Documento a cura del
Progetto Melting Pot Europa
web site: http://www.meltingpot.org


Home » Sans-papiers » Domande frequenti (FAQ)

Italian citizenship – Can it be issued in spite of divorce and in spite of the fact that application was given in long ago?

23 dicembre 2004

I am Italian and at the end of 1990 I got married in Hungary with an Hungarian citizen. We immediately moved to Italy and we’ve always lived here since then. In the first months of 2002 my wife applied to Italian citizenship, but it has not arrived yet. In 2003 we got lawfully separated in Hungary and we are waiting for divorce to arrive. My wife wonders whether she holds the right to citizenship or not, she in fact would like to come back to Italy

– Law 91/1992 concerns citizenship and its art. 5 provides for that “Foreign or stateless husband/wife married to an Italian citizen can apply to Italian citizenship if she/he has at least regularly lived in Italy for six months, or after three years of marriage if no separation, annulment or suspension of marriage civil effects occurs. In case formal legal separation occurred naturalisation cannot be allowed.”

We need to establish in which terms this provision is valid. In other words we need to understand if separation is ostative to naturalisation only in case it was performed before applying to Italian citizenship or if separation can become ostative in a retroactive way – as it may happen in the case we are studying.
We need to quote another rule of law 91/1992 – art. 8 paragraph 2 – that states that “the issuing of a decree of rejection is blocked when two years passed from the date the application, that came together with the required documents, was given in to qualified offices.”

In our case, since the two years provided for by law expired, we should suppose that this interested lady still holds the right to Italian citizenship because, according to art. 8 paragraph 2, the rejection of her application is by law blocked.

Administration had the chance to differently answer to this person, but after two year institutions cannot anymore deny naturalisation. This aspect was also studied by Cassation Court – sentence 4741 issued July 7th 1993, that announces some fundamental principles that define the nature of citizenship as a consequence of marriage. This Cassation Court sentence sanctions a fundamental principle: once two years have passed since application was given in (of coarse required documents must be correctly presented) administrators cannot anymore reject naturalisation, this takes to this important consequence that is: interested people can appeal to juridical authorities and have citizenship immediately recognised without waiting for an answer from Home Office to come.
This sentence substitutes the effects of a provision that should have naturally come from Home Office.
According to Cassation Court there’s a real individual right and once two years passed, even if there might have been ostative matters, citizenship cannot be anymore denied if and when naturalisation was applied as a consequence of marriage with an Italian citizen.

We still need to see whether when time elapses – if a civil cause does not need to be started off ... and we well know that jurisprudence times are extremely long! - separation that came after the application to naturalisation can be a problem or not.
From this point of view there are no sentences that specifically took care of such an issue. There are two interpretations of the law that were adopted by Council of State (opinion 2482 issued November 30th 1992 and opinion 44 issued March 17th 1993). The interpretation is rather clear and this may explain why there have never been a legal department since then.
Council of State refers to law 91/1992 art. 5 that states that “foreign or stateless husband/wife of an Italian citizen can apply to naturalisation after three years after marriage if no separation or annulment of marriage occurred.” Council of State does not refer to husband/wife that is already living in Italy but it refers to husband/wife that is living abroad and that can apply to Italian citizenship after three years. Changings in marriage occurring after the application to naturalisation are irrelevant.
Therefore according to this interpretation we should say that this Hungarian lady can still lawfully confide in a positive answer to her application and this does not depend anyhow on the fact that she now is in Hungary or that the two got separated.
In addition to this separation might not be considered by Italian authorities since it was formalised abroad.