di Guido De Rosa e Emanuele Calò

There is a trend towards the privatization of family law, because the current law tends to offer a range of alternatives. It's an almost universal tendency, which already has a history both in the common law and in the civil law. The example are the prenuptial agreements, marriage conventions that may concern either the matrimonial property regime that the economic rights in the event of divorce.

Privatization of family law displaces the rights from the State to individuals, which can act on the basis of fundamental rights attributed by the conventions on human rights, in which the right to marry is part of human rights. This qualification has consequences, and therefore, in Italian law, certain legal limits to the celebration of marriage have been considered as contrary to the Constitution and human rights conventions.

For its part, the right to family life, according to the case-law of the European Court of human rights, includes same-sex couples. However, Italy, even if within its laws there are rules that recognize some rights to the cohabitants, the Parliament has not emanated, until now, any rule on the registered partnerships. The foreign registered partnerships, anyway, are recognized, with nuances and distinctions. In this respect, there is an Italian law which concerns reverse discrimination in the European Union, which could have effects in favor of the recognition to Italian nationals of the rights already recognized to the other non italian European citizens.

Always within the European Union area, ans as far as the European Court is concerned, following the García Avello case of the European Court of Justice, and its subsequent judgments on the parity of rights in Europe, eliminating in the case of dual nationality the rule that imposes that the nationality of the Forum does prevail.

In our report, we did a search on matrimonial property regimes and from the statistical data it follows that the Italian legal regimes - the community of acquests - is now unpopular, and that most of the spouses choose the separation of property.

The description of matrimonial regimes has given us the opportunity to also describe the Patrimonial Fund (fondo patrimoniale) , which allows to defend the family's property, providing them their survival, in their relationshio with the creditors when the debt has not been done for the needs of the family. At the same time, we consider that we should focus on the defence of the family home, and one might immediately suggest the Notariat to dedicate its efforts to the preparation of legislative proposals which, noting the global crisis, aim to defend the weak.

In this regard, we considered important to recall that the right to housing is considered a fundamental right by several international conventions. The consequence of this characterization is that laws that do not recognize such a right could violate a human right.

The discipline of filiation in Italy has recently undergone significant changes, following a December 2012 law that equalized the rights of the legitimate, natural and adoptive sons.

In the relations between spouses, the principle of equality is absolute, and with regard to their relationships with their sons, the rights of minors are, even slowly, recognized.

The proprietary aspects of parental authority demonstrate an excessive complexity of the legal devices, which should be somehow, let’s say, relaxed. A need of modernisation is visible also in the transmission of the surname to wives, where gender parity must be still recognized by law.

Italian family from the year 2001 law, has introduced the orders of protection against family abuse, giving protection to the victims of the violence, away officials.

The AHR (assisted human reproduction) and its limits also were the subject of our attention.

It has focused also on the adoption, and the requirement to recognize and protect minors, especially in intercountry adoption.

The report also covers the description of Italian divorce, as well as the Regulation (EU) 1259/2010 (Rome III), Regulation (EC) No. 22012003 of the Council of 27 November 2003 concerning jurisdiction, recognition and performance of judgments in matrimonial matters and the matters of parental responsibility repealing Regulation (EC) No. 1347/2000, Regulation (EC) No. 4/2009 of the Council of 18 December 2008 on jurisdictiona and pplicable law, recognition and enforcement of decisions and cooperation relating to maintenance obligations and the Protocol on the law applicable to maintenance obligations (concluded on November 23, 2007). From these regulations we can see a system that allows, inter alia, to choose the law applicable to divorce and economic rights between divorced spouses through a notarial deed, choosing also, provided it is possible, a law that allows pre-marital agreements.

As far as succession is concerned, we have described the Italian system, the rules that are an exception to the prohibition of succession pacts, the Italian private international law and the upheaval caused by the Regulation (EU) no 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and performance of decisions, and acceptance and performance of authentic matters of succession and the creation dun European certificate of succession. Finally, it has shown as in the United States it was proposed to introduce the notarial profession in its French shape, in the successions field, in order to solve the many problems that arise in that country in the aforesaid field.

Then, we did focus on the future of marriage and partnerships, highlighting the role of autonomy in private law and in the conflict of laws area.

Finally,we tried to draw the conclusions of the report, with a comment on the prospects of the notarial profession.

We can, now, draw altogether the conclusions of our report. Now, the International Union of notaries (UINL) has the means for an increased and improved legal collaboration between all the notaries of the world through the World Notaries Network. It follows that, now, the Notariat is the profession that has the greatest potential to circulate and implement the national legal models matrimonial property regimes, partnerships, and estates, including, as far as legal sources areconcerned, the (international) Conventions and the (European) Regulations that are the means to achieve such a purpose.

In this respect, the Union should contribute to the aforesaid diffusion of the (European) Regulations and (International) Conventions, in order to increase their practical application. The strength of the profession will increase, insofar as it will use continental and intercontinental commissions and legal notarial websites, in order to circulate the enormous know-how of the notarial profession, and its reports at international congresses are a powerful example. Furthermore, every National Notarial Chamber should dedicate all its efforts to further improve the quality and quantity of its legislative proposals. We can recall that the level of the legislation and of the notariat are an important indicator of the civil and economic progress and welfare of each country.

We propose also to dedicate part of the meetings of our international commissions to the comparison of our legislative proposals, knowing that such an instrument of comparative law will contribute to increase the prestige of the notary, as well as to increase the quality of life in our countries.

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