Should a marriage celebrated by the head of an Italian consular office be considered celebrated in Italy or in the State where the consular office is established?*

Relevant rules

Art. 12 of the Legislative Decree of 3 February 2011 No 71, on the organization and functions of consular offices, confers upon the heads of the Italian consular offices the function of celebrating the marriage when the newly married couple, or one of them, possess Italian nationality. The celebration, as specified, “can be refused when contrary to the local rules or when the parties do not reside in the district”.

Various private international law rules confer importance on the place where the marriage is celebrated. Art. 28 of Law No 218, for instance, states that the marriage shall be considered valid, as regards its form, if it is considered as such “by the law of the place of celebration or by the domestic law of at least one of the spouses at the time of the celebration or by the law of the State of common residence in that moment “. Art. 32 of the same law (a rule that operates only under the conditions established by Art(s). 6 and 7 of Regulation (EC) No2201/2003, and in the future only under the conditions set out in Art.6 of Regulation (EU) 2019/1111) states that the Italian courts have jurisdiction in matters of nullity and annulment of marriage, as well as in matters of legal separation and divorce, – inter alia – when the marriage “was celebrated in Italy”.

The problem

When the reference of the aforementioned rules in relation to the so-called consular marriage arises, that is the one celebrated pursuant to Art. 12 of the Legislative Decree No 71/2011, there is the need to determine whether – for the purposes of these rules – the place of marriage shall be identified in the Italian legal order, because it is celebrated before an authority of the Italian Republic, or rather in the foreign State the office consular office at stake is established in (hereinafter, also the sending State, or the territorial State).

This issue does not seem to have a specific solution in the case law, not even in relation to the rules that governed consular marriage before the 2011 reform, namely Art. 10 of the Decree of the President of the Republic of 5 January 1967 No 200 and, before that, Art. 29 of the unitary consular law, enacted by Royal Decree of 28 January 1866.

Legal analysis

Art(s). 28 and 32 of Law No 218/1995 is to be interpreted in the sense that a consular marriage, for the purposes of the rules indicated above, shall be considered celebrated in Italy, not in the State where the consular representation is accredited in which the celebration took place.

The proposed solution starts from the consideration of the purposes of Art(s). 28 and 32 of Law No 218/1995. These rules aim, respectively, to identify the legal system on the basis of which the formal validity of the marriage is to be assessed, that is, the attitude of the same to determine the birth of the marriage ties, and to determine the scope of the Italian jurisdiction with respect to the claims aimed at challenging the valid constitution of the ties, at attenuating the juridical effects deriving from it or at provoking its dissolution. Therefore, it is reasonable to state that the rules at stake, in referring to the celebration of marriage, do not allude to marriage as a historical fact but to marriage as a constitutive act of the marriage ties referred to. For this reason, what matters for the purposes of the rules at stake is not so much the material place in which the marriage took place as a historical fact, but rather the legal framework the marriage ties arising referred to. Where the place and the legal framework do not coincide – as in the case of consular marriage, materially celebrated in a given State, but by the authorities of a different State and according to the rules of the related legal framework – the marriage that is relevant is not the material, but the legal one.

A different interpretation would, moreover, lead to results that are difficult to justify.

Let’s take Art. 28 of the Law No 218/1995. If, for its purposes, the material localization of marriage as a historical fact were valid, the valid constitution of the marriage ties should have to be appreciated on the basis of the rules in force in the accrediting foreign State: rules which, however, the head of the consular office, in charge of celebrating the marriage, is not required to apply and indeed shall not apply, in accordance with Art. 5, lett. f), of the Vienna Convention on Consular Relations of 24 April 1963. By adopting the opposing reasoning referred to, the assessment on the formal validity of the marriage would potentially end up depending on rules that neither the spouses nor the celebrating officer could reasonably take into account for application purposes.

The criticized legal reasoning would produce inappropriate, if not unreasonable, effects, also in relation to Art. 32 of the Law No 218/1995. If the refused interpretation were to be referred to, the Italian court could then be prevented from ruling on a marriage that the spouses evidently intended to bring back under the framework of Italian domestic law. Not infrequently, the choice of the consular arises from the difficulties that the married couple know, or represent, in encountering themselves for marrying before the authorities of the territorial State, according to the rules in force there. The interpretation set out, instead, allows the Italian court to deal with a marriage established according to Italian domestic law, with the intervention of the Italian authority: in this way the expectation of the spouses for the continuity of the subjective legal positions deriving from the marriage (or at least that one of them claims for) is strengthened.

Conclusion

Therefore, it seems correct to conclude that, for the purposes of Art(s). 28 and 32 of Law No 218/1995, the marriage celebrated by the head of an Italian consular office shall be considered celebrated in Italy, not in the State where the office is established.

Pietro Franzina

Note – This document is subject to the warning set out here.

* The English translation is provided for by the Aldricus Editorial Board; the original version by the author, in Italian, is available here.