The Court of Cassation has again confirmed (Decision No. 11012/21) the nullity of the agreements by which the spouses intend to settle future property issues in view of the divorce in the context of the separation. The Supreme Court pointed out the indispensability of rights arising from marriage under Art. 160 c.c. (Italian Civil Code), even if the agreements are intended to protect the rights of the economically weaker spouse.

This decision represents a step backwards in comparison to other previous decisions that were in favour of the agreements made between the spouses in view of the divorce in the context of the separation, as they provided for a relative nullity that only the weaker spouse could invoke.

Italian case law is therefore not inclined to recognise the autonomy of the spouses to regulate their own financial affairs in the context of separation with a view to divorce.

In Germany, on the other hand, agreements between the spouses to resolve the marital crisis quickly and amicably with a view to divorce are permissible and are also applied concretely (Trennungsfolgenvereinbarung). Prenuptial agreements are also a useful means of regulating property law issues and the consequences of a possible separation at the very beginning of the marriage. These prenuptial agreements are becoming increasingly popular among newly married couples.

Italian citizens who have their habitual residence in Germany can circumvent the obstacle of nullity established by Italian law by making a choice of law in favour of German law.