Prenuptial agreements in Italy: what couples can agree before and during marriage

The starting point is art. 160 of the Civil Code: spouses may not depart from the rights and duties that the law attaches to marriage. These are listed in art. 143: fidelity, moral and material support, cooperation in the interest of the family, living together, and the duty to contribute to the family’s needs in proportion to one’s means and capacity to work.

On this basis the Court of Cassation long treated as void, for unlawful cause, agreements by which spouses settle in advance the terms of a future divorce, including the divorce maintenance allowance (assegno divorzile), which serves a support function and cannot be disposed of. This line of case law goes back at least to judgment no. 8109 of 2000, and the 2025 order refers to it expressly.

The law does, on the other hand, provide explicit tools to organise a couple’s assets. With a marital agreement (convenzione matrimoniale) spouses may opt for separation of property, so that each remains the sole owner of what they acquire during the marriage (art. 215) instead of the default community of property (art. 159), or set up a family fund (fondo patrimoniale) for the family’s needs (art. 167). Marital agreements must be made by notarial deed, on pain of nullity, and may be made at any time; separation of property may also be chosen in the marriage certificate itself (art. 162).

The case concerned a private agreement signed in 2011, years before the couple separated. The husband acknowledged that his wife had contributed her salary to the family’s expenses and to the mortgage taken out to renovate the home, which was in his name only, and undertook to repay her 146,400 euros if they separated; she in turn gave up some assets in his favour, including a boat, the furniture and money held in a bank account. After the separation in 2019, the husband asked the courts to declare the agreement void as contrary to arts. 143 and 160 of the Civil Code.

The trial court and the court of appeal held the agreement valid, and the Court of Cassation dismissed his appeal. The agreement is an atypical contract subject to a lawful condition precedent: the breakdown of the marriage is not the reason for the agreement but the future and uncertain event on which its effects depend, and the agreement pursues interests worthy of legal protection (arts. 1322 and 1354 of the Civil Code). No mandatory rule prevents spouses, before or during the marriage, from acknowledging a debt to each other and making its repayment conditional on separation.

The Court also stressed that the agreed sum did not interfere with the divorce allowance: the agreement used neither the words «lump sum» (una tantum) nor any waiver of maintenance. It observed that the agreement had settled the spouses’ financial position «freely, thoughtfully and in a balanced way». The order describes this as settled case law, citing among others judgments no. 23713 of 2012, no. 19304 of 2013, no. 11012 of 2021 and no. 13366 of 2024.

The case law recalled by the Court draws a fairly clear boundary. Italian courts have upheld, for instance:

• the acknowledgment of one spouse’s contributions, with an obligation to repay them if the couple separates, including in the form of a loan between spouses;
• the allocation of specific assets, or the terms on which jointly owned assets will be divided, in case of separation or divorce;
• a sharing of family expenses other than in proportion to means, agreed during the marriage;
• a periodic annuity included in a division of movable and immovable property and conditional on divorce.

These agreements sit alongside the standard tools: separation of property, the family fund and, for international couples, the choice of the law governing the property regime. Together they can protect a family business, inherited wealth or the savings of a spouse who stepped back from work for a while.

First, the agreement cannot cover the divorce allowance: it can be neither set nor excluded before the divorce. When the divorce comes, the parties may agree on a single lump-sum payment if the court considers it fair, after which no further financial claims can be brought (art. 5 of Law no. 898 of 1970).

Spouses cannot depart from the personal duties of marriage, such as fidelity or support. Agreements concerning minor children always remain subject to review by the court, which checks that they serve the children’s best interests, as the 2025 order also points out.

Finally, the agreement cannot govern inheritance: Italian law declares void any agreement by which a person disposes of their own estate, and any act disposing of or waiving rights in an estate not yet opened, save for the family business agreement (patto di famiglia) (art. 458 of the Civil Code). Estate planning needs its own instruments, starting with a will.

When a couple has ties to more than one country, EU regulations allow some of the applicable laws to be chosen in advance. Italy takes part in both of the regulations concerned.

For the matrimonial property regime, spouses and future spouses may choose the law of the State where at least one of them is habitually resident, or of which one of them is a national, at the time of the agreement (art. 22 of Regulation (EU) 2016/1103). The agreement must be in writing, dated and signed by both; if both live in a State that requires further formalities for marital agreements, those apply too – in Italy, for marital agreements, a notarial deed (art. 23 of the Regulation and art. 162 of the Civil Code). A change agreed during the marriage takes effect only for the future, unless the spouses agree otherwise.

For separation and divorce, spouses may choose between the law of their common habitual residence, that of their last common residence if one of them still lives there, the law of the nationality of either of them or the law of the court seised (art. 5 of Regulation (EU) No 1259/2010). This agreement too must be in writing, dated and signed by both, and may be concluded at the latest when proceedings begin, unless the law of the court allows it later (arts. 5 and 7).

An agreement already signed abroad under another law must be read clause by clause: the part on the property regime may well hold, while clauses on maintenance and children follow different rules and must be assessed separately.

With these agreements, much depends on the quality of the drafting. When we assist a couple in preparing one, as part of our family law work in Milan, we pay particular attention to a few points:

1. State the reasons: who contributed, how much, to which asset. This is what allowed the Court of Cassation to see in the 2011 agreement a rebalancing worthy of protection.
2. Keep the evidence: bank transfers, statements, purchase deeds, mortgage contracts.
3. Keep the clauses apart: financial terms separate from anything on allowances and children, so that a challenge does not reach the whole agreement.
4. Choose the right form: a notarial deed for marital agreements and, if you live in Italy, for the choice of the law of the property regime; writing, date and both signatures for the other agreements.
5. Update it when circumstances change: an inheritance, the birth of a child, a move abroad, entry into a company.

Take a couple marrying in Milan: he holds shares in a family business, she is a manager who will pause her career for a few years and uses her own savings to renovate the home registered in his name. By notarial deed they can opt for separation of property; in a separate document they can acknowledge her contribution and provide for its repayment in case of separation. What they cannot do is decide today whether, and how much, he will owe her as a divorce allowance, or how their children will be cared for: on those points, if it comes to it, the court will decide.