In 2009, AGL, a dual Italian-Israeli citizen, and SRL, an Israeli citizen, married in Milan. The spouses, who were both Jews, married religiously.
Jewish religious marriages celebrated in Italy may be given effect in the Italian legal order provided that certain requirements, set forth in an understanding concluded between the Italian government and the Union of the Italian Jewish Communities, are met. The requirements in question basically refer to the marriage process. In particular, a notice of marriage must be filed with the local civil status office prior to celebration, in accordance with the Italian civil code.
In the circumstances, the prior notice and other requirements had not been complied with. As a result, the marriage of AGL and SRL was, from the standpoint of the Italian legal system, a purely religious one.
A few months later, the spouses – who always resided in Israel – seised the Rabbinical Court of Tel Aviv seeking a declaration that their marriage was valid.
Rabbinical Courts are part of the Israeli judiciary. They deal, inter alia, with matters concerning marriage and divorce, parental responsibility and succession. Their rulings have force in the legal system of Israel.
The Tel Aviv Rabbinical Court declared the marriage between AGL and SRL to be valid.
Next, the couple sought to have the Rabbinical Court judgment recognised in Italy. Based on the provisions of the Italian Statute on Private International Law concerning the (automatic) recognition of foreign judgments, they asked the civil status officer of Milan to record the judgment in the civil status registries, so that the marriage could be regarded as producing civil effects in Italy, as well.
The officer denied the request. He argued that the rules on the recognition of judgments had no role to play in the circumstances. At issue, in his view, was whether the marriage celebrated in Milan in 2009 ought to be given effect in Italy, not whether the Rabbinical Court’s judgment ought to be recognised. The latter, he contended, merely acknowledged that the marriage had taken place and that it had been performed in accordance with the relevant Jewish rules — two circumstances that were already known to Italian authorities and were, as such, uncontroversial.
In any case, the officer contended, the judgment given by the Tel Aviv Rabbinical Court ought to be denied effect in Italy on grounds of public policy. By seeking a judicial statement of the existence of their marriage, the spouses aimed in fact to evade the Italian provisions that determine the conditions subject to which a Jewish religious marriage may be given effect in the Italian legal system.
By a decision of 29 January 2020, the Court of Appeal of Milan, seised of the matter, ruled in favour of the couple.
The Court conceded that the marriage between AGL and SRL was initially, as a matter of Italian law, devoid of civil effects. However, as a result of the Tel Aviv judgment, the marriage had acquired civil effects in the legal system of Israel. Based on this finding, the Court of Appeal found that, contrary to the civil status officer’s opinion, what was at issue was indeed the recognition of the Rabbinical Court’s judgments, and of the civil effects it added to the marriage.
The Court went on to assess whether the conditions contemplated in the Italian Statute on Private International Law for the recognition of foreign judgments were met in the circumstances. It found that the Tel Aviv judgment complied all such conditions. In particular: the judgment originated from the country of residence and nationality of the spouses at the time when the Rabbinical Court was seised; it represented the outcome of fair proceedings; it did not contradict any previous Italian judgment.
Furthermore, the Court observed, the judgment could not be characterised as inconsistent with the ordre public of Italy. The public policy defence, it recalled, operates as an exception and can only be invoked where the recognition of a foreign judgment or the application of a foreign law would be at odds with the fundamental principles of the Italian legal order.
In the Court’s view, this did not occur in the circumstances. The non observance of the Italian rules on the marriage process does not amount, as such, to a violation of the public policy of Italy, as long as it is established that the spouses’ consent was expressed freely by each of them.
The Court noted that the fundamental principles of Italy would rather be challenged if the judgment were denied recognition. Article 8 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in Wagner v Luxembourg and other rulings, indicates that family status validly created abroad, insofar as they correspond to an established social reality, cannot be denied recognition unless very strong reasons require otherwise.
— Thanks to Marzia Ghigliazza, family lawyer and mediator in Milan, for drawing my attention to the ruling of the Court of Appeal.
A very interesting case. In principle and from a theoretical point of view, I would tend to agree with the court.
My only doubt comes from the behavior of the parties. Why did they marry in Italy? Let’s accept,for benign reasons, such as it was easier to gather the family there and have a huge party. But then comes the next question: why would they care about the recognition of the marriage in Italy and go through all these troubles if their life is really in Israel? And if it is not, then the ECtHR did not exclude denying recognition to foreign judgments on the ground of evasion of the law…
The Court of Appeal did non inquire into the reasons behind the choice of the the couple to marry in Italy. The Court’s lack of interest in this aspect is a bit disappointing since the issue of evasion had been raised in the proceedings. One could speculate that the Court was satisfied that the situation had at least some genuine ties with Italy (the husband being a dual Italian-Israeli national), and that – as stated in the Court’s reasoning – a family status created abroad, one grown into social reality, should not be denied recognition unless evidence is provided that there are very good reasons to do so. As to the benefits of having the Tel Aviv judgment recognised in Italy, I guess one such benefit is the opportunity for the wife to rely on the (civil effects of the) marriage to acquire the Italian nationality. On a general note, only rarely have Italian courts discussed the issue of evasion of law in the framework of private international law. Unlike other domestic codifications (eg, the 2004 Belgian Code of PIL), the Italian PIL Statute fails to address the issue of evasion expressly.
If my understanding of the case is correct, the issue here concerns the formal validity of the marriage concluded in Italy which needed to respect some formalities prescribed by Italian law. However, as far as formal validity of the Italian marriage is concerned, and in application of Art. 28 of the Italian PIL Act, “marriage shall be valid, if it is considered valid […] under the national law of at least one spouse as in force at the time when the marriage was celebrated or under the law of the State where both spouses were resident at that time”. This seems to be the case since both parties are holders of the Israeli nationality and resident in Israel. If I am not mistaken, Art. 28 applies also when the marriage is concluded in Italy.
I understand that the issue was treated as a question of recognition since the parties invoked the Israeli judgment validating the marriage, but the result would not have been different if the validity of the marriage were examined in application of the Italian conflicts rules.
Thank you for your comments. My impression is that Article 28 of the Italian PIL Statute, on the law applicable to the formal validity of marriage, had no role to play in the case at hand. The understanding referred to in the post, concluded between the Italian government and the Union of the Jewish Communities of Italy, was transformed into legislation by the Italian Parliament under Law No 101 of 1989. Article 14 of the Law sets forth the conditions (relating to the marriage process) subject to which Jewish religious marriages celebrated in Italy are to produce civil effects in Italy. This substantive rule is arguably a lex specialis, and takes priority over conflict-of-laws provisions. Against this backdrop, it is of little practical importance (but still interesting in theory, I guess) to determine whether the issue submitted to the Court of Appeal implied, potentially, an assessment of the law applicable to the marriage and its formalities, notably for the purposes of Article 65 of the PIL Statute (a provision that the Court fails to consider in its reasoning), and, in the affirmative, how that assessment ought to be carried out.
Thank you for your clarifications.
What I wanted to say is that in the absence of the Israeli judgment the question of validity of the marriage were brought before the court should be examined from choice of law point of view and the result would not be different in application of the Italian conflicts rule.
I understand that the law No. 101 of 1989 would be considered as lex specialis, but I assume it would be considered as such with respect to the Civil Code and not to the Italian PIL Act. In such a situation, and in order to determine whether that law applies, a detour by the choice of law rule would be necessary. In my understanding, the law no 101 is about the request of nihol obstat to the civil status officer so that the marriage can be celebrated in the religious form before its transcription. This is generally considered as issue relating to the formal validity of the marriage subject to article 28 of the Italian PIL Act. Then, since at least the wife is Israeli national, and if her national law allows marriage under certain form, than the marriage would be regarded as valid if it conforms with requirements of her national law.
Now, the fact that a judgment validating the marriage was issued by an Israeli court, the choice of law approach becomes irrelevant and the question to be answered is whether the judgment can be recognized or not. But since the marriage can be considered as valid following the choice of law approach, there is little interests to refuse to recognize the Israeli judgment which leads to the same result.