Separation in Italy when a spouse owns a business: the company and the shares

Everything that follows applies only if the spouses are under the community property regime, which is the default under Italian law when no other choice has been made. Under separation of property (separazione dei beni), chosen when marrying or by a later agreement, the business and the shares remain with whoever holds them, and the other spouse’s assets matter, if at all, for maintenance.

The regime can be checked on the extract of the marriage certificate, where a choice of separation of property is recorded. Spouses married abroad should first establish which law governs their property regime: the answer may lead to Italian law or to the law of another country.

The Italian Civil Code distinguishes between assets that become joint at once, assets that become joint only if they still exist when the community ends (the so-called comunione de residuo, or deferred community) and personal assets (arts. 177, 178 and 179 of the Civil Code). For a business there are four main situations.

• A business of one spouse set up after the wedding. The assets used in the business become joint only if they still exist when the community ends (art. 178): the typical case of deferred community.
• A business set up before the wedding. It remains personal; only its increases in value fall into the deferred community, if they still exist when it ends (art. 178).
• A business run by both spouses. If set up after the wedding it is joint from the start; if it belonged to one of them before, the community covers only profits and increases (art. 177(d)).
• Shares in companies. The Court of Cassation applies the deferred community to a holding in a company set up after the wedding, in which the spouse invests in order to run a business; it treats instead as joint acquisitions shares subscribed during the marriage as an investment, even if paid for with personal money (Court of Cassation, Civil Section II, 27 April 2023, filed 13 July 2023, no. 20066).

Excluded from the community, among others, are assets received by gift or inheritance, those used for the spouse’s profession – unless intended for a jointly owned business – and those bought with the proceeds of personal assets, provided this origin is expressly stated in the deed of purchase (art. 179). For a professional, then, the tools of their practice usually remain personal. The boundary between the categories is not always clear-cut: it has to be traced on the documents for each holding.

For years Italian courts debated whether, under the deferred community, the spouse who does not run the business becomes co-owner of its assets or is only owed a sum of money. The Joint Divisions of the Court of Cassation (Sezioni Unite) chose the second answer: the other spouse has a monetary claim equal to 50% of the value of the business, taken as an organised whole, assessed when the community ends and net of the liabilities existing on that date (Court of Cassation, Joint Civil Divisions, 10 May 2022, filed 17 May 2022, no. 15889).

There are three practical consequences. The other spouse does not become a shareholder or co-owner and has no say in running the business. The value is fixed on a date: as a rule, what happens to the business after the community ends, for better or worse, does not change the claim. And the business’s debts existing on that date are deducted from the value before it is shared.

For assets in immediate community, such as shares bought as an investment, the general rule applies instead: on division, assets and liabilities are shared equally (art. 194). A spouse who used personal money to buy them cannot ask for it back (Court of Cassation, Civil Section II, no. 20066/2023).

Alongside the division come the accounts between the spouses. A spouse who took money from the joint estate for purposes other than the family’s needs must reimburse it, and a spouse who spent personal money on the joint estate, such as renovating a jointly owned property, can ask for it to be returned: reimbursements and refunds are settled when the community ends (art. 192). In families with a business, these movements between personal accounts, joint accounts and the company need to be traced patiently.

On separation, the community ends when the judge authorises the spouses to live apart or, in a separation by consent, on the date they sign the record before the judge, provided the separation is then approved by the court (art. 191). The Code still refers to the «president of the court»: since the 2022 reform, temporary and urgent measures are ordered by the judge after the first hearing (art. 473-bis.22 of the Code of Civil Procedure).

That date is decisive. Business assets, increases in value, earnings and the income from personal assets fall into the deferred community only if they still exist, and have not been spent, at that moment (arts. 177(b) and (c) and 178). This is why the financial statements, management accounts and bank statements for that period are at the heart of the dispute.

The value of the business or the holding is usually reconstructed through a court-appointed expert, starting from the financial statements and the balance sheet on the date the community ended. The claim is calculated on the net value, so the assessment of the company’s debts and provisions weighs as much as that of its assets.

In separation proceedings, when financial support is claimed, the judge may order the parties to complete their documents, order disclosure and direct inquiries into income and assets, including those held through third parties and with the help of the tax police (art. 473-bis.2 of the Code of Civil Procedure). The same information matters for maintenance between spouses, which takes into account the business’s profits and each spouse’s assets.

1. Check the property regime on the extract of the marriage certificate and any later agreements.
2. Trace the history of each holding: articles of association, historical company register extract, deeds of purchase or transfer of shares, capital increases, with their dates relative to the wedding.
3. Gather the financial statements for recent years and, as soon as possible, a balance sheet close to the date the community ended.
4. Document the origin of the money used for major purchases: gifts, inheritances, sales of personal assets, and the statements included in the deeds.
5. Consider an agreement: in a separation by consent, the claim can be settled together with the family home, maintenance and payment terms, in a way the business can sustain.

In our separation and divorce work we consider the financial side together with the home, the children and maintenance, because the final figure depends on choices that have to be read together.

Consider a couple married under community property since 2010. In 2014 he sets up a limited company (s.r.l.) in which he holds 100% and which he runs alone; in 2018 he buys shares in a listed company with his savings; she inherits a flat. In 2026 they separate.

The holding in the limited company falls into the deferred community: she is entitled to a sum equal to half the company’s net value on the date the judge authorises them to live apart, while he remains its sole shareholder. The listed shares, bought as an investment during the marriage, are joint and are divided in half. The inherited flat remains hers. On each of these points, classification and valuation turn on the documents for the individual transactions.