G. Alpa, Prawo - książki
[ Pobierz całość w formacie PDF ]
The University
of
Texas
atAustin
Studies
in
Foreign
and
Transnational
Law
General
Editors; Sir Basil Markesinis and
Dr
.[rg
Fedtkc
The
UT
Studies
in Foreign and Transnational
Law
Series aims
to publish
books covering
various
aspect
of
foreign, private,
criminal
ancl public
law,
as
well as transnational
law.
This
broad
ambition
of
the
eries
underlines the
ditors' belief
that
in
a shrinking
world
there
is a growing
need
to
expand
our
knowledge
of
othet legal
orders
-
natina] or
supranational
-
and to
publish
books
discussing comparative
rnethodology
and not merely describing
foIeign
ystems.
|TAL|AN
PR|VATE
LAw
Guido
Alpa
and
Vincenzo
Zeno-Zencovich
'|'it
lt,s
in
rhc
scrics:
'l'lx,
llrauch
Ciuil
Cod.e
,|,-l,.
lllprin,
transl, T.
Weir
,|udic:ial
Recourse to Foreign
Law:
A
New Source
of
lnspiration?
Sir B.
Markesinis
and
J.
Fedtke
Interkationl
Negotiation in
the
Tfuefity-Fifst
Centuty
A. Plantey,
transl.
F,
Meadows
Forthcoming titles:
Human
Rights
in
the
Priuate Spbere
D,
Oliver
and
J.
Fedtke
(eds)
(2007)
The Protection of
Human
Rigbts
in
German
and
English
Law
J.
Fedtke
and
M. O'Cinneide
(2008)
}
Routledoe.Cavendish
\
taylor
a
rranciroup
l
The
Family
and
Succession
I
V
and
State, religious education
in
schools
and
the position of
members
of
..iig,
.ra"i,
vis-i-vis
the
Stat, but
has
left
relatively
untouched
the
"rg"^"rrr,
in
the
Concordat
concerning
marriage
apart
from
certain
Th"
ramity ana Succession
I
]
the
material
needs
directly
cofrmensulate
with
the
social
position
of
the
obligor and his standard
of
living;
unlike
the
obligation relating
to
material upPolt,
need
is left
out of consideration, excePt that
the
ability
of
the
recipient to provide
for his own
needs
is taken
int account.
chang-es
in registration
procedure and
the rules on
voidness,
T;he
preconditions
of
civil
marriage
are as
follows,
3.5.
Weddings.Types
of
marriage
In
common
parlance, but
also in legal
language, marriage
can
denote
either
the uedding
ceremony
oI
th reldtioship
it
gives
rise
to,
anticipated to last
until
the death
of one
of
the spouses,
or
until
divorce.
Marriage by its
very nature
is
the
personal
relationship
par
excellence,
characterised
by the utmost
pefsonal freedom
in
that
nothing short
of
or
beyond
the
will to
enter
into
matrimony
is
sufficient
to
bind
an
individual to it.
_
_Matrimony
is a bilateral legal
transction, wlth its own rules
lelating
both to capacity
and to voidness
and voidability, and its
own procedules.
Rules on
marriage vary
according to
the rype
of wedding,
which
can
be either
civil
or religious.
Religious marriage
in
turn can be carried
out
according
to
Roman Catholic rites
or
a
othef form
of
observance.
Catholic marriage produces
civil consequences
(the
same ones as
produced
by
civil
marriage)
pufsuant to the
Concordat between Italy
"rrdih"
Holy
la\
ae:
th
paTtners
must have
attained majority,
but the
court
upon
'-'
"i"rnin"rion
of
the mental
and
physical maturity
of
the applicant,
".J
.i
a,.
grounds
for
the
application,
and having
heard
submissions
f."om
the
p.ose.,,tor,
parent
or
guardian,
may
in
exceptional
circumstances
authorise a
person not
less
than
16
years
of
age
to marry
(Art
84
civil
code);
(b)
natiral
capuci;,
persons
cannot
marry
if
they are under.a
disability
'-'
by
r."ror,
of
,*nial
illness and
uch
incapacity
a seen
above leults
automatically
in
the marriage being
void.
|c|
unmatied,
sutus:
a pelson
who
is already married
may not
contract
anoel
marriage. This
applies only
ro a
previous
civil
mafriage.or
one
with
civil
legal
consequences.
Any
purely
religious
marriage which
has
not
been
ci;i[y
legistrd does not
pleclude
rhe
celebration.ot
a
new
marriage.
as
it
is
wirhour
effect
as regards
the
kalian_Iegal
order;
(d)
abseni
of impediment
arislng from
relatedness, affinity
or adoprion
(Art
87
civil
code);
|e)
ibser"e
of
offence
(committed
or
attempted
by
one
partner
at the
other's
expense);
tll
."pi.y
oi
any'period
of
u,,idolu's
moutni,ttg
(which
lasts
300
_days
See
dated
11
February 1929,
now
replaced
by
the
concordat
of 1984.
3.5.1.
Civil weddings
Civil
weddings
were introduced
under the influence
of
the
French
tradition
as recently
as
the
beginning
of
the nineteenth
centurn
when
religious
marriage
in
France
was
downgraded
with
the creation
of
the
secular
state.
A
new
form
of wedding was invented,
carried out before
a
registrar
(usually
the
mayor
of
a
pelson delegated
by him).
This situation
was
followed
in ltaly
also,
from
its
unification
in
1860
until
the
signing
'
'
t
o-
tt" d"ait
of the
previous husband,
to
eliminate
the posibility
that the bride
might
live
birth
to
a child
of
uncertain
paterniry
(Arr
89
civil
code));
(g)
iinally,
the
partnels must
be
of
opposite sexes
(if
not,
the
maftia8e
l
without
effect).
The
celebration
of a
wedding
mut
be
preceded
by
a
public
"nrro"-"na
issued
by
the
regisirar.
A
notice must
be displayed
at
the
of
the
Concordat
it
1929l
th
principle
of
the eparation
of church and
State
was observed, and
there were accordingly
two
forms
of
marriage
ceremony, one before a registrar
which
produced
consequences governed
by
the Italian legal
order, and another
for
those
who
chose
it
before
a
priest,
to
give
expression
to
reli8ious sentiments
and
to
produce
consequences
in ecclesiastical law.
The Concordat gave
rise to
a'hybrid':
church weddings celebrated by
a
catholic
priest were privileged
in that
once
they were entered
in civil
records they produced
civil
legal consequences.
Law
no. 1I5
ol7929
laid,
down that marriages
carried out according to non-Roman
religious rites
were equal
in
status
to civil
marriages,
apalt ffom
the different
form
of
celebration,
Law
no.
12l ot
1985
has
ratified the nevi
Concordat and has
innovated abov
all in
terms
of
the
economic relations between
church
i.*"
i"rr
for
eight
day
stating the nam""
of the
partners,
their
ages
and
the
place where
the
wedding
is to
take
place,
rch
aotoun
em"n
is
necessary
to
give notice
of
the wedding
to
whoever
might
wish to
raise objections
to
its taking
place,
Objections
may be
raisJd
on
the
grounds set out above
by
parent, relations up to
,i"'at l.a
a"gr"",
"nd
aiy
existing spouse of
one of the
partners,
Notice
of
olj"",ion ,irp".ra,
the celebration
of
the
ceremony
until
a
judgment
permits it to
proceed
(futs
102 and 104 civil
code),
'
Th"
....-orry
take. plac" in
public in
the
town
hall in
front.of
the
registrar;
it
may
also be carried
out
by
way
oI
manddte
(for
soldiers
in
*irii
"ra
r"i
"*rseas
residents).
The mandate
must
be
in
the form
of
The
Family and
Succession
l
reaching the
necesary
agreements
and
put the matter
before the court to
make
a
declaration
of
sepatation.
6|
I
I
The
Family
and Succession
spouses
who, in
embarking
on
a
life
together
with
common intent,
love
and aifecrion,
create
a
kind of
spiritual and
macerial
communion
thar is
unique.
It
should
not, howeveg be supposed
at
the
law with
its rules
breaches
the rampart
of
the
family only
in
response
to
dysfunction:
a
breakdown in
the
community
of living
or
disappointed affection. The
thorough social
reform brought
about
by law
no. 151
of
1975
has
already made important
contributions to the
efforts of
those
who
would
seek changes
in
social
habits and
prevailing
attitude: the
position
of
women
in
society
has
been
re-evaluated as
a
direct consequence
of
the
change
in
their
poition
in
the family, as
wife and mother. The parity
of
spouses
is
proclaimed
in Art
143
of
the
civil
code:
.in
matrimony
husband and
wife acquire
e
same
rights and
assume
the
same
duties.'
The
duties
deriving from
marriage are reciprocal;
fidelity,
matetial
nd
noral
support,
co-operution
ilt
the family'
interet,
and
cohabitation. The moral
and
legal
equality
of
spouses is made plain
also
by the fact that they have
equal
reponsibility
for
the running
of
the
family: 'both
spouses
must, each
according to his or her means
and their
ability for
professional
work or housewotk, contribute to
the family'
needs'
(Art
143(2)
civil
code).
Marriage
entails
various
duties towards
children,
of
a
moral
natur
(uch
as
to
intruct
and
educate)
and
of a material nature
(help
and
maintenance).
Both
spoues
must
provide
for
these needs
according to
their
respective
capabilities.
In
default,
the
responsibility
devolves onto
ascendants,
both legitimate and
natural.
^'"*-i.p".u,ior,
-"y
Ue
re'quested
when, with
or without.the
approval,o,f one
o,
.poor"r,
it
is
.sct
ind
that th situation
makes
continued living
iog"tt
",
int"t
rl",
or
poses
a
serious
risk
to the
education
of the
children,
3..3.
Divorce
Divorce
(introduced
by law
no.
898
of
1
December
1970 and
amended
il
;
;.r.
436 of
i
August
1978 at 474
of 6 March
1987)
can
be
piun..a
only
in
certain
cases
exhaustively
listed
by statute:
(a)
when
i".
"i
rrr"
"poo.",
h",
been sentenced
to
life
imprisonment
or
been
"oiui"t"a
of
"
r"rious
offence
against the family;
(b)
when the
pouse has
i..,
".q"i
,.a
of such
an offenie
by reason of mental
incapacity,
but lhe
iudge
has
ruled that the
spoue
so
acquifted_is
not fit.ro
maintain
or
i"iiira
.
communal
famiiy life;
(c)
when
there has
been
a
judicial
,"o".",i.",
or
a
separation
by
conent
ratified by
the
couft
(but
in
the
i"i,.i *r",
the separation
must
have continued
in
effect
for
three
years
i";;
"
ratif;adon
and the
issue
of divolce
proceedings);
(d)
when
i"
o,h.,
,poor",
being
a foreign
citizen,
has
obtained
an annulment
or
J-irr.r*i."
"t
ttte
mariiage abioad, or
has
remarried
abroad;
(e)
when
the marriage
has
not
been
consummated
(Art
3),
Person"al
relations
between
ex-spouses
are
regulated
in a
manner
different from
those
b"twe"n
sepurat"d couples,
because
the marriagc
has
been
dissolved,
The
ex-spouse
continue,
however, to
have duties
relating
to
the
matrimonial
property
and
the
children,
3.6,2. Sepamtion
The marriage 'contract'
i
telminated by either the death
of
one
or
othet
of the
pouses
ot
by diuorce. \Vhen th marriage
relationship, that is,
e
common material
and spiritual
life,
runs
into difficulties
or
becomes
intolerable, the
spoues
have
the option
of
separating. It
is
only
through
divorce, however, that the problems encountered
in
the relationship lead
to
the legal
consequence
of
severing
the
'contfactual'
aspects
of
the
marriage.
Personal
separation may
be
of three kinds. It
is
(a|
de
facto
wbel
tbe
spouses
have decided
to
try living
apaft,
but this
is
an
informal
arrangement
with no
legal
significance,
provided
they continue
to
discharge
their
marital obligations
and
do not without
good
cause
put
too much distance between
themselves and the
family
residence
(Art
146
civil
code). It
is
(b)
consensual
uhen
the
spoases
take a
ioint
decision to
live apart
and make
alrangements concerning rhe
care
of
the children,
property
and
the
family
home. Separation
by
consent
has
no
legal
conequences
unless it is
ratified by a court, that is, approved by
a
judge
(Art
158
civil
code). It
is
(c)
judicial
whel
e
spouses
do not succeed
in
3..4,
ludiciol
intervention
in
other
family'crises'
Separation
and
divorce
are
extleme
remedies
in
response
to
the
lr!"r.a.-"
"r
."^-unal
life between
the
spouses,
When this breakdown
o.",r..
in
,t.
spiritual
unity
of
the family, and
the
affection ar.d
co.nsefit
that
cement
the
union
are
no
longer
present,
the!
is no
alternative
to
Jirroluing
th"
bond, through
divorce, or
loosening
it through
se.paration,
----
o.h".ontti.t,
can
be described
as irremediable,
but not
all
conflicts
call for
such extreme
measufes.
Th"
r"formirrg
legislation
anticipatd
such
cilcumstances
and
"fal
j
d,icial
iiteruention,
as
in
the
cas of
;i;;;*,
ou".
"
p1"..
ot
resid,ence
(Art
145(2)
civil
code),
In other
p-riJ"a
-
^.-.ain'sy
;;;'h;r.
requested
by both spouses,
the
judge
wiII'atrempr to
find
"
solution
by co.rsent' after
having listened
ro the children,
Thc
judge
can
i"i"rr.^"
""'
only
to
resolve disputes
concerning tbe
basic affairs
of
the
il-ily,
U",
also
to
protect the children,
in
cases
where
the_
parents
"-"..ing
authority ;ver
the
childrn
are
in
dispute,
Where there
is
a
l
The
Familv and
succession
I
dispute
on
an issue of particular
importance, either spouse may 'make an
informal approach to the
iudge
to indicate
the
provisions
he
or
she
would
regard
as
most suitable'.
The
judge,'having
heard both
parents
and any
children over
14
years
of
age, shall
suggest
the solution which
he
considers best serves the
interet
of
the children and
the
family
unit.
If
the dispute
is not
thereby resolved, the
judge
shall
grant the power
to
make the decision to whichever spouse he
considers most suitable
in
the
current
instance
to look
after the children's
interests' (Art 316
civil
code).
The
Family
and
Succession
I
Ol
Both
spouses
administef
the
joint
property
separately,
Acts
of
disposition, however,
require
them
to
act
jointly.
Therefore,
selling
or
acquiring
joint property requires
the
consent
of
both
(Art
180
civil
code);
if
conserrt is
lacki.rg and
the
transaction
nonetheless takes
place,
it
is
voidable,
but
any action
f;!
nullity
must
be
taken within
the very short
time
limit
of
one year
(Art
184
civil
code).
The
spouse
who
intnds
to
undertake
the
transaction ma1 howeveq
seek
the
auorisation
of
a
judge
if
it
is necessary
to the interests of the
family
or
of an
enterprise
(fut
181
civil
code),
The
regime
of
personal separation
gives
the
judge
the
task
of
establishinl
which of
the
spouses
shall
have
the duty to maintain
the
other,
if
thi
latter lacks
adequate mans of
his or her
own
(Art
156
civil
code).
In
divorce,
new provisions,
introduced
by law
no.
436
of
1978,
bring
the
position
of ex-spouses closer
to that of
eparated spouses,
joint
ownership
of
property
is
not
binding
on
the
spoue, but
op"i.te.
by
default.
If no
declaration
to
the
contrary is made when
the
marriage
is celebrated,
it
is
assumed that they have
chosen community
Ploperty.
They can,
however,
opt later on
for
a
regime
of
seprate
estates
-
ihi,
-..
th"
regime
in
force
before the reform
-
by
which
each
spouse
retains
exclusivi
title
to
goods acquired during
the mafriage
and as sole
owner
has therefore
the sole
right to
manage th
property
in
question
(Art
215
civil
code). When
a
couple
separate
for
reasons
of
disqualification
or
incapacity
ol
because
property held
in
common
ownership
has
been
managed
badly,
a
regime
of
separate
estates
supersedes
the
community
property
regime.
3.7.
Property
relations
between
pouses
3.7.1.
/oint
estotes
lt
has been said
of
the evolution
in
property relations between spouses
over the centufies
that from
being of the nature
of
a
propefty
agreement,
such
as
one might have sealed and notarised, marriage has developed
into
a
lifetime
community
of
interet,
both material and spiritual.
The
propelty
dimension also draws inspiration from constitutional principles:
legal and
moral
equality,
which in
property
telms
mean
equal duties
and
responsibilities, along with equal rights.
To
ensure
equality
(Art
29
Constitution,
but
also
for
the benefit
of
the individual
within
the
familn
Art
2)
the reform introduced
the
principle
of community property,
derived from
the
existing
legal
form
of
joint
estates.
All
properties
acquired during the marriage,
whether
togethef or separately, belong
jointly
to both
spouses. Rents and revenues
therefrom
are
also owned
in
common,
as
well
as
enterprises run by
both
spouses
(At
177
civil
code). The proceeds
of activities
undertaken
by
the
spouses
separately
flom
each other
-
for
example wages and salaries
-
become common only at
the
moment when
the
joint
estate is
severed,
and
the
residue,
that
is,
whatever remains
from
such
earnings,
is
divided
between
the
spouses.
This
does
not
mean
that
each spouse
is
free
to
spend separate
income without
giving
thought to the needs and
interet
of
the
family
(Art
177c
civil
code)
Personal
effects as
defined below are excluded
from
the
ioint
estate
by
fut
179
civil
code:
r
property acquired by the spouse before the marriage;
.
property
acquired
also
after the marriage
by
gift
or
ucceion on
death;
.
goods of strictly personal
use
(for example, clothes and
jewellery);
.
goods
which
serve the exercise
of
a profession (for example,
books
and instruments);
.
money obtained in the form of
damages;
.
money obtained
from
the sale
of prsonal
effects.
3.7,2. Community
prcperty
by
agreement
If the
spouses agree
to modify
the
plovision of
the
joint
estate
regimeJ
they may do so and
thereby
enter
into
a regime
of
community
property
by
agreemeu. They cannot,
however,
exclude the rules on administration
oi property
nol
the requirement for
equal shares
(Art
210
civil
code),
-
To
allocate
partic;br
resources exclusively to
the family's
needs,
the
spouses, or
one of them, or
a
third
party may
set
up
a
trut
fund_
(Art
167
civil
code). The funds
are thus tied: feynues
must be used
only for
the
family's
needs, the management
of
the funds is carried
out according to
joint
estate rules, disposal
of
part
of
the
funds requires the consent
of
to
.porrse.
"nd
also, if
there
are
children,
the
authorisation
of the court
(Arts 167ff
civil
code).
3.8. Legitimate issue
3.8.I.
Princles of
issue
Among the
changes
produced by
the reform
of
family
law
are
many
i.r.rorro.s
in
the position
of
minors
within
the family.
These have had
a
'egitimdte
[ Pobierz całość w formacie PDF ]