Divorce with a spouse abroad: which country and which law

Within the European Union, jurisdiction over divorce and legal separation is governed by Regulation (EU) 2019/1111, which also covers parental responsibility for children. The law applicable to the divorce is set, for Italy, by Regulation (EU) No 1259/2010 (known as Rome III), to which the Italian private international law statute refers (art. 31 of Law no. 218 of 1995).

That regulation, however, expressly excludes maintenance obligations, the property consequences of marriage and parental responsibility (art. 1(2)). Maintenance for a spouse or children follows Regulation (EC) No 4/2009, which refers to the 2007 Hague Protocol for the applicable law (art. 15); matrimonial property has a regulation of its own, which we discuss in our article on prenuptial agreements in Italy. The same divorce may therefore be governed by one law and the maintenance by another.

Jurisdiction lies with the courts of the member state where there is (art. 3 of Regulation 2019/1111):

• the spouses’ habitual residence, or their last common habitual residence if one of them still lives there;
• the respondent’s habitual residence, or either spouse’s in the case of a joint application;
• the applicant’s habitual residence, if they have lived there for at least a year before applying, or six months if they are a national of that state.

The courts of the state of which both spouses are nationals also have jurisdiction. These grounds are alternatives: in practice, for an international couple, two countries often have jurisdiction, sometimes three.

If divorce or separation proceedings between the same spouses are brought in two member states, the court seised second stays its proceedings until the first has established its jurisdiction; once it has, the second declines jurisdiction (art. 20 of Regulation 2019/1111). Whoever files first, in effect, chooses the country of the divorce.

That is why the assessment must be made before acting, and before the other spouse does. The differences between legal systems can be significant: in Italy, if Italian law applies, a divorce requires a separation that has lasted at least twelve months, or six if by consent (art. 3 of Law no. 898 of 1970); other systems allow divorce without a prior separation and regulate maintenance with different criteria and durations.

The spouses may agree on the applicable law, choosing between the law of their common habitual residence, that of their last common residence if one still lives there, the law of either spouse’s nationality, or the law of the court seised (art. 5 of Regulation 1259/2010). In Italy the choice is made in a private written agreement, and can also be made during the proceedings, until the end of the first hearing, by a statement recorded by the court (art. 31(2) of Law no. 218 of 1995).

Without a choice, the law is found in a cascade (art. 8 of Regulation 1259/2010): that of the common habitual residence when the court is seised; otherwise that of the last common residence, if it ended no more than a year earlier and one spouse still lives there; then that of common nationality; finally that of the court seised. The designated law applies even if it is the law of a non-EU state (art. 4), unless it makes no provision for divorce or does not give both spouses equal access to it, in which case the law of the court applies (art. 10).

A case decided by the Court of Cassation shows how this works in practice (Court of Cassation, Civil Section I, judgment of 29 August 2025, no. 24187). A couple married in London in 2002 lived in the United Kingdom; in 2017 the wife returned to Italy and the husband filed for divorce at the Ragusa Court. Once Italian jurisdiction was established, the court applied English law as the law of the last common habitual residence, where the husband still lived, and therefore the Matrimonial Causes Act 1973.

Maintenance was set under the English criteria (income and earning capacity, needs, standard of living, age and length of the marriage, contributions to the family) at €1,400 a month, from the application until the thirty-sixth month after the judgment was filed: a time limit set in applying English law. The court found the husband’s financial disclosure, stating an annual income of €20,000, implausible, while the request for information sent to the United Kingdom had gone unanswered. The Court of Cassation dismissed the husband’s appeal.

Maintenance has its own jurisdiction rules: among others, the courts of the place where the respondent is habitually resident, or where the creditor, the person claiming maintenance, is habitually resident (art. 3 of Regulation 4/2009). The Joint Sections of the Court of Cassation applied this rule to two Albanian parents, divorced in Albania and living in Italy with their children: Italian courts have jurisdiction over the children’s maintenance, because the regulation also applies to nationals of non-EU countries (Court of Cassation, Joint Civil Sections, order of 17 August 2025, no. 23425).

The law applicable to maintenance is instead determined under the 2007 Hague Protocol, and may differ from the law of the divorce. Where Italian law applies, the divorce maintenance allowance (assegno divorzile) is due when the claimant lacks adequate means or cannot obtain them for objective reasons, assessed in the light of each spouse’s contribution to family life and assets, their incomes and the length of the marriage (art. 5 of Law no. 898 of 1970).

Consider an Italian manager married to a Dutch national: the couple lived in Amsterdam, where the wife still lives, and he moved back to Milan eight months ago. The Dutch courts have jurisdiction, because the last common residence is in the Netherlands and the respondent lives there, but so do the Italian courts, because the husband is an Italian national who has lived in Milan for more than six months. If they made no choice of law, even the Milan court would apply Dutch law, because their common residence ended less than a year ago and the wife still lives there.

1. Reconstruct dates and residences: where each spouse lived, since when, with which documents (leases, registration, employment, the children’s schools).
2. Look for agreements already signed: a choice of applicable law may be found in a prenuptial agreement or a contract made abroad.
3. Compare the outcomes in the countries with jurisdiction, with a local colleague: timing, need for a separation, maintenance, division of assets.
4. Gather financial information held abroad before starting: obtaining it during proceedings, through the authorities of another state, can take a long time.

A divorce granted in one member state is recognised in the others without any special procedure, including for updating civil status records once it can no longer be appealed (art. 30 of Regulation 2019/1111). We act for couples and spouses living between Italy and other countries in separation and divorce proceedings in Italy, in Italian and in English; you can contact us from abroad.