Private Autonomy and Family Public Policy in Italy

Abstract

The article deals with the general clause of public policy in Italian family law. It analyses the recent case-law application of both international and internal public policy in the Italian legal system. Nowadays, public policy is used for protecting and developing the fundamental rights of individuals in the EU space. However, the content of this general clause is debated, and there are several theses (e.g. constitutional, discretionary, globalized public policy). Adhering to one concept rather than another has different consequences. Think, for example, of the recognition of double paternity acquired abroad through a surrogacy contract. Moreover, family public policy can be viewed both as public policy of the family (a general clause that protects the family rather than its members) and public policy in the family (a general clause that protects the fundamental rights of the individuals rather than the family). Subsequently, the article analyses prenuptial and postnuptial agreements in Italy. Italian jurisprudence considers both agreements invalid because they are in contradiction to public policy. The article suggests that families can use the contractual instrument. However, personal and patrimonial clauses in domestic family agreements need to be compatible both with the public policy of the family and public policy in the family. Ultimately, public policy becomes a tool attributed to ordinary judges for guaranteeing widespread constitutional legality.