s interest by the other parent, in which case the child’s consent is required if he is 16 or more years of age. In any case, the court will decide if the action could prejudice the child’s interests (Art 274 civil code). A favourable decision produces the same consequences as recognition (Art 277 civil code). A child who cannot bring this action may nevertheless apply for material assistance from the natural parents (Art 279 civil code).

3.9.3.Present legal position of children born of adulterous or incestuous relationships

While children born of an extra-marital or adulterous relationship can be acknowledged and thus become part of the family (with the consent of the other spouse and of any other children: Art 252 civil code), neither recognition nor seeking a declaration of paternity or maternity is possible in the case of a child born of an incestuous relationship. An exception is made where the parents were not aware at the time of recognition of their mutual relatedness, and where the marriage from which the affinity derives has been annulled. When only one of the parents has acted in

good faith, only he or she may declare recognition and only in order to avoid prejudice to the child (Art 251 civil code).

3.9.4. The relation between legitimate and natural issue

Academic opinion has it that the rules concerning natural (and legitimate) issue are among those that the 1975 family law reform has most innovated, both in terms of the ways in which filiation can be settled, and of the consequences of this being done, in short the rules concerning the relations of parents to their children. In so doing the reform has completed a process of renewal of civil code rules – up until then still mainly inspired by a ‘nineteenth-century’ conception of the family, derived from the Napoleonic Code – which has progressed in stages via the principles in the Constitution, special laws and decisions of the Constitutional Court.

All children, even those conceived in wedlock, may, pursuant to Art 269 of the civil code, now seek a declaration of paternity, and without legal time limits. The importance of this provision should be emphasised. Judicial determination of filiation can no longer be considered as, so to speak, a subordinate and residual recourse vis-à-vis recognition, but is concurrent with it and of equal status in lending certainty to filiation.

As regards legitimate issue, the measure that corresponds to these innovations is the new regime of legal presumptions and status actions that spell the end of favor legitimitatis, meaning the tendency, notwithstanding civil code provisions, to give a more protected status to a child deemed legitimate, even though this purported relationship may not correspond to actuality.

The entire regime of filiation demonstrates a tendency to combine formal certainty with a respect for the realities of filiation relations (the so-called favor veritiatis). But this is by no means the only value promoted by the reform. The regime of second recognition – with the power it gives a child of at least 16 years of age to revoke his consent, and the power given to judges to evaluate whether a second recognition is in the interests of a child aged younger than 16 – and now (since a Constitutional Court decision in 1990) the scope of judicial declaration are both indications of limits imposed on the lengths to which a search for the truth of a child’s parentage may be taken. Or better expressed, these legal instruments help us grasp the true basis of the principle, which is not a purely abstract homage to ‘truth’ seen as an absolute value, but is intended rather to give effect to the principle of ‘responsibility for procreation’ embodied in Art 30(1) of the Constitution, which imposes an obligation on anyone whose conduct has resulted in a birth to take responsibility for the child’s upbringing as a man or woman and as a citizen, but which at the same time does not permit the parent who fails