The law on divorce and what country has jurisdiction is well established within the EU. Put simply, whoever commences divorce proceedings first in an EU member state, it is that country or jurisdiction that has the conduct of the proceedings.

So, if divorce proceedings are commenced in Italy before they are commenced in England it is Italy that has the jurisdiction of the divorce proceedings subject of course to the usual criteria of residence and domicile.

This article, however, seeks to concentrate on a strange anomaly that is faced by Italian spouses (or a party married to an Italian citizen) and who ‘gets there first’ and commences divorce proceedings in Italy but at the same time has property in England.

The anomaly is this, notwithstanding that the Italian courts have the conduct of the Divorce process, they are very reluctant to make any orders in respect of property that is in England. The Italian courts will make orders regarding the income that is generated by that property but will not for example order that the property is sold.

This is a very different approach to the English courts who regularly make orders for sale in respect of property that is outside the jurisdiction of the English courts. This anomaly I think can be explained to a degree by the fact that Italian law is very much based on Roman law. In Roman law, there is a principle that it is the law of the land that applies when dealing with immovable property and other rights.

So what does this mean in practical terms? If parties divorce in Italy and there is property in England, the parties will have to commence a separate action in England for an order for sale unless of course, the parties agree to the sale by consent. This will involve a second set of proceedings and in most circumstances additional cost.

When dealing with an application for an order for sale, in such circumstances, the English courts will treat the proceedings as a ‘standalone’ order for sale case and not a matrimonial dispute by reference to the Italian Divorce proceedings.

If the property is jointly owned the presumption is that the property will be sold and the net proceeds divided on an equal basis after payment of any mortgage or any other debts that are connected to the property. If the property, however, is in the name of one spouse, then the court will approach the dispute by reference to the House of Lords case of Stack v Dowden [2007] 2 AC 432.

Parties who therefore divorce in Italy and who have property in England will inevitably have to budget for the second set of proceedings in order to deal with the disposal of that property. The answer is; try and resolve the issue by agreement in order to keep costs to a minimum.

Until such time as the Italian courts are prepared to make orders concerning the disposition of property in England, notwithstanding that the property is owned by the spouses in the divorce proceedings, this problem will not go away.

You have been warned!