It often happens that, mostly because of political or religious matters, marriage among foreign citizens or among an Italian and a foreign citizen is very difficult because some fundamental certificates to have banners published are missing.
Civil code art. 116 concerns marriage and the publishing of banners. In order to do this a series of documents are needed:
– having banners published. This is a simple formality which has the aim of letting everyone know that two people want to get married. Ten days are the minimum banners need to be public before marriage can occur.
In order to publish banners people aiming to get married need to give some certificates in: birth certificate and the so called authorization to marriage when foreigners are to marry. Authorization to marriage is a certification by the person’s country of origin authorities, it only refers that the person can get married without any impediment. When both of the two certificates are translated and legalized banners can be published.
Many foreign citizens do not hold the authorization to marriage, this often happens because of political or religious matters.
What is to happen to them?
The Civil state officer has to refuse to publish banners because required documents are missing. Interested people have to then refer to court in order to have their marriage accepted.
A Constitutional Court sentence recalls of the principles so far treated by magistrateship.
A question raised by Rome Court is being referred to. Rome Court shows on this matter that art. 116 can be considered unlawful. Civil code rule doesn’t provide for that in case certificates are missing a substitutive paper cannot be given in. According to Rome court art. 116 doesn’t allow to give in other proving statements. Court therefore raised the unlawfulness problem on art. 116 and Constitutional court rejected the istance with the interpreting order n. 14 January 30 2003.
The order summerizes magistrateship point of view on this issue and in case authorization is in the country of origin denied on political or religious basis an appeal to court can easily occur according to civil code art. 98.
Constitutional court rejection underlines that there is no need to abrogate civil code art. 116 in order to solve such problems but appealing to court as provided for by law is perfectly sufficient.
Law 218/95 art. 16 concerning international private right provides for that Italy won’t recognize as valid any measure coming from another state and being opposite to fundamental Italian juridical rights.
In case the authorization to marriage is rejected an appeal can be presented to court on basis of civil code art. 98 and court can be asked to verify that no impediments to marriage occur.
Future wife and husband hold the interest to have it shown that no impediments exist in order to have the court oblige officers to publish banners even if the authorization is missing.
This procedure is broadly accepted and it is quite quick.