Citizenship as a Connecting Factor in Private International Law for Family Matters

The citizenship, well-known as a factor for inclusion or exclusion in the relationship between citizens and foreigners as to the ownership of rights, historically plays a key role in family matters and, more generally, in judicial litigations with foreign elements related to civil statute of persons. This approach has also suffered significant understatements during the evolution of private international law: within marriage fields, the dominance of the citizenship as a connecting factor was gradually reduced by the emergence of criteria related to the domicile, that have been joined to this one or, in some cases, have taken its place. The sunset of citizenship as a primary connecting factor in the field of civil statute, also debated in Italy with reference to a possible reform of the national law (l. n. 218/1995), has found a definitive consecration in the EU norms, where among the criteria defining jurisdiction set out in Regulation (EC) No. 2201/2003, only two refer to that. The trend is in the direction to add more spaces for a choice by the parties. This is evident in the new discipline of Regulation (EU) No. 1259/2010: citizenship is still considered a “close connection”, then there is no need to try other connections with the State where the court is seized or whose law is agreeable to be applied. That is an evidence, it seems, that the citizenship of a Member State of the Union, therefore EU citizenship, are sufficient connecting factor for establishing jurisdiction. However, if the nationality of one of the spouses is a connecting factor, the common nationality in the field of the applicable law is subject only to the lack of connecting factors such as habitual residence, but could also be the place of the marriage. Here, then, the citizenship as a connecting factor loses the strength of its past and becomes an alternative criterion, or subsidiary, leaving other connecting factors closer to the situation de facto. Referred to different subjects, however, the habitual residence is expected to have an essential role with regard to the recent Regulation (EU) No. 650/2012 in matters of succession. The EU concept of habitual residence is different than the residence as defined by the second paragraph of Art. 43 of the italian Civil Code - which places it in “the place where the person has habitual stay” - and approaches, in essence, the concept of domicile, that the paragraph I of the same article 43 places where the person “has established the headquarters of his business interests”. At the national level, in other words, an update of the italian rules of private international law could usefully lead to the replacement of the connecting factor of the citizenship with that of habitual residence, in line with the EU policies, thus overcoming the limitations of the connecting factors again strongly linked to the “territoriality principle”. In this way, the common italian PIL would align the solutions of uniform PIL, in place or in process of being adopted, depending on the field.