Posted by on Jul 6, 2019 in LEGAL UPDATES

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Descendants of female Italian citizens who left Italy in the late 19th century and the early part of the 20th century have been hampered in their quest for an Italian passport by the 1912 law on Italian citizenship. 

The Italian Law (Legge no. 555 of 1912) provided that an Italian woman would automatically lose her Italian citizenship either on marriage to a foreign national husband or if her Italian husband naturalised, ie took up a new nationality having emigrated from Italy. The Italian wife was deemed to automatically acquire the new nationality of her husband, irrespective of her actual wishes.

There may only have been a possibility for the woman to reacquire Italian nationality (see Article 9 of Law no. 55) (1) if she worked for the Italian state, or (2) after one year if she returned to reside in Italy and renounced her new citizenship, (3) after two years of living in Italy again, or (4) after two years of moving to a new country as long as she did not apply for citizenship of that country.

According to Law no. 55/1912, a child could only take the nationality of their father (unless he was unknown).

Article 1:

A person is born an Italian citizen where:

  • The Father is Italian
  • The mother is Italian, where the father is unknown or does not hold citizenship of any country, or if the child does not acquire the citizenship of the foreign father according to the law of that country
  • Neither parent hold citizenship are unknown or do not hold citizenship of any country

Abrogation of the 1912 Law after the Italian Constitution 1948

In recent years there have been major developments in the law of Italian citizenship as regards married women, as a result of:

  • the Italian Constitution of 1948,
  • the 1975 Italian Family Reform Law (Legge n. 151/1975) and
  • the 1983 Law on the acquisition and loss of Italian citizenship (Legge n. 123/1983).

These legal developments now have retrospective effect on the automatic naturalisation of a female Italian citizen since 1912. It is now recognised by the Italian courts that a woman did not automatically lose her Italian citizenship at the moment of marriage or her husband’s naturalization, as she did not expressly renounce this herself by her own free will.

This development in the law began with the decision of the Italian Constitutional Court n. 87 of 9th April 1975, which declared that specific articles of the 1912 law were in violation of the Italian Constitution, in that they led a woman to automatically lose her Italian citizenship independent of her wishes on marriage to a foreign national. It was pointed out that in 1912 the woman had been considered as having inferior legal status to a man, which was in contrast with the concept of the 1948 Constitution which for the first time had recognised the equality of the sexes before the law. The 1912 law was therefore deemed to have created an unjustified and irrational disparity of treatment between two spouses, by not requiring any expression of agreement by the wife to lose her Italian citizenship.

Immediately following this 1975 court decision, the 1912 Italian law was amended. A provision confirming that a woman would not in future lose her Italian citizenship, even when her Italian husband acquired a new nationality, was inserted into the 1975 Family Reform Act, Art. 25, which amended the Italian Civil Code, adding Art. 143 ter as follows:

“a wife shall retain her Italian citizenship, in the absence of any express renunciation, even where by the effect of her marriage or the changing of nationality by her husband she assumes the citizenship of a foreign country.”

Article 219 of the new Family Law of 1975 also provided that any woman, who by effect of marriage to a foreign husband, or the acquiring of a new citizenship by her husband, had lost Italian citizenship, could reacquire this (or in effect be recognised as still being Italian citizens) by making a declaration.  All rules in the 1912 Law which were considered incompatible with the Constitution, were therefore considered annulled.

It was subsequently confirmed by the Italian Constitutional Court (decision n. 30 of 1983) that Article 1 (1) of the 1912 law was in violation of the Italian Constitution, in that it did not allow for a child of an Italian wife, who should have been allowed to retained her Italian citizenship even after marriage to a foreign husband, to claim Italian Citizenship via the maternal line.

It therefore became possible at the moment of this court decision in 1983  for any child born after 1st January 1948 of an Italian mother to claim that they had acquired Italian citizenship from her.  This was ratified by new legislation the same year (Legge n. 123 /1983).

Initially this was not recognised as having any retroactive effect to births prior to the date of the Constitution in 1948. The citizenship law n. 91/1992 also confirmed this fact of no retroactive effect on children of previously Italian mothers born prior to 1948.

However, in a landmark decision in 2009 the Court of Cassazione (case no. 4466 of 25/2/2009) ruled that a person applying for Italian citizenship by descent could prove the transmission of Italian citizenship down through the maternal family line even via female ancestors born before 1st January 1948.

This judgement referred to and upheld the principles of the Convention of New York of 1979 against discrimination against women in citizenship matters.

The Cassazione held that citizenship was a “status” which was permanent and was not subject to expiry unless expressly renounced, so should be recognised at any subsequent point in time, even after the coming into force of the 1948 Constitution (and even where the ancestor had since died).

The Civil Court of Rome now accepts and has approved many petitions on these lines. The 2009 decision and later caselaw has not been ratifed yet by legislation (it was actually proposed in the new Immigration and Security Law no.113 of 2018, but then removed from the draft legislation before Parliament approved it).

Until such time as legislation is put in place,  an application must still be made via the Italian civil court in Rome for the recognition of Italian citizenship by ancestors of Italian women born before 1948.

For further information please see the following page on Applying for Italian citizenship by descent or contact Aleksandra Broom and Charlotte Oliver for advice on your particular family history.

 

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