Nowadays family forms are spreading ever further away from traditional ideology, perhaps under the influence of a profound social change, perhaps for free choice, certainly because it is taking place a period of continuous migratory process that inevitably leads to meeting different cultures. At the basis of the evolution of the concept of family there is, therefore, the transformation of a society, the changes of costume, of values, of the organization of social relations.
Today, in the third millennium, it would be more appropriate to talk about families by accepting a pluralistic perspective that also takes account of civil unions between people of the same sex, who have had their legal recognition with the Law 20 May 2016 n. 76, the so-called Cirinnà law.
If in the past there was a “traditional” family, based on the indissolubility of marriage, on a precise division of roles between spouses and on the centrality of children, over the last 30 years the number of marriages celebrated has dropped considerably, the number of separations and divorces has increased dramatically, as well as the number of factual unions and children born out of wedlock has increased. Today’s social situation is therefore completely different from that governed by the legislator in 1975. The law no. 151/1975, photographed a different family model, and precisely for this reason, in many respects, today it is anachronistic.
Family and emotional ties. Italian legislation between evolution and anachronism
In recent years, it has increasingly imposed a family type not tied to the marriage bond, but organized on the traditional model, within which the same principles of stability and solidarity come within the family so-called legitimate. The process of liberalization of the sexual sphere has in fact made the institutional link less necessary; the evolution of society, costume changes, values, and organization of social relations have prompted the Legislator to translate the claims of those who intend to recognize their sentimental bond, even in a legal sense. In this context, the recent law on civil unions, bearing the name of its rapporteur, Democratic Senator Monica Cirinnà, is a first important step towards the equalization of all forms of love, as it provides for the possibility of entering into a civil union which guarantees couples rights and duties in part similar to those of married couples. However, as part of this evolutionary phenomenon, some aspects of our family law, dating from the 1970s, appear to be anachronistic. We deal with this subject with the notary Matteo Fasano, owner of the prestigious notary office of Salerno.
Notary Fasano, what aspects of our family law are no longer in keeping with the times?
“The discipline of successive relationships in the family, in the light of the evolution of the concept of family, is anachronistic, both as regards the obligation to attribute a substantial share of the “de cuius” patrimony to his closest relatives, children and spouses, both in relation to the prohibition of successive patents, pursuant to art. 458 cc, for which nothing is any convention with which one has its own succession. In practice, the Legislator wanted to circumscribe the modalities of hereditary vocation to the testamentary and legitimate one, excluding the conventional source”.
Can you tell us some examples to make his statement clearer?
“Today, a parent must leave a share of his or her estate to each child and spouse, even if the child is insensitive to the needs of the parent, neglecting to assist him, missing the least form of affection and showing himself totally hostile to him; the same goes for the spouse. Probably the no-automatic assignment of rights to the latter would result in an improvement in the affective relationship. Still, with the present successive legislation nobody can renounce the inheritance during the life of the “de cuius”, as this is expressly prohibited by Article 458 of the Civil Code. This situation creates countless cases of discomfort. The typical hypothesis is the obstruction that the children do to their parents if they, already divorced by the other parent, intend to remarry, by the contrary to accept that a stranger participates in the family patrimony. In such cases, if it was possible to limit the economic aspect, for example, only retirement reversibility, allowing the future groom to renounce the rest of the legacy, it would surely maintain family peace and, above all, would triumph the true feeling”.
Returning to civil unions, is it necessary to draw up a will to recognize the successor rights of your partner?
“Absolutely. Unlike marriage, where if a testament is not drafted, it is the law that governs the devolution of inheritance, with specific succession rights in favor of the deceased’s spouse, in the case of civil unions the will is the only instrument available to the partner in order to be able to attribute successor rights to his/her partner. In the absence of a will, the co-worker will not be entitled to any right to fallen property in succession, which will be relinquished to relatives of the deceased until the sixth grade. And this is extremely unfair considering the evolution of the family concept”.