when does the Italian jurisdiction exist?

For the purpose of correctly identifying the jurisdiction in a judgment of personal separation between spouses who are citizens of different Member States of the Union pursuant to art. 3 EC Reg. no. 2201/2003 of the Council of 27 November 2003“habitual residence is the place of actual residence, in which there is a concrete and continuous development of personal life and possibly working life on the date of submission of the application” (Civil Cassation, SS.UU., ordinance n. 5830/2023 – text at the bottom).

Therefore, when it is intended to support the falsity of the results of a certification from public registers, such as for the certificate of residence in judicial separation disputes, it is necessary that this proof be extremely rigorous in its evidence and certain in its results.

The case

In a proceeding for judicial separation, one of the parties proposed preventive regulation of jurisdiction, pursuant to theart. 41 c.p.c.requesting the declaration of the lack of jurisdiction of the Italian judge “since the spouse had not habitually resided in the territory of the Italian State for at least six months before the filing of the application for separation before the national Court”.

In particular, the appellant claimed that her husband’s registered residence in Italy was only a formal and fictitious fact, as he was still resident in Qatar, as demonstrated by a certificate signed by the deputy official of the Italian Embassy. Furthermore, she argued “the improbability that a career individual resides in a small province, even though he participates in the capital of a North American company and has business interests in Qatar; while she would not reveal that she had maintained a network of friendships and contacts or the referring doctor at (Omissis), events that can be explained by the fact that there he also held the position of director of a paternal company ”.

The decision

The reference provision is the art. 3 EC Reg. n. 2201/2003 of the Council of 27 November 2003, which provides for general competence, for matters relating to the divorceat the personal separation of spouses and annulment of the marriage, by the “courts of the Member State: a) in whose territory is located: – the habitual residence of the spouses, or – the last habitual residence of the spouses if one of them still resides there…”.

The regulation in question does not contain any definition of the concept of “habitual residence” and it is necessary, for the Joint Sections, to seek an autonomous and uniform interpretation.

According to the principle repeatedly affirmed by the United Sections, for the purpose of correctly identifying the jurisdiction in a judgment of legal separation between spouses who are citizens of different Member States of the Union pursuant to art. 3 cit., “habitual residence is the place of effective residence, in which there is a concrete and continuous development of personal life and possibly working life on the date of submission of the application”.

Having said that, it should be noted here that the civil status registers, like other registers and directors provided for by the law, have an essential function, that of legal certainty and it is in the general interest, especially in complex societies, that certain legal facts are made knowable to anyone: hence the provision, in all modern legal systems, of the advertising system, carried out through the system of registers.

The main ones pertain to facts relating to people (the registry office, or population register, civil status, such as birth, marriage and citizenship), to real estate (public real estate registers; land register; register of rights on maritime state property ; etc.), given categories of movable assets (vehicle, naval, aeronautical register; register of ships under construction), intangible assets, etc.

Public registers, which are such because they are accessible to anyone and the office that holds them has this nature, perform publicity functions, traditionally divided into publicity-news, declaratory and constitutive.

They have enormous economic and social importance, as they produce or circulate “special forms of security” about events, which, directly or indirectly, make economic and social relations secure, or at least easier.

The “pivot” around which these proceedings revolve is the notion of certainty: these instruments have a common structural and functional trait, which consists in giving certainty of juridically relevant facts. In this way, public registers achieve the aim of legal certainty.

Therefore, when one intends to support the falsity of the results of a certification of similar registers, as for the certificate of residence in judicial separation disputes, it is however necessary that this proof is extremely rigorous in its evidence and certain in its results.

This probative result does not exist in the case in question, since the applicant’s assumptions are not suitable for passing the residence registry certification.

In particular, the appellant focuses its thesis on the certificate signed by the deputy official of the Italian Embassy referred to above.

However, underlines the Supreme Court, the interpretation of the act is by no means unequivocal, as the appellant claims, and it is a single indecisive element, not even supported by the further assumptions, completely devoid of conclusiveness, regarding the improbability of the choice of a residence in the province on the part of the husband, considering his life and work habits.

Conversely, there are other elements which are consistent with that residence, and which precisely for this reason do not need to be examined in detail, since it is not evidence against the defendant (but see: the “network” of friendships and contacts, and the doctors who care for him, as well as the function of director of a paternal company, circumstances admitted in the same appeal; real estate; registration in the register of financial promoters and in the Italian Health Service; Italian telephone number; cancellation of the lease).

In conclusion, the jurisdiction over the dispute in question is Italian.

Cassation, United Civil Sections, order n. 5830/2023