14 June 2021

by  Karina Zabrodina

Article 27 of the Regulation (EU) 2016/1103 states that the law applicable to the matrimonial property regime pursuant to such Regulation determines the effects of this regime on the legal relations between spouses and third parties. However, the following Article 28, by way of derogation from that provision, states that the law applicable between spouses shall not have effect against third parties, unless the latter were aware of it, or were required to be aware of it, exercising due diligence. Hereafter, the same Article lists some of cases in which the knowledge by third parties of the applicable law is deemed presumed. At this point consider the following hypothetical case.
Two spouses, French husband and Italian wife, get married in Italy and habitually reside there. Having agreed on no specific choice on the law applicable to their property regime and in the absence of the choice of the separation property regime, their property falls under the legal regime of the communion property, as provided for by Italian law. After marriage, the spouses decide to set up the patrimonial fund pursuant to Article 167 of Civil Code with authentic instrument in which they confer a real estate of their property located in Italy. This inevitably entails a change in the legal regime of the existing communion between the two spouses, a change which the Italian legislator,
for the purposes of disclosure and possible enforceability to third parties, makes subject the burden on the spouses to make a note in the margin of the marriage act (Article 163,
paragraph 3 of Civil Code), moreover, as a matter of immovable property, also to the transcription of the instrument of incorporation of the fund in the real estate registers
pursuant to Article 2647 of Civil Code. Meanwhile, a foreign company whose husband is surety for large sums, goes bankrupt. Therefore, the creditors decide to take legal
action pursuant to Article 2901 of Civil Code through the revocation action in order to obtain the declaration of the ineffectiveness with regard to them of the act with which
the fund was constituted as considered prejudicial to the satisfaction of their reasons.
It should be pointed out that we are clearly faced with one of the assumptions of presumption of knowledge required by Article 28 of Regulation (EU) 2016/1103.
Therefore, pursuant to paragraph 2, letter a), point iii) of that provision, the spouses have the possibility to rely, in any dispute with third-party creditors, the Italian law applicable to their regime, since it is more specifically the law of the State in which it is situated the immovable property that is the subject of the fund. It should, however, be stressed that such a possibility does not constitute a guarantee of success for the spouses in any dispute with third parties, since, according to the particularities of the individual case, the legal system offers specific protection both to the claims of creditors and to the reasons of the spouses.
In particular, the restriction of destination that is laid down within the assets of the patrimonial fund means that they are not liable to be attacked by debts which the
creditors knew to have been contracted for needs outside the family needs (Article 170 of Civil Code). It follows that the execution on such property can take place only if the
reason of the obligatory relationship has a direct bearing on the needs of the family. In the present case, therefore, since it is a debt arising within the undertaking or in any case
within the professional sphere of the husband, unless it can be clearly shown that it was contracted to meet the needs of the family, the immovable property transferred to the
fund may not be executed by third-party creditors.
In the face of such provision protecting the interests of the spouses, however, the Civil Code also provides for an instrument to protect creditors which, under certain
conditions, includes the removal of the limits to the enforceable actions that the Article 170 of Civil Code circumscribes to the debits contracted for the needs of the family (on
this point Cass. civ. n. 2904 of 2021). More specifically, creditors have the possibility to act by means of ordinary revocatory action provided for in Article 2901 of Civil Code to
request the declaration of ineffectiveness in their regard to the acts of disposition of assets with which the debtor affects their reasons. It will, however, be necessary to
verify whether the debtor was aware of the damage that could have been caused by the act or whether it had even been maliciously ordered in order to prejudice the
satisfaction of the creditor’s reasons. Therefore, in the present case, resulting in the constitution of the patrimonial fund with the respective transfer of the property in
constancy with the bankruptcy of the company, it is entirely plausible to envisage the positive outcome of the revocatory judgment promoted by the creditors in order to
obtain the declaration of ineffectiveness of the fund after the demonstration of the conditions of prejudice referred to in paragraph 1 of Article 2901 of Civil Code.
A further aspect which should be considered in order to better understand the rules governing the enforceability by spouses of the law applicable to their property regime and at the same time to provide for the respective protection mechanisms which the Italian legal system reserves to third-party creditors, relates to the burden of recording any changes to the property regime after marriage in the margin of the marriage act. The above-mentioned Article 163, paragraph 3 of the Code states in this regard that the agreed modifications of the property regime have effect in respect of the third parties, and therefore are enforceable, only if a note has been made in the margin of the marriage act, by making it logical to deduce that they may be irrelevant in the absence of such a note. It is therefore necessary to ask whether the failure of the spouses to comply with this remark may in some way preclude third party creditors from having the
revocation action and therefore from the possibility of obtaining the declaration of ineffectiveness of the instrument of incorporation of the patrimonial fund.
The Supreme Court of Cassation recently intervened on the matter. Specifically, with the ruling Cass. civ Section VI n. 6450 of 2019, the judges have highlighted how the
system of disclosure of marriage conventions referred to in Article 163, paragraph 3 of the Italian Civil Code works as a guarantee for spouses who can, in this way, make the
conventions opposable to third parties. However, such a guarantee may not be used by the spouses as a means of blocking the revocation action against the instrument of
incorporation of the fund. In other words, the fact that the act is not enforceable cannot be of benefit to the debtor spouses, who could otherwise avoid any dispute by the
creditors.
In the Italian legal system, in fact, the revocation action does not include among its constituent facts the fact that the act is actually enforceable against creditors, but, on the
contrary, its practicability presupposes only that it has been carried out and that it has caused a damage to the creditor claims through the removal of the property from the
debtor’s assets. It follows that it is irrelevant that the act cannot be applied to third parties if it results from the failure to note in the margin of the marriage act.
Furthermore, in a subsequent judgment, the Court stated that the instrument of constitution of the fund, once it is perfected by the declarations of will expressed by the
two spouses, may well, even before its record in the margin of the marriage act, be prejudicial to creditors. As soon as the assets are placed in the fund, this is in itself
sufficient to make it more uncertain and difficult for creditors to obtain compulsory satisfaction of their reasons, and therefore it alone is sufficient to concretize the so
called eventus damni necessary for the positive esperibility of the revocatory action (Cass. civ. Section III n. 25853 of 2020). In the present case, therefore, if the spouses had not
made the note relating to the establishment of the fund, this circumstance cannot be used by the spouses to prevent the revocation action brought by the creditors.