Especially in recent times, there has been a renewed interest in the marriages performed abroad by Italian citizens, both with regard to couples who decide to get married in an exotic destination, and for those who wish to get married with a foreigner.

This issue reveals some interesting juridical implication, regardless the choice’s reasons.

According to art. 16 of Presidential Decree 396/200 (new system of marital status), a marriage contracted abroad has to be celebrated, alternatively, before the diplomatic authority or the Italian consulate or before the local authority.

In the latter case, the applicable laws are those of the place where the marriage takes place, and it is necessary, in order to get the Italian recognition, that the partners send a copy of the marriage certificate at the diplomatic or consular authorities.

 

Therefore, the celebration of Italian citizens’ marriage can take place abroad, before the local authority, according to local laws. This is the particular case shall be the subject of this reflection, especially in light of the recent judgment of the Supreme Court on the validity of a telematics marriage (Cass. Civ. Sez. I, July 25, 2016, n. 15343)

The legal capacity to get married, together with the other conditions for marriage, are governed by the national law of each betrothed at the time of marriage, according to art. 27 L. 218/199, the law that lays down on the rules of international private law reform.

It must be remembered, also, that art. 115, first paragraph, of the Civil Code, states that Italian citizens who get married abroad, shall nonetheless obey to Italian rules concerning the necessary conditions for marriage.

In this sense, then, the reference is to the laws of the Civil Code that regulate the matter under consideration, in particular the provisions of articles 84 and the followings.

Let see them briefly.

As we all know, the conditions mentioned belong primarily to the requirements that the person, as an individual, must possess in order to contract marriage validly. notably:

- The age of majority (or the age of sixteen in the case where the court, upon verification of psycho-physical maturity of the person concerned and detection of serious reasons, issues the authorization decree);

- The full sanity;

- Freedom of state, namely the lack of constraints arising from a previous marriage having civil effects (no limitation is, however, expected, to the detriment to those who are joined in marriage to the only religious ceremony).

In addition to these requirements, the law defines situations that cause obstructions to freedom master, and which are related, mainly, to the relationship between the engaged and their eligibility to marry each other.

So there must be no deemed void:

-   Constraints of kinship, adoption, affinity and affiliation in the limits of Art. 87;

-  Having been sentenced for murder or attempted consumed against the spouse of the person you intend to marry;

Still, in relation to the second category, which involves a financial penalty,

-   Must not have the so-called "Grieving widow"

-   They must be observed all the publications provided for by law.

On the other hand, and with reference, this time, to the formal requirements relating to the celebration, it has to be taken into consideration the provisions of art. 28 of Law 218/1995, which establishes the validity of the marriage, if it is considered as such by the law of the place of celebration, or by the national law of at least one of the spouses at the time of the celebration, or by the State of residence at that time.

The rule, therefore, outlines three competing criteria to establish the validity of the marriage contract.

The only expressed limit is that the applicable law has to be compatible with the essential nucleus of mandatory rules and immanent institution of Italian marriage. If a situation of contrary to public policy happens due to the application of the abovementioned criteria, it shall be necessary to apply the law invoked by the other connecting criteria or, in the alternative, the Italian law.

The Supreme Court, in its most recent ruling n. 15343/2016, has taken a position on a story that originated with the marriage of a pair constituted by an Italian and a Pakistani.

The circumstances, very special indeed, originate from a marriage celebrated thanks to a telematic support, through the platform "Skype."

At the moment of the marriage certify The presentation of the act to be transcribed, the municipality of residence of the Italian town refused this requirement, opposing the very contrary to public policy inherent in the marriage contract with such rules.

The assumption on which the refusal was based, is carried out in consideration for which, according to the officer of civil status, the presence of the engaged couple before one who officiates the marriage, both fundamental and inescapable principle of Italian law in order to ensure their freedom in expressing the desire to get married.

Already the Bologna Court upheld the appeal of the pair, later confirmed by the Court of Appeal of the same city.

The Ermellini, on the basis of what has already been expressed by the judges of merit, definitely give reason to the couple, the unfounded nature of the motivations of the Interior Ministry: by virtue of the provisions of fact, L. 218/1995, the invalidity of marriage can not be deduced from the legitimate application of Pakistani standards, because, basically, would flatten every existing peculiarities between the different systems. If the marriage act is valid for the foreign jurisdiction, as it deems appropriate to represent the consensus of the engaged in a conscious way, it can not be regarded as contrary to public policy just because celebrated in a form not attributed by the Italian.

Moreover, it could not be said that the form double in art. 107 cc should be considered a Golden Rule, since the legislature itself expressly recognizes the celebration inter absentes in certain cases, in which, however, remain the minimum requirements for the legal configurability of marriage, that is the manifestation of the will double by two people of different sex in the presence of an official celebrant (as, in the present case, the Pakistani authorities).

Once again, therefore, it confirms the principle of substance over form.