Determining which court has jurisdiction in an international divorce - especially where one or both spouses live abroad or hold different nationalities - is one of the first and most important steps in any cross-border family matter.
In Italy, jurisdiction follows a strict hierarchy of legal sources: European Union regulations take precedence, followed by national law where no EU rule applies.
The rules vary depending on the subject of the application - whether it concerns the dissolution of marriage, parental responsibility, or maintenance obligations.
Jurisdiction for divorce proceedings
The main instrument governing jurisdiction for divorce within the EU is Regulation (EC) No 2201/2003, known as Brussels II bis.
It applies regardless of the spouses’ nationality - even if one or both are nationals of non-EU countries - as long as there is a substantial connection to an EU Member State.
Article 3 of the Regulation lists several alternative and non-hierarchical criteria, giving the applicant a degree of flexibility to select the most appropriate forum.
A divorce application may be brought before the courts of the Member State:
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Where the spouses are habitually resident;
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Where they were last habitually resident together, if one still resides there;
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Where the respondent is habitually resident;
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In the case of a joint application, where either spouse is habitually resident;
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Where the applicant is habitually resident, provided they have lived there for at least one year (or six months if they are a national of that country).
Italian courts have consistently applied these principles.
For example, the Parma Court upheld Italian jurisdiction where the applicant, an Italian citizen, had been habitually resident in Italy for more than a year prior to filing.
Similarly, the Ancona Court recognised Italian jurisdiction in a divorce between Eritrean nationals on the basis that one of the spouses had established habitual residence in Italy.
If none of the EU criteria apply, national law acts as a fallback.
Article 32 of Law No. 218/1995 provides that Italian courts have jurisdiction where at least one spouse is an Italian citizen or the marriage was celebrated in Italy - but only where no EU Member State has jurisdiction under the Regulation.
Jurisdiction over matters involving children
When a divorce involves children, different rules apply.
Parental responsibility
All matters relating to custody, residence and contact are governed by Article 8 of the Brussels II bis Regulation, which grants exclusive jurisdiction to the courts of the country where the child is habitually resident at the time the proceedings are initiated.
The concept of habitual residence is a factual assessment - not merely a question of registration or nationality. It refers to the place where the child has established the centre of their life - where they go to school, have social ties, and feel emotionally settled.
This principle reflects the best interests of the child and the proximity principle, ensuring that decisions are made by the court most closely connected to the child’s daily life.
The Italian Supreme Court (Corte di Cassazione) has repeatedly confirmed that applications concerning custody or child maintenance - even those seeking to modify previous divorce orders - must be brought before the court of the child’s habitual residence.
Exceptions to this rule are rare, and require the explicit and unequivocal agreement of both parties as well as confirmation that it does not conflict with the child’s best interests.
Jurisdiction for maintenance obligations
Applications concerning maintenance - whether for a spouse or for children - are governed by Regulation (EC) No 4/2009. Article 3 provides several alternative forums, allowing proceedings to be brought:
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Before the court where the defendant is habitually resident;
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Before the court where the maintenance creditor is habitually resident;
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Before the court handling the divorce or separation proceedings, if the claim is ancillary;
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Before the court dealing with parental responsibility, if the claim concerns a child.
The Court of Justice of the European Union (CJEU) clarified in a 2015 judgment that maintenance applications concerning minor children are ancillary exclusively to proceedings on parental responsibility, not to divorce proceedings. As a result, jurisdiction for child maintenance follows that of parental responsibility - meaning it lies with the courts of the country where the child is habitually resident.
Which law applies to the divorce?
Once Italian jurisdiction has been established, the next question is which national law should apply to the substance of the divorce. This is determined by Regulation (EU) No 1259/2010, known as Rome III. Spouses may jointly choose the applicable law (Article 5).
If no such choice has been made, Article 8 provides a cascading set of default rules:
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The law of the country where the spouses are habitually resident when the court is seized;
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Failing that, the law of the country of their last habitual residence, if it ended within one year and one still resides there;
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Failing that, the law of the country of which both spouses are nationals;
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Failing that, the law of the forum, i.e. Italian law.
However, a foreign law will not be applied if it conflicts with Italian public policy.
Civil partnerships
For civil partnerships, Article 32-quater of Law No. 218/1995 gives Italian courts jurisdiction if:
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One partner is an Italian citizen, or
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The partnership was registered in Italy.
The applicable law is determined according to the same criteria as under Rome III.
In summary
Establishing jurisdiction in an international divorce means identifying the court and legal system most genuinely connected to the couple’s life - or, where children are involved, to their best interests.
The European and Italian frameworks work together to ensure that proceedings are coherent, predictable and fair, combining flexibility for families with respect for fundamental principles of proximity and justice.
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