28 Luglio 2019 sguio

News about Family Law in Europe: from the cases to the law


1. The divorce maintenance payment according to Italian and German law.

The essay compares the German system on the divorce maintenance payment with the Italian one, also in the light of the recent and relevant Italian evolution in case law.
On one side, the first legal system obeys to a self-responsibility principle that implies a temporary limitation of the maintenance payments. On the other side, according to the second legal system this payment has a purpose of assistance and realizes a function of equalization and compensation with regard to the patrimonial and income status of former spouses.

(The article can be read in Italian at http://www.rivistafamilia.it/2019/03/28/lassegno-divorzio-nella- prospettiva-italiana-quella-tedesca/)

2. The protection of family life according to the CEDU and the EU Charter.

The essay concerns the important topic of the “protection of the family”, having regard to art. 8 CEDU and art. 7 EU Charter.
Specifically, analyzing the content of both articles, the Author considers that art. 8 CEDU is more applied than art. 7 EU Charter because of the higher protection the first one offers in Family Law.

(The comment can be read in Italian at http://www.rivistafamilia.it/2019/05/07/la-protezione-della- vita-familiare-nella-cedu-nella-carta-ue/)


1. The long-awaited decision of the United Chambers of the Supreme Court (decision no.

12193/2019, June 8, 2019).

The essay addresses the long standing problem of the contrariness to the public order of a foreign provision that declares a person to be the parent of twins born through a surrogacy procedure in a foreign country (so-called intention parent) even in lack of a biological connection to the children. Analysing the relation between surrogacy and the best interest of the child, given the principle of public order, the essay comments the recent decision of United Chambers of the Supreme Court no. 12193/2019.

(The decision and the comment can be read in Italian at http://www.rivistafamilia.it/2019/07/19/la- tanto-attesa-decisione-delle-sezioni-unite-ordine-pubblico-versus-superiore-interesse-del-minore/)

2. The ongoing civil union preclusion to heterosexual couples in United Kingdom. The Civil Partnership Act 2004 and articles 8 and 14 CEDU being incompatible (UK Supreme Court, June 27, 2018 [UKSC32]).
The decision focuses the attention on the important issue of the possibility to enter in a registered partnership by heterosexual couple, that, according to the Civil Partnership Act 2004 (CPA) is not allowed in UK.

In fact, the registered partnership provided for in the CPA is reserved only to the same-sex couples. This provision discriminates heterosexual couples, since it has been pointed out that this constitutes an unequal treatment.
Thus, given the failure to achieve a fair balance between the rights of heterosexual couples and the interest of the community, the Supreme Court declared the incompatibility of the CPA with articles 8 and 14 CEDU.

(The decision and the comment can be read in Italian at http://www.rivistafamilia.it/2019/06/12/la- perdurante-preclusione-delle-unioni-civili-alle-coppie-eterosessuali-nel-regno-unito-lincompatibilita- del-civil-partnership-act-2004-gli-artt-8-14-cedu/; see also http://www.rivistafamilia.it/2019/02/04/le- civil-partnerships-inglesi-un-esempio-discriminazione-delle-opposite-sex-couples/ and http://www.rivistafamilia.it/2019/05/22/matrimonio-civil-partnership-nel-regno-unito-proposito- della-recente-sentenza-2018-uksc-32/)

3. There is no violation of the article 8 CEDU if a Moroccan citizen, who has lived for twenty years in Italy, is expelled because of his social danger (decision of the European Court of Human Rights, February 14, 2019 – Narjis vs Italy).
The case decided by the European Court of Human Rights addresses the denial by the Italian authority to renew the resident permit to a Moroccan citizen based on his social danger.

In particular, the Court hold that the Italian authority denial doesn’t contradict the article 8 CEDU, considering the plaintiff’s criminal recording.

(The decision and the comment can be read in Italian at http://www.rivistafamilia.it/2019/04/01/non- ce-violazione-dellart-8-cedu-un-cittadino-marocchino-vissuto-ventanni-italia-viene-espulso-ragione- della-sua-pericolosita-sociale/)

4. Articles 3 and 8 CEDU force the States to preserve vulnerable people effectively and in adequate time (decision of the European Court of Human Rights, May 1, 2018 – Affaire S.V. vs Italy).
The case concerns to the possible violation of articles 3 and 8 CEDU by Italy with regard to the obligation to preserve vulnerable people.

In the specific case, an Italian woman claimed that the Italian authorities didn’t adopt urgent protection measures to avoid she could be abused.

(The decision and the comment can be read in Italian at http://www.rivistafamilia.it/2019/01/25/gli- artt-3-8-cedu-obbligano-lo-ad-attivarsi-tempi-brevi-ed-modo-efficace-proteggere-le-persone- vulnerabili/)

5. The prohibition to change the first name in the Register Office for a transsexual person who did not undergo sex reassignment surgery is a violation of the right to a private life (decision of the European Court of Human Rights, January 11, 2019 – Affaire S.V. vs Italy).
In this case, the European Court held that Italy violated art. 8 CEDU because it denied the authorization to a transsexual male person, having feminine appearance, to change his first name before the sex reassignment surgery.
The decision is based on the fact that the plaintiff had long since started the sexual transition.

(The decision and the comment can be read in Italian at http://www.rivistafamilia.it/2019/01/24/limpossibilita-un-transessuale-cambiare-prenome- anagrafico-delloperazione-viola-diritto-alla-vita-privata/)

6. The adoption and the interference of the Italian State in family life (decision of the European Court of Human Rights, February 2, 2019, Minervino e Trausi vs Italy).

The case submitted to the European Court regards the issue of identifying the limits for the State to interfere in the family life that, according to the art. 8 CEDU, is possible only in case of strict necessity.
In adoption issues, this strict necessity had been identified in the delay of the social services considering the degraded mode of the familiar and social environment, the unfitness of the parents to educate and the state of health of the youngest child.

(The decision and the comment can be read in Italian at http://www.rivistafamilia.it/2019/07/05/adozione-limiti-allingerenza-dello-nella-vita-familiare/)

7. The filiation relationship between the minor and the intentional mother (European Court of Human Rights, Great Chamber, April 10, 2019, opinion no P16-2018-001)
The French Court has asked the European Court to issue an opinion on the transcription of the birth certificate of a minor born abroad through surrogacy. The sperm donator was a third party. Assuming the importance of the interests involved, the Court’s opinion concludes in the sense of suggesting to the States the use of the most appropriate instrument that permit to define the question.

(The decision and the comment can be read in Italian at

http://www.rivistafamilia.it/2019/04/23/riconoscimento-del-legame-filiazione-minore-la-madre- intenzionale/)


1. The European Parliament’s resolution on intersexual peoples’ rights.

On February 14, 2019 the European Parliament approved the resolution to protect the intersexual people’s right with specific concern with intersexual babies.
The resolution aims to denounce the treatments and surgery for sexual normalization and encourages the States to adopt an adequate legislation, to inform the patient and to provide support for the intersexual children with disabilities.

(The comment and the provision can be read in Italian at http://www.rivistafamilia.it/2019/03/04/la- risoluzione-del-parlamento-europeo-sui-diritti-delle-persone-intersessuali/)


1. For a focus on the New York State reproductive matter, see the comments and the provision athttp://www.rivistafamilia.it/2019/06/03/n-y-s-reproductive-health-act-questioni-interpretative/ andhttp://www.rivistafamilia.it/2019/06/05/n-y-s-reproductive-health-act-contenuti-nello-new-york-si- puo-abortire-allultimo-giorno-gravidanza/