Wednesday 13 April 2022
Pancrazio Timpano
CTM Avvocati Cozza Timpano & Partners, Milan
pancraziotimpano@gmail.com
The use of double surnames is legal but not customary in the world.
In Italy, children traditionally take their father's surname, except if the child is born outside of marriage ('born out of wedlock'), and in this case, children take the last surname of the parent that first recognises them.
Under current Italian legislation, 'the Man is the holder of a sort of right of precedence over the Woman' – indeed the surname is assigned at the time of the birth declaration for the registration of the newborn in the municipal register of civil status. If the baby is the son/daughter of a married woman, the child will always take the husband's surname, followed by the maternal surname only if the father also agrees; if the woman is not married and the child is recognised by the father at the time of birth, the child will take the father's surname, followed by the maternal surname if both parents agree. If parentage with respect to the father has been ascertained or recognised after the mother's recognition, the child can take the father's surname by adding it to or substituting it for that of the mother. Although there is no explicit rule for the attribution of the paternal surname, the Constitutional Court clarified the following: 'The rule relating to the assumption of the paternal surname by the legitimate child, in the opinion of the aforementioned college, is clearly inferable from the system, as presupposed by a series of regulatory provisions of different cases' (Constitutional Court, Judgment 16/02/2006 No 61).
In 2014, the Strasbourg Court condemned Italy for violation of the European Convention on Human Rights (ECHR). In November 2016, the Constitutional Court declared the law to be constitutionally illegitimate where 'it provides for the automatic attribution of the paternal surname to the legitimate child, in the presence of a different will of the parents' and the European Court of Human Rights of Strasbourg found it discriminatory to preclude the assignment of the maternal surname to children.
According to the ECHR, current Italian law violates Article 9 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the ECHR.
As of March 2022, the Senate of the Italian Republic has been working on a new law to create a new article in the Italian Civil Code where:
'Married parents, at the time of the declaration of the child's birth in the civil register, can assign, according to their will, the surname of the father or that of the mother or those of both in the agreed order. If there is no agreement between the parents, the surnames of both parents are attributed to the child in alphabetical order. The children of the same married parents, born later, bear the same surname attributed to the first child. The child who has been given the surname of both parents can pass on to his child only one, at his choice.'
As regards natural children, it is established that, if the child is recognised by both parents at the same time, the same rules as for married parents must be applied. If, on the other hand, the child is recognised by only one parent, he/she takes the surname of that parent. If the other parent recognises him/her later, the surname of this parent is added to the first, with the consent of the parent and child, if he/she is already 14 years old. In the presence of several children born out of wedlock, the same rule applies to those born within wedlock.
In the hope that the legislative process comes to an end, there is the idea that a double surname will protect children more. Thus, they can find their identity better and it will be more fully reflected. Therefore, from this perspective, it can only derive greater balance and serenity for them. Moreover, it protects them from distortions and family tensions deriving precisely from the pressing desire of one or both parents that a certain surname be transmitted and perpetuated.
In conclusion, the new law that the Italian Parliament is creating seems more respectful of biological laws.
Similar topics
As a legal expert and enthusiast well-versed in family law, particularly in the context of Italian legislation and recent developments, I can confidently provide insights into the concepts discussed in the provided article.
The article primarily addresses the use of double surnames in Italy, exploring the legal framework and the evolving perspectives on surname attribution. Let's break down the key concepts:
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Italian Surname Tradition: The article outlines the traditional practice in Italy, where children typically take their father's surname, except in cases where the child is born out of wedlock. The specific rules for surname attribution are detailed based on the marital status of the parents at the time of the child's birth.
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Precedence of the Man in Surname Assignment: Under current Italian legislation, there is a notion of the "Man" having precedence in surname assignment, and the surname is determined at the time of the birth declaration for the registration of the newborn. The article highlights the complexity of the process, especially in cases of unmarried mothers or when parentage with respect to the father is recognized later.
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Constitutional Court and European Court of Human Rights (ECHR) Involvement: The article mentions the involvement of the Constitutional Court and the ECHR. In 2016, the Constitutional Court declared the existing law constitutionally illegitimate, and the ECHR condemned Italy for violating the European Convention on Human Rights (ECHR), specifically Article 9 (right to respect for private and family life) and Article 14 (prohibition of discrimination).
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Legislative Changes and New Proposal: The article reports on the legislative efforts to amend the Italian Civil Code. As of March 2022, the Italian Senate has been working on a new law that allows married parents to choose the surname of the child at the time of birth registration. In case of disagreement between parents, a specific order and rules for surname attribution are outlined. Similar provisions apply to natural children.
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Benefits of Double Surnames: The article explores the idea that a double surname might offer better protection for children, aiding in identity formation and providing a balance that shields them from potential family tensions related to surname transmission desires.
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Respect for Biological Laws: The conclusion of the article suggests that the new law being developed is more respectful of biological laws, implying a shift towards a more balanced and considerate approach to surname attribution.
In summary, the article navigates through the complexities of Italian family law, shedding light on the historical practices, legal challenges, and the ongoing legislative efforts to adapt to contemporary societal perspectives.
