L’efficacia cross-border degli accordi stragiudiziali in materia familiare tra i regolamenti Bruxelles II-bis e Bruxelles II-ter

Abstract

This article deals with the recognition and enforcement within the European judicial area of out-of-court divorce (or separation) agreements resulting from the two procedures introduced in Italy in 2014 by Decree-Law no. 132 of 12 September 2014, prompting a wider use of alternative dispute resolution techniques, both in civil and commercial matters and in family matters. After a short presentation of the new procedures, made available to spouses for divorce (by mutual consent) or separation or modification of divorce/separation conditions, i.e. the negoziazione assistita mediante avvocati and a divorce procedure before the Mayor, as civil register officer, provided by Arts 6 and 12 of d.l. no. 132/2014 respectively, the article examines the difficulties that have emerged in the application to such agreements of the rules on recognition and enforcement of foreign judgments contained in Regulation (EC) no. 2201/2003, so called Brussels IIa. These rules are then compared to the regime on recognition end enforcement newly introduced by regulation (EU) 2019/1111 (so called Brussels IIb), which, as of 1˚ August 2022, will replace Brussels IIa, thus providing for an easier and unquestionable circulation of out-of-court agreements in family matters, also with regards to issues concerning children. The article eventually suggests that the new Regulation set the frame for a special regime of circulation of out-of-court agreements, which mirrors the one already existing for court decisions and allows for a judicial control of the Regulation requirements for the circulation of deeds.