International divorce involves a marriage with concrete connections to multiple countries: different nationalities, a shared life spent abroad, a spouse who has relocated to Italy, children living in another state, or assets located outside national borders. In these situations, it is not enough to ask whether the marriage can be dissolved. It is necessary to understand which authority has jurisdiction, which law governs the divorce, and which issues remain subject to different rules.
I want to help you distinguish steps that are often overlapped: competent court and applicable law do not automatically coincide; furthermore, divorce does not always grant the same judge jurisdiction over decisions regarding children, maintenance, or property. We will see which connections matter, why transfer dates can change the answer, and how to avoid initiating a lawsuit without considering proceedings already pending in another country.
When a divorce has an international dimension
A divorce takes on an international dimension when the couple's life is not concentrated in a single state. The foreign nationality of one spouse is a relevant element, but not essential: even two Italian citizens may face an international problem if they have lived together abroad, if one now lives in another country, or if the children have their daily lives across the border.
The most important connection is often habitual residence. This does not equate to mere registry residence or a mailing address used for correspondence. It indicates the place where a person lives with a recognizable degree of stability: actual housing, work or activity, duration of stay, family relations, and organization of daily life. For a child, the criterion looks primarily at their concrete environment, such as school, medical care, and relationships.
This reconstruction must also take time into account. A recent relocation may not immediately produce all desired effects, while a formally provisional stay may have become, in practice, the stable center of a person's life. Therefore, departure date, arrival date, housing used, and continuity of stay are not secondary details.
Which court has jurisdiction over the divorce
For applications filed from August 1, 2022 in member states bound by the Regulation, excluding Denmark, Regulation (EU) 2019/1111 sets out the rules of jurisdiction in matrimonial matters. Its Article 3 considers, among others, the habitual residence of both spouses, the last common habitual residence if one of them still resides there, the habitual residence of the respondent, and, in the case of a joint application, the habitual residence of either spouse. The text can be consulted in Regulation (EU) 2019/1111.
The residence of the applicant
The spouse initiating the proceedings may apply to the court of the state in which they have their habitual residence for at least one year immediately preceding the application. The period is six months if the applicant is a national of that state. It is therefore not enough to move shortly before filing: the temporal requirement is in addition to the need for actual and not merely occasional residence.
It may happen that multiple authorities have abstract jurisdiction. For example, the court of the state of the last common residence may have jurisdiction if one of the spouses still lives there, while the court of the other spouse's new country of residence may acquire jurisdiction when the required residence criteria are met. The presence of multiple fora does not eliminate the risk of interference, especially if the other spouse is also preparing an application in another member state.
If a state outside the European Union is involved
When the relationship involves a country not belonging to the European Union, European rules do not exhaust the problem. Before the Italian judge, Law no. 218 of 1995 may also be relevant: Article 32 provides, in addition to general jurisdiction cases, for Italian jurisdiction when one of the spouses is an Italian citizen or the marriage was celebrated in Italy. This title must not be read in isolation, as the Italian rule must be coordinated with any applicable European rules. The reference is available on Normattiva, Law no. 218 of 1995, Article 32.
The possibility of subsequently obtaining effects in the other country depends on the laws of that state and the conventions applicable between the countries involved. An Italian decision does not circulate outside the Union under the same rules provided between member states. This profile assumes relevance before filing, not only after obtaining a ruling.
The law governing the divorce may differ from the law of the court
The competent court does not necessarily apply its own national law. Before the Italian court, in cases presenting a conflict of laws, Regulation (EU) no. 1259/2010, known as Rome III, governs the law applicable to divorce and legal separation. The regulation has universal character: it may also lead to the application of the law of a non-participating state, if this is the law designated by its conflict-of-laws rules. Its scope does not, however, include parental responsibility, maintenance obligations, and the matrimonial property regime.
The agreed choice of law
The spouses may jointly choose the applicable law, but only from among those indicated in Article 5 of the regulation: the law of the state of the common habitual residence at the time the agreement is concluded, the law of the state of the last common habitual residence of the spouses if one of them still resides there at the time the agreement is concluded, the law of the state of nationality of either spouse, or the law of the court seized. It is not possible to freely choose any legal system simply because it appears more convenient.
The agreement must be in writing, dated, and signed by both parties; electronic communication may satisfy the written form if it allows a durable record of the content. In general, the choice may be made or modified up to the time the court is seized; a designation during the course of the proceedings is possible only if the law of the forum so permits. The conditions are contained in Regulation (EU) no. 1259/2010, Articles 4, 5, and 7.
If no agreement exists
In the absence of a choice, Article 8 of Rome III follows a precise sequence: first, the law of the common habitual residence of the spouses at the time the court is seized; failing that, the law of the last habitual residence of the spouses, provided that such residence did not end more than one year before the court was seized and that one of the spouses still resided in that state at the time the court was seized; then the law of the common nationality of the spouses; and finally the law of the court seized. The order of the criteria is mandatory: one does not jump directly to the law deemed most favorable.
The regulation also establishes that the law of the court seized shall apply if the law otherwise designated does not provide for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of sex. However, this protection does not authorize replacing foreign law for every difference compared to Italian law. The diversity of rules does not in itself equate to incompatibility.
Children, maintenance, and assets: divorce does not decide everything
Decisions concerning children are governed by rules distinct from those concerning the dissolution of the marriage. In the European Union, the general rule is the jurisdiction of the court of the member state where the child has their habitual residence at the time the application is submitted. Regulation (EU) 2019/1111 establishes this criterion for applications concerning parental responsibility, which also includes custody and rights of access. The divorce court does not gain jurisdiction over the children simply by handling the couple's crisis.
There are instances in which jurisdiction may be accepted or transferred, but they require strict conditions: a substantial connection of the child with the state concerned, the consent or acceptance of all holders of parental responsibility in the required forms, and compliance with the best interests of the child. It is not sufficient that one of the parents prefers to discuss everything in the same country. Proximity to the child's life remains the central criterion.
A relocation of the child deserves special attention. If it is illicit or occurs without agreed return, the court of the state where the child was habitually resident prior to the removal generally retains jurisdiction until the conditions specifically indicated in Article 9 of the regulation are met. One must not confuse a stable and shared change with a contested removal. European text also governs coordination with the 1980 Hague Convention.
Maintenance also constitutes an autonomous matter. It may be linked to proceedings concerning status or parental responsibility when the application is ancillary and the conditions provided are met, but its jurisdiction does not automatically stem from divorce. The financial claim must be placed within its proper procedural framework, especially when the creditor, the debtor, and the children live in different states.
As for assets, it is necessary to separate divorce from the matrimonial property regime: a house abroad, joint bank accounts, debts, and marriage contracts may require additional rules. In relations falling within Regulation (EU) 2016/1103, this instrument governs jurisdiction, applicable law, and the recognition and enforcement of decisions in matters of matrimonial property regimes. It is not taken for granted that a single proceeding will resolve every financial issue.
Transitional provisions are decisive. The regulation applies to proceedings instituted, authentic instruments formally drawn up or registered, and court settlements approved or concluded from January 29, 2019; the provisions of its chapter on applicable law concern only spouses who have married or who have chosen the law applicable to the matrimonial property regime after that date. Therefore, a marriage celebrated earlier cannot be automatically subjected to the same rules. The date of the property agreement matters as much as that of the marriage. The reference is Regulation (EU) 2016/1103, Article 69.
Two lawsuits in different countries and European lis pendens
If spouses initiate matrimonial proceedings in two different member states, European lis pendens comes into play. The court seized second shall of its own motion stay its proceedings until the jurisdiction of the court first seized is established; where the jurisdiction of the court first seized is established, the second court shall decline jurisdiction in favor of the first. This rule prevents two parallel proceedings from deciding on the same matrimonial bond.
It is not sufficient to establish who first communicated the intention to divorce. Article 17 of the regulation considers the authority seized on the date when the document instituting the proceedings is lodged with the court, provided that the applicant has not subsequently failed to take the steps they were required to take to have service effected on the respondent; in systems where service must be effected before lodgment, the date of receipt by the authority responsible for service is relevant, provided that the document is subsequently lodged with the court. The procedural chronology must be precise, not merely approximate.
The rules just described apply to proceedings before authorities of member states. If a lawsuit is pending in a country outside the European Union, the same solution cannot be automatically applied. It is necessary to distinguish the subject matter of the claim, connections with Italy, relevant procedural rules, and the possibility of recognizing the future decision. Initiating two lawsuits without coordination can complicate the protection of children, assets, and personal status itself.
Before choosing where to take action, it is useful to organize a few essential data points: nationalities, dates and locations of actual residences, date of marriage, any agreement on applicable law, habitual residence of the children, location of assets, and information on previously filed claims. The dates of relocations and filings often guide the answer more than a generic preference for a country.
Frequently Asked Questions
Can I get a divorce in Italy if my spouse lives abroad?
Yes, in certain situations. The foreign residence of the other spouse does not in itself exclude Italian jurisdiction. One of the applicable criteria must be met, such as the last common habitual residence if one still resides there, the respondent's residence, the applicant's residence for the required period, or common nationality. If a non-EU state is involved, the framework requires further coordination.
Can we jointly choose the divorce law?
Yes, but within precise limits. Spouses may choose only a law connected to their habitual residence, the last common habitual residence with the continued residence of one of them, the nationality of either spouse, or the court seized. The agreement must comply with the required forms: an informally expressed preference does not in itself produce the effect of a choice of law.
Does the divorce judge always decide on child custody as well?
No. For parental responsibility, the child's habitual residence at the time the court is seized generally matters. It may therefore happen that the divorce is handled in Italy and the main decisions regarding custody, visitation, and placement are the responsibility of the court of another state. Exceptions and agreements are possible only under the conditions established by European rules.
If I file for divorce first, will I certainly get the trial in the chosen country?
Not necessarily. In relations between member states, the technical moment when the authority is considered seized is relevant, and the applicant must complete the subsequent required steps for service. Furthermore, the court seized first must actually have jurisdiction. A hasty filing before a court lacking the required connections does not secure the choice of forum.
Does divorce automatically determine how to divide assets abroad?
No. Divorce and the matrimonial property regime are different matters. The possibility of addressing them before the same judge depends on the rules of jurisdiction and, for international relations, the law applicable to the property. For a foreign home, local rules on real estate registries, publicity, and third-party protection also matter, and these are not eliminated by the divorce ruling.
A comparison before starting
When multiple countries are involved, the initial choice can affect the entire path. Reconstructing connections and dates first makes it possible to distinguish the divorce proceedings from issues concerning children and assets, as well as to identify any concurrent proceedings. If you need to decide where to file or have already received documents from abroad, you can contact me to frame the relevant steps.