180 Italian Divorce Petitions Overturned by Top English Judge

While the Italian government has been deliberating and debating the approval of the “quickie divorce” for several months, with a decision yet to be made, many Italian couples, having been assisted by agencies guaranteeing a faster divorce abroad, believe they have achieved their goal without the need to go to an Italian court. The lengthy Italian process to divorce requires an initial separation proceeding followed by a three year “cooling off” period -- far too long for most couples who simply want to end their marriage and move on with their lives.

According to EU legislation, European citizens who are habitually resident in the UK, are entitled to apply to the English Courts for a divorce and such divorce should be recognised in Italy.

With this in mind, Italian couples believed that, by paying a sum of €4,000 to an agency, they could by-pass the Italian process and obtain a faster divorce

Between 2010 and 2012, 180 divorce petitions were issued in Courts around the UK. More than 90 couples obtained a decree absolute (a non-appealable judgement of divorce), 18 obtained a decree nisi (a temporary measure) and for the remainder, the process is still at an early stage.

On 30 September 2014, England’s top family judge, Sir James Munby, President of the family court, overturned 180 divorce cases obtained by Italians in what he called a “conspiracy to pervert the course of justice on an almost industrial scale”.

In 2012, an ‘eagle-eyed’ staff member at Burnley Crown Court saw that two Italian couples allegedly living in the South-East had filed their petition in the North-West and both had given the same residential address. The English authorities commenced an investigation and discovered that many couples had used the same address in the UK – a post office box in Maidenhead, Berkshire.

“Given the dimensions of the mailbox it is clear that not even a single individual, however small, could possibly reside in it,” Sir James said.

The consequences of this decision is naturally disastrous for the couples involved.

According to Italian lawyer Avv. Alessandro Gravante, Head of the Litigation & Dispute Resolution Department at Giambrone, “once the Orders are declared null and void, the former spouses are deemed still married to each other, causing huge problems on several fronts”.

Those couples aware of the illegality of the procedure, could be accused of complicity to commit a crime in both in Italy and England.

Those who were unaware of the illegality, and can demonstrate that they acted in good faith, may be entitled to claim compensation for damages against the agent who administered the “quickie divorce” in England. They may be entitled to claim, not only the fees paid but also any damages, patrimonial or otherwise, incurred as a result of the invalidity of the divorce.

For example, someone who, in the intervening period, has remarried, could be prosecuted for committing bigamy - a crime for which the Italian Criminal Code provides for a penalty of one to five years imprisonment.

Someone who in the intervening period had a child with a new partner could have conceived the child out of wedlock.

With regard to civil law, patrimonial divorce agreements obtained in England, and now cancelled, are also null and void. The same is so for any agreement relating to the maintenance of the spouse and children. Even deeds relating to the estate division within the divorce may be invalid.

In terms of inheritance law, one of the many legal consequences that divorce can cause is the loss of inheritance rights of each spouse to the other, with the result that, due to the invalidity of the divorce, the marriage is still valid and therefore succession rights are still in place. The death of one of the former spouses occurring after the “quickie divorce” could have significant consequences on the surviving spouse’s rights to inherit the estate.

In conclusion, couples who obtained ‘quickie’ divorces abroad, would be required to re-start the whole process in order to be validly and legally divorced in accordance with  Italian law.

Avv. Gabriele Giambrone, Managing Partner at Giambrone, affirmed that “whoever had been affected by the legal earthquake that took place [in the last few days] in England would need to face a number of issues that could, rather than bring them the “quick English divorce" that they had hoped for and thought they obtained, instead, bring them a long Italian ordeal, which, if not properly handled, could take years to be resolved”.

October 2014