I do not divorce but I want to remarry: risk of suffering consequences?

“Good morning Lawyer, my name is Anahita. I am originally from Iran but for many years I have lived in Italy for work. In 2015 in Florence I married an Italian man in a civil ceremony, Marco. Unfortunately, due to our misunderstandings, we separated after a couple of years. Very tried since the end of the relationship, I felt the need to take some time and return to Iran to my family. In Tehran, my hometown, I rediscovered love again when I met Amir and shortly after we got married in Iran with religious rite according to the Islamic faith without transcribing the marriage in Italy. Today, for work reasons, I am back in Italy, but I hope that soon Amir will be able to join me and move here. When I returned to Italy Marco asked me for a divorce. It was at that moment that I learned that in Italy it is necessary to divorce before being able to remarry. Now I’m very worried: can I suffer consequences for marrying Amir without first divorcing Marco? ”

Dear Ms. Anahita, your concerns are understandable. Your case could, in fact, fall within the figure of bigamia, a form of polygamy, and precisely the condition of someone who is married to two different people at the same time. In Italy, as well as in most modern legal systems, bigamy is not only not allowed because it is illegal in the civil field, but it is also considered a crime that triggers criminal responsibility.

In the criminal code, the bigamy is disciplined among crimes against the family and, in particular, in those against marriage. This is because the Italian legal system believes that bigamy offends the family and its morals. In particular, article 556 of the Criminal Code governs two figures of bigamy: proper bigamy and improper bigamy. The first is the condition of those who “being bound by marriage having civil effects, he contracts another one, although having civil effects“. The second, on the other hand, is the condition of those who, “despite not being married, he enters into marriage with a person linked by marriage having civil effects “. The law punishes this offense with imprisonment from one to five years, except in the presence of aggravating circumstances resulting in an increase in the sentence (i.e. the hypothesis where the guilty person has misled the person with whom he marries, making him believe that be of free marital status). From 2017, the offense is also foreseen for civil unions contracted by persons of the same sex, as for the purposes of the law, civil union is equivalent to marriage. Therefore, a married person who constitutes a civil union also commits a crime of bigamy and vice versa the civilly united person who contracts a (heterosexual) marriage, as well as someone who is simultaneously linked by two civil unions.

Yours, Madam, however, is a a completely different case from that described by the criminal code. It is, in fact, the so-called bigamy in fact, a case different from real bigamy punishable by law and in which many people of Islamic faith like you incur in our country. If apparently, your hypothesis would seem to configure a crime of bigamy because she is only separated from her first husband Marco and not yet divorced and, therefore, according to Italian law she could not yet remarry with another man, concretely the bigamy she has incurred is only “in fact”.

The second marriage contracted by you with Amir in Iran, according to the Islamic religious rite only, in fact, not having been transcribed, as you have specified, it does not produce effects under Italian law; therefore, it has no relevance for the purposes of configuring criminal responsibility for the crime of bigamy. According to the Italian legal system, you continue to be married only to your first husband Marco and at the same time your second union is valid only for the Islamic religion. This means that if you want the union with Amir to be recognized by Italian law, you must first formalize the divorce from your first husband and then transcribe the religious marriage with Amir.

To answer your question, therefore, definitely the consequences for your case will not be criminal and there will probably be no civil consequences either. Only in one case, in fact, very different from yours and much more serious, in which a wife had contracted a religious marriage with an Egyptian citizen in the constancy of another marriage producing civil effects under Italian law, and therefore not yet separated from her first husband, the Court of Cassation, with sentence no. 23010 of 2019, called to decide on the separation, did not provide for the assignment of the marital home and the maintenance allowance for the woman. In any case, however, my suggestion is to consult a lawyer.

* Bernardini de Pace Law Firm


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