The management of family assets and their protection are extremely delicate issues, often intertwined with the legitimate claims of creditors. When entering into asset agreements, marriage settlements, or proceeding with a separation of assets, it is crucial to understand the boundaries between legitimate planning and what the law defines as an act in fraud of creditors. In fact, acts seemingly aimed at regulating family relationships can often conceal the intent to shield assets from creditors' guarantees. As a family lawyer operating in Milan, Avv. Marco Bianucci deals with these complex dynamics daily, offering clear guidance to both those who need to protect their assets in compliance with the law and those whose credit rights are being violated.

Simulation and Revocatory Action in Family Law

In the Italian legal system, asset agreements between spouses or future spouses are subject to careful regulatory scrutiny. The law distinguishes between absolute simulation and relative simulation. Absolute simulation occurs when the parties pretend to enter into a contract (e.g., a sale or a separation of assets) but in reality, they do not intend any legal effect; the purpose is often to make their assets appear depleted to third parties. Relative simulation, on the other hand, occurs when the parties enter into an act different from the one they actually want. In both cases, if the operation is aimed at harming creditors, the legal system provides specific protective measures.

The primary tool for protecting creditors is the ordinary revocatory action, governed by Article 2901 of the Italian Civil Code. This action allows a creditor to have acts of disposition of assets, by which the debtor prejudices their claims, declared ineffective with respect to them. For the action to be successful, objective damage (the debtor's impoverishment) is not sufficient; it is also necessary to demonstrate the so-called consilium fraudis, i.e., the debtor's awareness (and sometimes that of the third-party acquirer) of causing prejudice to the creditor. This scenario is frequent in cases of fictitious consensual separations or the establishment of a functional family fund, where the transfer of real estate or the encumbrance of assets is used as a shield against past or future debts.

The Approach of the Bianucci Law Firm to Asset Protection

Avv. Marco Bianucci, an expert lawyer in family law and asset protection in Milan, adopts an analytical and rigorous approach in examining each individual case. There is no standardized solution: every asset agreement or separation act must be evaluated in light of the existing debt situation and the timing of its implementation. The firm's strategy is based on an in-depth investigation of the chronology of events and the parties' true intentions, which are key elements for supporting or dismantling an accusation of simulation.

For clients who need to restructure their asset framework, Avv. Marco Bianucci offers preventive advice aimed at ensuring that every operation is transparent, legitimate, and resistant to future challenges. Conversely, when assisting creditors, the intervention focuses on gathering the necessary evidence to prove the fraudulent nature of the act, acting promptly before the Court of Milan to exercise the revocatory action or to assert the simulation of the act. Technical expertise in procedural and substantive matters allows for confidently navigating the pitfalls of jurisprudence, clearly distinguishing between legitimate protection of family assets and fraudulent evasion of obligations towards third parties.

Frequently Asked Questions

Is it possible to annul a separation of assets if it was done to avoid paying debts?

Yes, it is possible. If the separation of assets or the transfer of property that occurred during a consensual separation was carried out with the sole purpose of shielding assets from creditors, the creditors can exercise the revocatory action. They must demonstrate that the act reduced the asset guarantees and that the debtor was aware of the prejudice caused. In cases of absolute simulation, the act can be declared null and void.

What is a family fund and does it truly protect against creditors?

A family fund is a lien placed on certain assets (real estate or registered movable property) intended to meet the needs of the family. While it offers protection from debts incurred for purposes unrelated to family needs, it is not an absolute shield. If the fund is established after incurring debts or with the intent to defraud creditors, it can be subject to a revocatory action within five years of its establishment.

What is the difference between absolute and relative simulation in a family context?

Absolute simulation occurs when the parties pretend to conclude an agreement (e.g., a sale between spouses) but in reality, they do not intend any legal effect, leaving the ownership situation substantially unchanged. Relative simulation occurs when the parties conclude an agreement (simulated contract) but actually intend a different one (dissimulated contract), for example, a donation disguised as a sale to avoid hereditary collation or seizure by creditors.

How long do creditors have to challenge an asset transaction?

For the ordinary revocatory action, the statute of limitations is five years from the date of the disposition act. For the action of simulation, however, the action is imprescriptible if it aims to assert the absolute nullity of the act, while it is subject to prescription if it is intended to assert rights arising from the dissimulated contract. It is essential to act promptly by engaging a competent lawyer.

Request an Assessment of Your Case in Milan

If you fear that your assets may be at risk or if you believe you are the victim of asset fraud through simulated agreements, it is essential to act with awareness and strategy. Avv. Marco Bianucci is at your disposal to analyze your situation and define the most effective legal course of action. Contact the Bianucci Law Firm at its office at via Alberto da Giussano, 26 in Milan for an in-depth and confidential consultation.