Marriage Laws: Italy and Great Britain

Issues

The issues, which have been indentified from the given facts, may be summarized as follows:

• Whether the said marriage between Romeo and Juliet is legal under Veronian Law
   
• Whether the said marriage between Romeo and Juliet legal under English Law?
   
• Are Romeo’s parents legally permitted to take Romeo to Verona to consummate the said marriage between Romeo and Juliet?

Relevant legal principles and Case laws

The relevant Acts of different legislations that will govern the above-mentioned case are as follows:

The state of Verona is a part of Italy. Thus, the Italian law will apply at Verona. The Italian marriage law is as follows:

Different Articles in the Civil Code of Italy govern the Italian marriage. According to this Code, Italy governs and regulates three types of marriages. They are as follows:

• Civil Marriages – Civil marriages are marriages, which are conducted by a civil registrar when a couple comes to the same and shows their intention to marry each other along with two witnesses.
   
• Concordat marriage – Concordat marriages are one which is regulated and conducted by the Catholic rituals
   
• Marriage by minister of non-Catholic faith – This marriage is described under Article 83 of the Civil Code in Italy.

According to Article 116 of the Civil Code, non-residents and  residents are allowed to marry. This Article makes marriages valid if some conditions are fulfilled.

The limitation of the Civil Code along with their respective Articles is as follows:

No person of mental disability can contract a valid marriage. This is covered under Article 85

No person already marriage without taking a prior divorce can get into a valid marriage. This is covered under Article 86

There cannot be any legally valid marriage between direct line siblings and person connected by affinity. This is covered under Article 87

No legal marriage can be conducted when one spouse has murdered or attempted to murder the spouse of person he/ she intending to marry. This is covered under Article 88

In Italy, Article 23 provides that marriage is valid, if it is according to one of the following:                            

• The law of place where marriage is conducted
   
• The law of country of at least one spouse’s nationality at the time of marriage
   
• The law of state where the couple will resident together as a married couple.

Italy strictly is against marriages that are against public policy like child marriage, etc. Such marriages are not allowed to be registered.

Italy has a law that restricts a widowed or a divorced women to remarry again for 300 days from her husband’s death or divorce. This is apparently to avoid conflicts of paternity issues in case the woman  is pregnant. This forms a legal requirement for marriage in case of widowed or divorced women.

In addition, if one is remarrying, their previous marriage certificate is needed to be submitted to the registrar. In case of widowed people, one needs to submit previous marriage certificate along with the death certificate of the deceased spouse.

The people intending to marry have to submit an application at the consulate under whose jurisdiction the people intending to marry reside. This is the first step after having all the required documents in place. Once the same is submitted and process to get Nulla Osta can be initiated.

The most important document to marry in Italy is the Nulla Osta which is No Impediment certificate issued by the Embassy of the country of the person intending to marry in Italy. This Nulla Osta is written in Italian and is valid for just six months. This certificate is to show that there is no obstruction or hindrance in doing the job it’s assigned for. Thus, in the said case, it shows there is no obstruction in marriage of the parties obtaining it.

The next requirement is of two witnesses who are above 18 (eighteen) years of age. The wedding ceremony in Italy is conducted in Italian so if one is a foreign national, he will need an interpreter atleast two days prior to the ceremony. In addition, there is a verbal declaration at the place where the marriage is conducted two days prior to marriage stating that the said couple will be getting married and the documents are checked accordingly and it is confirmed that there is no impediment to the marriage according to Italian law. The date for the same will be mentioned at the time you book the venue and the couple needs to be present for the same for document verification personally.

After all this requirements are fulfilled, a valid Italian wedding is solemnized. However, this is valid only if both the people marrying are of the same nationality that is Italian. The formalities and the requirement, somewhat, change when a Italian is marrying someone of foreign nationality.

There is a step-to-step guide to all requirements needed to solemnize a marriage in Italy

Application to be submitted at Consulate

The first step to be taken if one wants to marry in Italy is to submit an application at the Italian Consulate. The same needs to be signed by both the parties intending to marry along with the list of all  the documents that prove their identity. A photograph also needs to be attached with this application. This application can be submitted personally or via email, fax or post.

There are certain cases in which the consulate can reject the application. For example, the people applying do not reside under the jurisdiction of the consulate they have applied to. However, if the consulate accepts the application, the parties application can request the consulate to post or publish their banns

Publishing Banns

Publishing banns is a legal necessity in Italy before one can  marry. These  banns are published by the local civil registrar. The life span of such banns is 6 (six) months after which one will need to re apply for all the paper formalities un case the applicants is still not married. The basic rule is that one can marry from the 4th days until the ending of the 180th day from the date the Bann is published by the local civil registrar.

In case the applicant cannot personally go to ask for their banns to be published , a third party can do the same for them, but a written application will be required for the same. This need not have photograph attached to it.

Application to marry in the Consulate

This step is the list that shows how the bann’s need to be posted as applying to marry is the initial step after which the bann’s are posed according to the residence of the applicant.

If the applicants are both Italians, loving abroad, the bann’s needs to be posted at the Consulate where both of the applicant reside. Incase they residence at different consulate, the bann’s needs to be publish at both of the Consulates.

If the Italian national or a foreign national is living in Italy and the other is settles abroad, the bann’s needs to be published at the venue of the marriage.

If both the applicant s are Italian, then bann’s need to be posted at the consulate where the applicants reside. In case its under two different consulate, the bann’s needs to be applied at both the Consulates

Marriage in Italy

Once the bann’s are published, the consulate will authorize the concern person to perform the marriage. Publishing bann’s only means being sure, that no one is against the applicants to marry and no one is wanting to bann is the marriage. Documents that one needs to apply for bann’s to be published are as follows:

• All Identity documentation
• In case, applicant cannot go in person, a written application delegation to do the same to a third person.

It is necessary for an Italian marrying abroad, to send at the local consulate, the original marriage certificate issues by the respective foreign registrar. The same must be notarized and then kept in records with the Italian Registrar office as a record.

To consider the present case, it is important to implement the Italian law on how it regulates if the marriage is between an Italian and  a British national.

If one is not an Italian but wants to marry in Italy, Nulla Osta which is a No Impediment Certificate needs to be submitted. The same needs to be translated in Italian and then notarized. It is also important to submitted an application stating that the person marrying in Italy is legally capable of marriage.

A step-to-step guide on all requirements needed for marriage of an Italian and a British in Italy

From 1st March, 2013, the requirements for a British to marry in Italy have changed. They are as follows:

No-Impediment Certificate.

A no-Impediment Certificate needs to be issued by the local registrar in the United Kingdom. The same needs to be given by the local registrar authority. The same then needs to be submitted in Italy at the Consulate’s office. It is very necessary that the name on the certificated issued in United Kingdom should totally match with the applicant’s name on his/ her passport. In case it does not, high chance Italian consulate may reject the marriage application form.

Declaration before Solicitor

After applying for the No-Impediment certificate, it is necessary to make an declaration before a solicitor. This declaration is needed by the Italian consulate to give information that the No-Impediment Certificate does not provide. The solicitor will charge a fee to make such a declaration on.

Documents to be legalized for Italian Consulate

When you have a No-Impediment Certificate in place along with a declaration from solicitor, both these documents need to be send to the FCO (Foreign and Commonwealth Office). The FCO legalizes the documents and charges some fee for the same, which needs to be paid. The same can be paid from their official site. For more information, the Foreign and Commonwealth website can be visited.

Translating Certificate

The No-Impediment certificate needs to be in Italian always as per the Italian marriage law. Thus, after the No-Impediment certificate and solicitors certificate is legalized, the No-Impediment certificated needs to be translated.. For a marriage to take place in Italy, the same needs to become an Italian document and the same needs to be eligible to be produce in Italian Courts. The translator will charge some fee to do the same.

The solicitor’s declaration need not be translated into Italian.

Thus an U.K nations needs No-Impediment certificate, translated in Italian and issues in United Kingdom, Solicitors Declaration and a Passport to be finally submitted at the venue of the marriage, two days before the marriage date and the applicant be personally resent for documents verification. It is to be noted that the validity of the no-Impediment certificate is not more that 6 (six) months.

It is also necessary to note that a woman under Italian  law who is either a divorcee or a widow cannot marry for 300 days from the date of the divorce or from the date of her husband’s demise. Thus, this needs to be kept in mind before applying for No-Impediment certificate incase a British is marrying a divorcee or a Widowed Italian woman.

Marriage in Britain:

In England and Wales, marriage is recognized legally in civil laws and the religious unions. A marriage can be solemnized between a couple of opposite-sex or same-sex. Marriage laws in England and Wales evolved historically from the other jurisdictions’ of marriage laws of the United Kingdom. In England, religious marriage and civil marriage is different, where an authorized religious authority conducts the first and the later conducted by the state register.

Who can get married?

For marriage, one has to give formal notice of their wish for getting married at the office of local register. This rule came into force from 13th March, 2014. A civil ceremony can organize for same sex couple, which is, legalize in the England and Wales from 29th March, 2014. The marriage of same sex couples may be possible in the religious ritual in case the particular religious organization approved with such couples marriage. However, marriage of same sex couple cannot be solemnized in a Church of England or Wales.

From 16th December, 2014, Scotland allowed the same sex marriage. Any formal notice of marriage is not necessary to be given by the same sex couple in Scotland. 14 days clear notice is must for the marriage of the couple and it must be given. Whereas, in Northern Ireland, same sex marriage is not valid. However, the couple of same sex who are married in the England, are treated as the civil partners in Northern Ireland.

In England and Wales, Same sex couple who got married under any foreign law, are recognized as married. All the couples can be married if they are both 16 years or more, single, divorced or widowed, or if the couple being in the civil partnership, then that should be dissolved.

Who cannot get married

When one person wish to get married in the age of 16 or 17 years, they cannot get married without the parental consent.  In certain circumstances, people other than the parents may offer consent as of the parents. In Northern Ireland, any party under 18 have no right to marry without the permission of some  people.

Relatives who can not marry

Marriage is not permitted in between some relatives. If those relatives marry to each other, the marriage will become void automatically even if they are not aware of the fact that they related to each other in such a way. A person in England and Wales are not allowed to marry the following relatives:

• a child of one, which included an adopted child
• one of the parent, including the adoptive parent
• sister or brother, including any half-sister or half-brother
• sister or brother of parents, including the half-sister or half-brother
• grandchild
• a grandparent
• a child of sister's or brother's, which included the half-sister's or half-brother's.

The genetic grandparents and parents are not permitted to get married with the adopted children. If they perform marriage, the marriage will be null and void automatically. This rule is applicable even if the person does not know about their relations. The adopted children are not permitted to marry with adoptive parents, but they are permitted to marry the other members of the adoptive family, which included their adoptive sister or brother. In certain circumstances, people in the in-laws or step relations, may be able to marry.

Getting engaged

Engagement is generally for the cultural motives and has a limited status. Engagements can be used, as an evidence of their intention to get married in the immigration law.

Engagement is not used as the agreement of marriage and cannot be legally enforced. If the engagement broke, a woman is able to keep the ring of engagement unless, she gave it at the time of break up. At the time of engagement, the man should specifically mention that the ring might be returned if engagement be broken. The other properties, which belong to couple, must be distributed between both of them in equal proportion as the property might be divided in case of divorce.

Pre-nuptial and post-nuptial agreements

First is a contract, which is entered between the parties before their marriage, which states the wish of the couple to divide their property and money in case they get divorce. The later agreement is same as before, but signed after the marriage. These two agreements are legally binding till the Court consider it unfair.

Where can a marriage take place

If the religious organization permitted wedding of same sex, and the premises is registered for the same-sex marriage, then only same sex couples marry following the religious rituals. Same sex couples are not permitted to marry in the Church of England or Wales.

A marriage may be solemnized in:

• Register Office
• local authority approved premises such as hotel
• a Church of England, Church of Ireland, Church in Wales, Roman Catholic or Presbyterian Church in N. Ireland (opposite sex couples only)
• any private place like synagogue if the partners are Jewish
• a Meeting House in case the partners either members of the Society of Friends (Quakers) or associated with any of the Society by attending the meetings
• any religious building which is registered (England and Wales only)
• any home or place where one of the partners may be housebound or detained, e.g., in the prison
• a hospital as one of the partners is seriously ill and is not expected to recover
• a licensed air force, naval or military chapel.

Civil marriage ceremonies

Giving notice

Persons who want to get married must give notice of marriage in the local Register Office, in spite of the fact that one wishes to marry in that particular district. In Northern Ireland, the register or the Superintendent Register then issue the authority for marriage. After that, one may get married in any of the Register Office or any local authority permitted premises in any of the district.

28 days of notice should be given to Office of Register before solemnization of the marriage. The partners, before giving the notice of marriage, must be the resident in England or Wales at-least for seven days. In notice, one must mention where the marriage will take place. They have to pay the fee for giving notice.

Procedure for civil marriage

Some definite information needed to submit when one gives the notice for marriage as the objective to marry. Any false information given by one person in this regard is criminal offence. The information which is required as follows:

• evidence of the address and name
• evidence for date of birth
• in case one of the partner was married previously or was in the civil partnership with other person, the documentary evidence that shows the marriage or the civil partnership has broken, e.g., a decree absolute or a death certificate. Photocopies of such documents which are uncertified are not accepted. The court which has decided the divorce of one partner should give the certified copy of the decree absolute which can be taken about a week
• the evidence of the nationality.

Multiple documents may be shown as the evidence of the information which is required. Such as a passport or birth certificate or a travel document is sufficient as evidence. People from foreign or overseas can be asked to produce their passports before the Register. However, to show a passport is not a legal requirement before marriage and despite, one can be produced the birth certificate with the certified translation of the certificate if necessary, any affidavit or any other individual identity document.

Person is subjected to immigration control if he is not:

• a British citizen or
• an EEA national or
• person who don't have the conditions attached for his stay in the UK, because he is, may be a diplomat, or he is member of visiting armed forces.

Religious marriage ceremonies (England and Wales only)

The Church of Wales and England allowed the marriage be register at the time of its performing in the religious way and by religious ceremony.

A notice of the marriage is not necessary to be given to any Register Office if the parties are non-EEA national. If they are EEA national, they require to give a 28 days notice to a Register Office.

In any other religious marriages, one needs to furnish the notice of marriage before 28 days to a Register Office. The other religions’ ministers and priests may be authorized to register the marriages and they should have a license or certificate to perform the marriage from any Superintendent Registrar. For the Jewish and Quaker marriages, the authorization of marriage is automatic.

Capacity to get married

Consent is an important issue for the capacity to join in a marriage. In KC v City of Westminster Social and Community Services Department (2008) EWCA 198, it was found that a man of 26 years old, who had mental capability of a 3 year old, was unfit to enter into a marriage, which was conducted via the telephone by the man in England with the a woman, the other party in Bangladesh. The court held that the court is duty bound to protect that man. In spite of the mental capacity of the man, the marriage has already solemnized and this marriage is valid under both the Bangladeshi law and the Sharia law. By this marriage, the wife of the man, who is a native of Bangladesh can obtain a UK visa.

In case a marriage becomes voidable, means that the marriage will become void from the very time of the decree of nullity is issued by the court. The annulment of the marriage may be asked by the two parties involved in a voidable marriage. Otherwise the voidable marriage will continue as a legal entity. Generally, an application for annulment of the marriage must be made in the court within three years of the marriage.

 Reasons for which a marriage may be declared as voidable include:

• Non-consummation due to the incapacity of either partner;
• Wilful non-consummation by the respondent;
• One or both parties not consenting  to the marriage, for reasons of duress, mistake, or an unsound mind;
• The mental disorder of the respondent, making them unfit for marriage;
• The respondent is suffering from any communicable venereal disease when the marriage solemnized;
• The pregnancy of the Respondent was by someoneelse other than the marriage partner.                                                                                                                                                                                    

Application

In the present case, Romeo was from Cardiff, which is located in United Kingdom and Juliet was from the state of Verona, which is located in Italy. Thus, this makes it clear that both the parties are from different cities, being governed under different set of rules and regulations. The procedure to solemnize a marriage is therefore different in both these cities making the validity of marriage also differ in both the states.

The procedure for marriages in both places differs majorly. In Italy, the Consulate is responsible for marriage registration and in Britain it’s the Local Registrar. Unlike in Italy, no banns need to be published in Britain. It simply requires a 28 days prior notice of the intent to marry by the parties. After which, all the legal documents are checked and the marriage is then registered if all documents are correctly verified. In Italy however, after bann’s are published, it is the parties duty to again apply to the Consulate who will make a declaration in which the parties to the marriage need to personally be present, the consulate then after verification of documents asks the person who performs the marriage ceremony to formally do the same for the applicant couple.

The marriage between Romeo and Juliet was that of a British and a Italian, thus, the laws governing marriage between a British and Italian are also given above. The process of the same is very simple with just 4 step of attaining a No-impediment certificate, then solicitor’s declaration and then the process of getting all documents legalized by the FCO (Foreign and Commonwealth Organization) and lastly translating the No-Impediment certificate into Italian. This clearly states that in the present case, of Romeo and Juliet none of these procedures were followed. Just a telephone call cannot solemnize a marriage. As none of the above procedures were followed, the marriage between Romeo and Juliet was not valid.

After discussing, the procedure to marry, coming to the point in the present case, which stated that, Romeo married Juliet via a telephonic call also is very debatably when it comes to considering the validity of marriage laws. Most countries in the world do not support marriage via telephonic call. However, in Italy, the Italian court in a case decided on February 2007 ruled in favor of telephonic call being held valid in Italy.

Mushtaq, was a Pakistani citizen who worked in Italy with a valid work permit. The Italian Embassy refused him the permit to get him his wife to Italy not recognizing the marriage. Mushtaq was in Italy when the said marriage was solemnized with his wife who was in Pakistan. Considering this the Italian Court Ruled that the validated of the marriage can be judged on the basis of the law in which the marriage is conducted. Thus, the marriage being legal in Pakistan, where it was conducted makes the telephonic marriage legal in Italy too.

This case law makes it clear that if the marriage is legal in the country in which the marriage is celebrated or conducted, the Italian law will consider it valid too. However, in the present case of Romeo and Juliet, the marriage via telephonic call gets valid in Italy only when it is valid in United Kingdom.

Is telephone marriage valid in United Kingdom?

The law in the United Kingdom does not permit marriages if they are conducted:

• if one of the parties to marriage is represented by a proxy, appointed in place of the person getting married
• if the procedure to marry is via phone, video calling or Skype

However, United Kingdom follows the same law that the Italian Courts decided. In United Kingdom too, if the marriage is valid according to the law of the place in which it is conducted, it is recognized as valid for all purposes in United Kingdom. Many legislations in the world recognize marriage as valid if it’s conducted via phone or Skype. If the land in which the marriage is conducted recognizes it to be legal, then United Kingdom respects the law of the land of the place and the people who come from it.

Usually, across the world, telephonic phone calls are not considered to be valid across the world because it lacks the basic requirement of witnesses. Witness is a requirement which majority of the marriage law across the world need. On a telephonic call, this requirement is not fulfilled.

One more reason can be that anyone can deceive his or her voice to marry someone pretending to be someone else. Thus, one party to marriage may think he/ she is marrying a particular person whereas in reality it is someone else with just the particular person’s voice. This is a major shortcoming of a telephonic marriage.

Thus, in the resent case it is clear that Romeo and Juliet’s marriage via telephone stands invalid and unrecognized under both British and Italian law. Both laws do not give recognize to such marriages, unless they are recognized in the place where it’s conducted. As Romeo’s marriage with Juliet was conducted in Cardiff via telephone call to Juliet in Verona, both Cardiff and Verona are the place where the marriage is conducted, and in both these places, the law does not recognize telephone marriage. Thus, Romeo and Juliet’s marriage via telephone call is surely invalid and unrecognized.

Coming to the point, in the present case, which states that Romeo lacked mental capacity to get into a wedlock. It is now necessary to consider mental capacity as a necessity to a valid marriage in both Italian and British law.

In the Italian Civil Code, Article 85, states that a person suffering from mental disability cannot get married. It further states that in case the process of mental disability has started after the parties have been engaged, the Public Prosecutor can ask to postpone the said marriage until he can make a decision whether to allow or disallow such marriage.

In the Italian Civil Code, Article 119, states that marriage of a person with mental disability can be consented by a parent, guardian or a public prosecutor. Consent can be given even if the mental disability did not exist previously but clearly existed at the time of marriage.

Thus, in the present case, Romeo had learning disability since the age of 5, which clearly makes him not eligible to marry according to Article 85 of the Italian Civil Code. Also under Article 119, Romeo’s parents consenting to the marriage does not serve as a justification as Juliet was unaware of the fact that Romeo is a slow learner. This makes Romeo’s marriage to Juliet invalid even in Italy.

In United Kingdom, marriage where a person is mentally ill is considered voidable. Under section 12 of the Matrimonial Clauses Act, 1973, in United Kingdom, a marriage is considered voidable if at the time of marriage, one party even though capable of consenting to the marriage, is suffering from a mental disability, making the party unfit to the said marriage. The definition of mental disability here should be according to the definition of the same mentioned in The Mental Health Act, 1959.

The definition of Mental disability in the Mental Health Act, 1959 states mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind.

Voidable marriages are marriages, which can be cancelled at the request of any one party getting into it. Such marriages are valid, but if one of the parties to the marriage wants to cancel the same, the marriage stands cancelled and void. The party needs to file in the concern Court to cancel the marriage and if the Courts accepts the application, the marriage is cancelled.

Thus, in the given case, Romeo was a slow learner since the age of 5. This clearly states that he was mentally ill and was also supported by Cardiff City Council. This according to the law of United Kingdom, in The Matrimonial Clauses Act, 1973 under section 12, the marriage between Romeo and Juliet was voidable at the option for Juliet to cancel the marriage with an application to the Court stating that Romeo is not mentally eligible to marry. This makes it clear that in the present case, the marriage between Romeo and Juliet is not valid even in United Kingdom as it can be cancelled with merely an application from Juliet to consider the marriage void.

This also makes it clear that Romeo’s parents are not legally permitted to take Romeo o the state of Verona for the marriage between Romeo and Juliet to consummate the same.

Conclusion

In the present case, Romeo was from Cardiff, which is located in United Kingdom. The facts clearly suggest that he had learning disability and was supported by Cardiff City Council since the age of 5.Thus Romeo’s marriage to Juliet stands voidable because he was not mentally fit to decision on marrying someone. In United Kingdom, even The Mental Capacity Act, 2005 states that a person who is mentally unfit cannot be considered fit to make decisions on important events in life like marriage, civil partnership, etc. In the present case, Juliet is eligible to file an application in the concerned Court stating that Romeo was not mentally fit at the time of their marriage, and the Court will grant her application, making the said marriage void.

Even under the Italian law, marrying a person with mental disability is not permitted under Article 85 of the Italian Civil Code. This is the reason the marriage between, Romeo and Juliet is not valid and not recognized according to the land of laws of both the places from where Romeo and Juliet belong. It is also necessary to consider here, that Romeo’s parents who consented for his marriage also does not stand as a valid justification to validate the marriage between Romeo and Juliet. The facts of the case are uncertain on the point of Juliet’s knowledge about Romeo’s mental illness; this is another reason where the consent of Romeo’s parents becomes invalid as any justification to validate the said marriage between Romeo and Juliet.

Coming to the procedure, in which Romeo and Juliet married, which was by a telephonic call from Romeo to Juliet. A marriage via telephonic call is not recognized in most of the countries across the world. The reason being lack of witnesses, even thought there are witnesses hearing the people on the telephonic call taking marriage vows, there is no proper procedure for the witnesses to sign and seal that they witnesses the two parties on the phone marrying one another. Another reason being that, one can easily deceive someone’s voice and marry the other person on the phone pretending to be someone who she/he is not.

Even in the present case, Romeo and Juliet married each other by a telephonic call from Romeo to Juliet, in both the legislations that govern the parties to marriage in this case; a marriage via telephonic call is not recognized. In Italy, a marriage is considered valid via telephone call if the same is valid in the country where the said marriage was conducted or celebrated. In the present case Romeo called from Cardiff which is in United Kingdom, the marriage not being valid via phone in United Kingdom stands unrecognized even in Italy.

Thus in the present case, considering all the arguments made above, it is clear that Romeo and Juliet are not legally married and thus, Romeo’s parents are not lawfully permitted to take Romeo to the state of Verona where Juliet resides to consummate the said marriage. Romeo’s parents, if take Romeo to Verona to consummate the marriage between him and Juliet will be committing a serious offence.

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