An Italian woman is being prosecuted by the Police near Turin for having married three times in 7 years with the sole purpose of favoring the husbands’s illegal acquisition of the rigth to residency and to Italian citizenship.
This reminds the same scenario that was pictured in the 1990 film Green Card,a romantic comedy starring Gérad Depardieu and Andie MacDowell, where an American woman enters into a marriage of convenience with a Frenchman so that he can obtain a green card and remain in the United States.
Unfortunately there have been many cases in Italy (but also in other EU countries) of people arrested or prosecuted for arranging marriages in exchange of money, only for the purpose of facilitating the non EU spouse to obtain residency and citizenship. Recently, the Mayor of Riace, a small village in the south of Italy, was placed under house arrest and banished from the village after he was accused of arranging “marriages of convenience” to skirt immigration regulations.
Italian citizenship can be acquired by marriage or civil union under the following conditions:
1) The spouse or partner in a civil union of an Italian citizen who has registered residenza for at least 2 years and holding a valid permesso di soggiorno, can apply for Italian citizenship after 2 years from the date of marriage or civil union, which is reduced to 1 year if the couple has children (also adopted);
2) The spouse of an Italian citizen who resides abroad can apply for Italian citizenship after 3 years from the date of marriage or civil union, which is reduced to 18 months if the couple has children.
Sometimes, marriages of convenience are labelled as bogus or sham but this is, strictly speaking, not correct. Unlike marriages of convenience, which are formally valid, bogus or sham marriages are invalid or entirely fictitious. Bogus marriages may involve forgery or the misuse of documents relating to another person.
A marriage should be considered “of convenience” when:
(i) the conduct must be artificial in the sense that it is a feigned imitation, lacking naturalness, sincerity or spontaneity. The abusive conduct is linked to the absence of intention of the married couple to create a family as a married couple and to lead a genuine marital life. The abusive character of marriages of convenience is represented by mala fide of the spouses prior to and at the moment they enter into the marriage;
(ii) the notion of “sole purpose” should not be interpreted literally (as being the unique or exclusive purpose) but rather as meaning that the objective to obtain the right to residency or citizenship must be the predominant purpose of the abusive conduct. A conduct aimed at abusively acquiring more than one unfair advantage (such as, in addition to the right of residence, a tax advantage) may also be considered as abusive;
(iii) abuse should be distinguished from fraud. Fraudsters seek to break the law by presenting fraudulent documentation alleging that the formal conditions have been duly met or which is issued on the basis of a false representation of a material fact concerning the conditions attached to the right of residence.
Genuine marriages are characterised by the intention of the married couple to create together a durable family unit as a married couple and to lead an authentic marital life. Marriages of convenience are characterised by the lack of such an intention.
In principle, marriages legally entered into anywhere in the world must be recognized. However, Italian law does not recognise marriages conflicting with fundamental interests of its society and principles of legal order. In particular, polygamous marriages are not valid for the purpose of obtaining a family permit (Art. 29/ter Decree 286/1998) but have been recognized for specific purposes, such as inheritance law (Court of Cassation n. 1739/1999).
Italy does not not have specific provisions to curb and criminalize marriages of convenience.
Art. 123 Italian Civil Code set forth that a marriage is null and void when the spouses do not fulfil their obligations or do not exercise the rights connected to the marriage.
Marriages of convenience are likely to constitute crimes of false declarations before a public official (art. 495 Criminal Code) and aiding and abetting unauthorised immigration (art. 12 Decree 286/1998).
A family reunification request can be denied when it is proven that the sole purpose for the marriage was to allow the person to enter and reside in the territory of the State (art. 29/9 Decree 286/1998). Similarly, the application for a residence permit or its renewal is rejected, or the residence permit is revoked, when it is proven that the marriage was celebrated only to allow the non EU spouse to reside in Italy (art. 30/1bis Decree 286/1998).
The residence permit is immediately revoked when it is established that the marriage was not followed by ‘actual cohabitation’, with an exception made in cases where children were born from the marriage (art. 30/1bis Decree 286/1998).
The Court of Cassation added that the validity of a residence permit is subject to the existence not only of the permanent cohabitation of the spouses, but also to the non EU spouse residing in Italy (n. 25027/2005). On other occasions, however, the Court has adopted a more flexible approach justifying the situation of a spouse who, for example, lives abroad for work reasons (n. 13165/2005).
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Documents & Reports
Obstacles to the right of free movement and residence for EU citizens and their families: Country report for Italy (EU Parliament — Policy Department for Citizens’ Rights and Constitutional Affairs, 2016)
Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens (EU Commission Staff Working Document, 2014)
Marriages of convenience and false declarations of parenthood (EU Commission — European Immigration Network, 2012)
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Disclaimer
The information provided on this article (i) does not, and is not intended to, constitute legal advice; (ii) are for general informational purposes only and may not constitute the most up-to-date legal or other information (iii) this website may contain links to other third-party websites. Such links are only for the convenience of the reader; (iv) readers should contact their attorney to obtain advice with respect to any particular legal matter.
Attorney at law.
One of the leading corporate immigration lawyers in Italy. Admitted to the Milan Bar Association (1988) and to the Taipei Bar Association (2016), a member of the American Immigration Lawyers Association (AILA) and an accredited partner of Invest in Tuscany.
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