Case Study: how to make two foreign spouses purchase a property together if only one can be present in the notarial deed?

1. Introduction
2. The legal community of property regime
   1. The legal community of property and the purchase of an asset
   2. Assetts excluded from the legal community of property
3. The Case Study
4. The matrimonial property regime of purchasers
5. The “Lex rei sitae”
6. Conclusions

Introduction

Two foreign citizens (extra Europen Union Country), married under the legal community of property regime, wanted to purchase together a property in Italy, and initially intended to appear in the flash at the notarial deed of sale.

A very few days before the deed, however, one of them told me to not be able to be present at the notarial deed of sale in Italy.

So how to make both of them purchase the property even when only one spouse can appear at the notarial deed?

The legal community of property regime

Italy the legal community of property is the matrimonial property regime thanks to which the property that the spouses buy, even separately, during the marriage, are common to both spouses.

The community of property is a community without shares, and therefore each spouse will become the holder of the whole right and not in relation to the share.

The legal community of property regime is a type of matrimonial property regime that operates by law, if the spouses have not expressed a different choice at the time of marriageor later.

The legal community of property and the purchase of an asset

Pursuant to art. 177 of civil code when even only one spouse in the legal community of property regime appears in the deed of sale alone, the purchased property automatically becomes the property of both spouses.

Obviously there are ways by which the married spouse in the legal community of property can buy an asset during the marriage that does not automatically become part of the community.

Assetts excluded from the legal community of property

Art. 179 of civil code indicates the cases in which the goods do not become part of the legal community of property; these can be summarized as follows:

• property belonging to the spouse before the marriage, or on which the spouse had a real right of enjoyment bevore the marriage (Italian real rights (or rights in rem): definition and classification – The Legal Nook (antonellolawfirm.com);
• property that a spouse acquires after the marriage as a result of donation or succession unless specified that they are intended for community property;
• strictly personal goods;
• goods intended for the exercise of the profession, other than those intended for the operation of a holding forming part of the community of property;
•  property obtained as compensation for damage or pensions resulting from loss of working capacity;
• goods purchased at the price of transfer or exchange of personal property.

The Case Study

Two spouses resident and married in an extra European Unione Country, wanted to buy the full ownership of a property in Italy.

Their desire was to be present in person at the time of the notarial deed of purchase, but a very few days before the deed itself, one of my client was unable to leave for Italy.

So how to fulfill the desire of customers to both buy the property?

The matrimonial property regime of purchasers

First of all it was necessary to understand what was the property regime adopted by the purchasers.

Specifically, the law of the State in which they married and where they reside provides that, in the absence of any other declaration, the matrimonial property regime applicable to the spouses is that of the legal community of property.

Having verified that the spouses had not opted for different property regimes, neither in marriage, nor subsequently, it was possible to take as a reference this criterion so that even if only teh husband appears, the property would have been purchased by both.

The “Lex rei sitae”

According to the international private law in force in the State of California, moreover, with regard to the matrimonial property regime of the family, the principle of the “lex rei sitae” is applied. This principle expressly recalls the law in force in the place where the property to be purchased to be applied (rei sitae, indeed).

Conclusions

The affair ended with the purchase of the property by both of the spouses, even if only one of them was present at the notarial deed of sale in Italy.

In this matter of private international law it was necessary to carefully verify a series of information and documents, and to understand how the laws of different States could coordinate with each other.

It’s very important to remember that this type of analysis requires a lot of attention and needs to be done on a case by case basis.

Obviously is not always possible to apply the abovementioned solutions, and, it may happen that two or more different solutions are possible.

Therefore, a thorough study is always necessary, not only of the objective elements available, but also of the needs of the assisted customers.