Transferring the home to a spouse or children in an Italian separation: form, tax, risks

In 2021 the Joint Sections of the Court of Cassation settled a long debate: clauses in a consensual separation or joint divorce agreement that recognise one spouse as sole owner of assets, or transfer them to one spouse or to the children to secure their maintenance, are valid. The agreement, recorded in the hearing minutes drawn up by an officer of the court, takes the form of a public deed and, once the court’s decision closes the proceedings, is valid title for registration in the land registers (Court of Cassation, Joint Sections, 29 July 2021, no. 21761, as recalled by Civil Section II, no. 12967 of 2023 and no. 2360 of 2024).

There is one condition: the court clerk must certify that the parties produced the documents and made the statements required for buildings. These are set out in art. 29(1-bis) of Law no. 52 of 1985: the cadastral data, a reference to the floor plans filed with the land registry (catasto) and a statement that the data and plans match the property as it actually is, which can be replaced by a certificate from a qualified surveyor. The further check on the registered cadastral owners that a notary carries out before a sale is not required.

In practice, the property must be «put in order» before the hearing: floor plans updated, any irregularities cured, title documents to hand. A floor plan that does not match the property can block registration just when the agreement is ready.

The agreement may also contain only an undertaking to transfer, to be carried out later by notarial deed. If the spouse who gave it fails to do so, the other may ask the court for a judgment that has the effect of the promised transfer (art. 2932 of the Italian Civil Code), as the Court of Cassation recalled in 2023 (Civil Section II, no. 12967 of 2023).

Consensual separation and divorce can also be concluded out of court, through assisted negotiation (negoziazione assistita) with at least one lawyer for each spouse; where there are minor or dependent children the agreement must be authorised by the public prosecutor (art. 6 of Decree-Law no. 132 of 2014). It is a route that usually avoids a hearing, but it requires an extra step to transfer a property.

The law states expressly that property transfer clauses in such an agreement have obligatory effect only (art. 6(3)): the agreement commits the spouses to transfer, but ownership passes with a later deed. And to register a deed subject to registration, the signatures on the agreement must be authenticated by an authorised public officer (art. 5(3)). Anyone choosing this route should plan the visit to the notary from the start.

Transferring a property to the children, or undertaking to do so, in order to meet the duty of maintenance is not a gift. According to the Court of Cassation such an agreement serves to discharge and offset the maintenance obligation and is a valid contract pursuing interests worthy of protection; a parent who undertakes in a separation to transfer a property to a child enters, with the other spouse, into a preliminary contract for the child’s benefit (Civil Section II, no. 12967 of 2023).

A pure gift is a different matter. Under Italian law a gift (donazione) requires a notarial public deed with two witnesses, and in 2024 the Court of Cassation held void, for lack of form, a gift of shares in properties made by a mother to her children in a court settlement record (Civil Section II, no. 2360 of 2024). That is why the clause must explain why the transfer is being made: as maintenance, in whole or in part, and with what effect on the monthly allowance.

Putting a property in the children’s names should also be weighed for the future: while a child is a minor, the parents cannot sell or mortgage the property without the authorisation of the guardianship judge (art. 320 of the Civil Code), and the asset becomes part of the child’s estate, not that of the parent the child lives with.

Deeds, documents and decisions in divorce proceedings are exempt from stamp duty, registration tax and any other charge (art. 19 of Law no. 74 of 1987); the Constitutional Court extended the exemption to those relating to legal separation (judgment no. 154 of 10 May 1999).

The Court of Cassation applies it to every agreement by which the spouses settle their property relations under the court’s supervision, including transfers of sole ownership of movable or immovable property to either spouse or to the children. The exemption does not distinguish between real estate and movable assets and is not limited to indirect taxes: in the case decided, it covered the substitute tax on the capital gain from a transfer of company shares to the spouse (Court of Cassation, Section VI-5, order of 7 September 2022, no. 26363). The court-ordered division of the marital community of property that follows a separation is exempt too (Section V, order of 8 June 2022, no. 18556).

From 1 January 2027 art. 19 will be repealed and replaced by art. 195 of the new consolidated act on registration tax and other indirect taxes (Legislative Decree no. 123 of 2025), which restates the exemption and names legal separation proceedings expressly. The rule stays, now written into the statute.

Transferring the home does not, by itself, change the mortgage loan. If one spouse takes over the repayments, the other remains jointly liable to the bank until the bank expressly releases them (art. 1273 of the Civil Code): an agreement that does not provide for this leaves the spouse who gave up their share exposed.

Registration makes the transfer enforceable against third parties and must be taken care of. A case decided in 2024 shows why: two spouses had transferred a property in their separation and placed a purpose restriction on it, but the restriction was never registered and an attachment and several mortgages were then entered against the property. According to the Court of Cassation, registering the restriction was an option the parties had to request, not a duty of the court clerk, who was therefore not liable (Section III, order of 19 November 2024, no. 29824).

The creditors of the spouse making the transfer must also be considered: a deed that removes assets from their reach can be challenged with an action to set it aside (azione revocatoria, art. 2901 of the Civil Code). A transfer proportionate to maintenance obligations, with its reason documented, is harder to attack than a disposal that empties the estate of someone in debt.

Consider a married couple in Milan with children aged ten and fifteen. The family home is jointly owned and mortgaged; the husband also owns a small let flat. They agree that the husband transfers his half of the home to the wife, who lives there with the children, and the bare ownership of the flat to the children, as maintenance; the monthly child allowance is reduced accordingly and the wife takes over the mortgage.

If they choose a joint application to the court, the hearing record can transfer the shares directly, provided the floor plan of the home, where a wall was moved years ago, is updated with the land registry before the hearing. If they choose assisted negotiation, the agreement binds them and a notarial deed must follow. Either way, the agreement must provide for the bank’s consent to release the husband from the mortgage, and the clause on the flat must state that the transfer counts towards maintenance, so that it is not read as a gift.

1. The property’s documents: title deed, cadastral records and floor plans, a check that they match the property, any building permits.
2. The position on the mortgage and any charges, and a written answer from the bank on the takeover of the loan and the release of the spouse giving up their share.
3. The choice of route: a joint application to the court, if the record is to transfer ownership, or assisted negotiation followed by a notarial deed.
4. A written clause stating the reason for the transfer: to whom, for which obligation, with what effect on the allowance.
5. A check on the debts of the spouse making the transfer and on any restrictions on the assets.
6. Registration: who takes care of it and when, including any purpose restrictions.

In our separation and divorce work, the firm prepares the property settlement together with the notary and, where needed, the surveyors, so that the transfer has the intended effects.