A recent decision of the Milan Tribunal rejecting the application for amendment of a settlement in a divorce proceeding held in an non-EU State is the subject of an interesting article (in Italian) by Sara Bernasconi, Sulla domanda di modifica di sentenza straniere di divorzio di cui è stata rifiutata la trascrizione, published in “Famiglia e diritto”, n. 4, 2016, pp. 377- 386.
On 20 May 2015 the Milan Tribunal rejected the application, made by an Ukrainian citizen residing in Italy, for the modification of a divorce settlement decision pronounced by an Ukrainian Court. The Milan Tribunal grounded such a decision on several grounds. First of all, the Ukrainian divorce decree had not been registered in the Italian Public Register; in the second place the Italian Officer of the Civil Status had refused to do so on the assumption that in the proceedings held in Ukraine there had been a violation of the essential rights of the defense. Finally, the applicant had not appealed against the Officer’s refusal to register.
Under Italian Law the recognition of a judgments adopted by the courts of a State that is not a member of the EU is governed by Law 31 May 1995 No 218. Article 65 of such law provides that a foreign decision on family status, such as a divorce decision, will produce its effects directly, with no need for a special procedure, subject to the following conditions: it is given by a court of the State whose law would be applicable under the Italian PIL rules; the defense rights of the defendant have been respected; it is not contrary to the Italian public policy. Registration of a foreign decision in the Public Registry is needed only to make the change of status opposable to all. Registration is thus not a necessary or a preliminary requirement for an application for amending a decision on a divorce settlement before the Italian courts. In fact an Italian court, seized for the amendment of a settlement decided in a foreign divorce proceeding, can recognize incidentally the decision on divorce.
However, this becomes no longer possible if the Public Officer has expressly refused registration of the divorce decision, as in the case at stake before the Milan Tribunal. In this case, the refusal of the Public Officer shows that one (or more) of the mentioned conditions is lacking. As the applicant had decided not to appeal such a refusal in the prescribed time limit, the Milan Tribunal was barred a re-examination of the conditions for recognition of the foreign divorce decision.
article by Valentina Vadacca