Corte di Cassazione, judgment of 17 January 2017 n. 969
FACTS:
A Tunisian national made an application for Italian citizenship on the basis of her marriage to an Italian national. Following submission of her application for Italian citizenship she had then separated from her spouse. This was however a personal/de facto separation and not a judicial one.
ISSUES:
The First Tier Tribunal and the Court of Appeal both ruled stating that the Applicant was in possession of the required legal requisites for acquisition of Italian citizenship and had correctly applied ratione temporis (by reason of time) i.e. that the Applicant had remained married to an Italian citizen for 6 months following submission of the Italian citizenship application and there was no cancellation of the Applicant’s married status by way of annulment, judicial separation or divorce. The Ministero dell’Interno appealed against these rulings.
THE LAW:
The Applicant had met the legal requirements for the grant of Italian citizenship of Article 5 of Law no. 91/1992 i.e. that she had resided in Italy as a spouse of an Italian national for a period of 2 years and in that period there was no annulment, separation or divorce from the Italian spouse.
The Court of Appeal held that the conditions set out in light of the changes introduced by Law no. 94/1999 had to be considered acquired, since in the six months after the marriage no cancellation, separation or divorce had occurred. The State cannot legally add a de fatto separation to this list.
The decision in discussion was judgement n. 6526 of 2005 of Consiglio di Stato (Council of State) which expressly established that the condition for obtaining citizenship is not only marriage but also the establishment of a true conjugal relationship.
HELD:
Separazione di fatto (living apart but without legal separation) has no legal basis or significance in Italian citizenship law. The Court of Appeal decision was upheld by the Corte di Cassazione and the Applicant maintained her newly acquired Italian citizenship.
