The Italian administrative courts issued a controversial decision last week concerning the registration in Italy of same-sex marriages celebrated abroad, in particular whether such a union can lawfully be registered(1) in the Civil Registry office of the Anagrafe alongside all other marriages in Italy.
It was established in this decision, by the highest administrative court in Italy, that a registration of a same-sex marriage has no legal basis, is null and void and liable to be cancelled by the Prefettura.
This decision was the conclusion of an appeal brought by the Italian Home Office against the decision of the last Mayor of Rome Ignazio Marino in October 2014 to allow the registration in the Comune of Rome of a number of same-sex marriages celebrated abroad. The Council of State upheld the decision of the TAR administrative court, stating that marriage, under the definition of Italian law as set out in the Civil Code, could only be a union between two persons of the opposite sex. Same-sex marriage lacked that fundamental central element and could not therefore have the same legal effect. While the TAR had deemed the Prefettura to have no power to annul the registration stating this was a matter for the court, the Council of State disagreed and found that such power was legitimate.
Marino had not been the only Mayor to take this stand: in the Comune of Grosseto in 2014 the first same-sex marriage (celebrated in New York) was registered in Italy, and other Comuni had followed suit in “defying” Italian constitutional law by accepting requests for registration at the Civil Registry Office of the Anagrafe.
They relied on the private international law rules in place in Italy (Art. 28 of Law of 31st May 1995 n. 218) in which marriage is deemed to be considered “valid”, as to its form, if it is deemed to be so in the law of the country in which the marriage is celebrated, or according to the national law of at least one of the spouses.
The Italian government had then declared, in a Home Office Circular by the Minister Alfano in October 2014, that the registrations that were taking place were invalid and illegitimate, as in violation of Italian law.
Whilst the stance of the Italian government versus the actions of the Comune was clear, criticism from outside Italy grew this year leading to the European Court of Human Rights in July 2015 finding Italian law to be in breach of Article 8 of the European Convention on this point (CASE OF OLIARI AND OTHERS V ITALY). The applicants in these cases had brought cases in 2011, complaining that Italian legislation did not allow them to get married or enter into any other type of civil union and thus they were being discriminated against as a result of their sexual orientation.
The legal question of registration of overseas same-sex marriages is therefore settled, at least until the government amends the law, as suggested by the Consiglio di Stato, who said that its hands were tied by the wording of the definition of marriage, in particular the need to prove the existence of “husband and wife”, as enshrined in Italian law and culture, and that it therefore had no flexibility to come to any other decision.
(1) The term “registration” in this article refers to the procedure for “trascrizione” (meaning annotation) of the fact of a marriage, at the Anagrafe Registry situated within the Italian Comune where an applicant has declared they are resident. All Italian nationals who marry abroad, and non-Italian nationals who are resident in Italy, may choose to register their overseas marriage in Italy in order to be able to obtain a record of the marriage in Italy (including if applicable the chosen matrimonial property regime of comunione dei beni or separazione dei beni). D.P.R. of 3rd November 2000, n. 396 Article 64.
Registration at the Anagrafe is deemed as a declaration of the marriage but is not proof of the validity of the marriage itself, as such, but in practice is often a procedure requested by the Italian administrative authorities, such as the Immigration office or the family courts, who without this bureaucratic step often are reluctant to recognise the existence of the overseas marriage.
