Case number and/or case name
20110406 Tribunal of Tivoli (BIIa, BI)
Summary
Pursuant to Article 3(1) of Regulation (EC) No 2201/2003, Italian courts have jurisdiction over an action for judicial separation brought by an Italian citizen against a German citizen residing in Germany, if the habitual residence of the plaintiff is located in the Italian territory and the plaintiff has been residing in Italy for at least six months immediately prior to the filing of the document instituting the proceedings. Pursuant to Article 31 of Law No 218/1995, Italian law – as the law of the State of prevailing localization of the matrimonial life – applies to the legal separation of two spouses of different nationality, who have lived in Italy for most of the time. For this purpose, it is irrelevant that they spent short periods of time in Germany. Pursuant to Article 5(2) of Regulation (EC) No 44/2001, Italian courts have jurisdiction over a counterclaim for maintenance allowance (assegno di mantenimento), which is ancillary to an action for judicial separation over which Italian courts have jurisdiction. To the contrary, Italian courts do not have jurisdiction over a claim for a contribution to the maintenance of a child, since said claim is not ancillary to an action concerning the status of persons. In fact, said claim falls under the jurisdiction of the courts of the place where the maintenance creditor (i.e. the child) has his/her domicile or habitual residence, insofar German courts, where the child has resided in Germany since his/her birth. Pursuant to Article 8 of Regulation (EC) No 2201/2003, Italian courts do not have jurisdiction in matters of parental responsibility over a child who has never been habitually resident in Italy. Nor do Italian courts have jurisdiction pursuant to Article 10 where no wrongful removal of the child from Italy or failure to return him/her to Italy has occurred, or pursuant to Article 12 if the defendant has not accepted such jurisdiction. Pursuant to Article 5(3) of Regulation (EC) No 44/2001, Italian courts have jurisdiction over a claim aimed at ascertaining that the judicial separation is due to the other spouse’s fault (addebito della separazione giudiziale), which is brought by an Italian citizen against a German citizen. In fact, said fault implies the breach of marital duties and, as such, arises from a tortious conduct committed with wilful misconduct or negligence, whose alleged harmful consequences occurred in the Italian territory.