Nuptial donation in Italian civil law

Within the framework of Italian civil law, a specific legal construct of donation emerges in connection with the celebration of marriage: the nuptial donation (donazione obnuziale), governed by Article 785 of the Civil Code. This institution has ancient roots, dating back to Roman law, where it served to ensure a widow’s allowance in the event of the husband’s death. In contemporary legal doctrine, however, the _nuptial donation_ has largely lost its original protective-patrimonial function and, according to the prevailing scholarly opinion, now serves as a means of supporting and promoting the creation of a new family unit.

Nature and formation of the nuptial donation

The defining characteristic of this type of donation is that it is made in view of a future and specific marriage—namely, a marriage which has not yet been celebrated at the time of the donation but is clearly identifiable. According to the dominant view, both future spouses must be named in the act of donation. A minority view considers it sufficient to mention only one of the engaged parties. In all cases, the law requires that the donation be executed by public deed.

The nuptial donation is perfected without the need for acceptance by the donee. This peculiarity, which finds its historical antecedent in Article 1062 of the repealed Civil Code and the Napoleonic Code, has sparked considerable doctrinal debate regarding the legal nature of the act. One school of thought denies the contractual nature of the donation, treating it instead as a unilateral act perfected through the donor’s declaration alone. An alternative view considers it a unilateral contract with obligations borne solely by the donor, perfected through the donor’s proposal and subject to the donee’s right of refusal. However, the absence of reference to Article 1333 of the Civil Code (which concerns unilateral proposals with binding effects) generates interpretive uncertainty.

Although it is legally effective upon execution, the actual effects of the donation are suspended until the marriage takes place. Scholars are divided over the legal classification of this condition: some regard it as a factual condition (condicio facti), subject to the donor’s discretion, who could instead opt for a standard donation; others view it as a legal condition (condicio iuris), operating ex lege when the donation is made in contemplation of marriage. A minority position denies the conditional nature altogether, asserting that the marriage constitutes the causa of the donation, shaping and justifying the donor’s liberal intent.

Effects and legal consequences in case of marriage annulment

One of the central issues surrounding this institution concerns the fate of the nuptial donation in the event of annulment. Article 785 of the Civil Code establishes that annulment results in the nullity of the donation. On this point, scholarly opinion is again divided. One interpretation assigns to the term "nullity" its technical legal meaning, implying the donation is void ab initio, with retroactive effect. Another interpretation argues that the legislator used the term improperly, actually intending to indicate mere ineffectiveness. Nevertheless, case law tends to follow a literal interpretation, attributing a technical meaning to the term.

By contrast, divorce does not result in the nullity of the nuptial donation, since it occurs after the celebration of a valid marriage and does not affect the genetic moment of the donation. However, the parties may have agreed to treat divorce as a resolutive condition. The same principle applies to legal separation.

The law also protects the rights of third parties acting in good faith, stipulating that acquisitions made between the celebration of the marriage and the final judgment of annulment remain valid. Similarly, the good-faith spouse is entitled to retain the benefits or fruits received prior to the annulment claim.

With regard to children conceived or born during the marriage, the law provides that the donation remains effective only in relation to those for whom the effects of a putative marriage apply. This provision has been criticized for being discriminatory, as it disadvantages children born of unions declared null due to serious legal impediments such as bigamy or incest.

Parties involved and subject matter of the donation

A nuptial donation may be made by third parties, by one fiancé to the other, and, in certain cases, in favor of future children. In this last scenario, however, the donation may only be made by a third party; if made by a parent, it would instead fall under Article 784 of the Civil Code. The legislator has introduced exceptions to the general rules on capacity to donate: an interdicted person may make donations on the occasion of their descendants' marriages (with judicial authorization), and an incapacitated person may do so with the consent of their curator and approval of the guardianship judge.

The case of minors is more controversial: Article 774, in its original version, recognized a minor’s capacity to donate within the context of a marriage contract. However, the reform of family law removed any explicit reference to this issue, raising the question of whether the nuptial donation now qualifies as a marital agreement under Article 165.

As for the subject matter, the donation may involve any real right, including usufruct rights. It is generally accepted that periodic donations also fall under the scope of Article 785. Case law has validated instances such as expenses borne by a parent for the purchase or renovation of a property intended for the future spouses.

Indirect nuptial donations and gifts between fiancés

For a long time, case law recognized the existence of indirect nuptial donations, such as financial contributions from a parent for renovating a property belonging to the future daughter-in-law or furnishing the marital home. However, the Supreme Court later rejected this view, holding that the nuptial donation, as a formal and typified legal transaction, cannot be executed through indirect acts of liberality.

It is also essential to distinguish the nuptial donation from gifts between fiancés, regulated by Article 80 of the Civil Code. These have a different nature: they can be revoked within one year in the event of engagement breakup or the death of one of the parties. According to the prevailing view in both doctrine and case law, they constitute customary gifts, not subject to formal requirements and producing immediate effects.

The nuptial donation represents a unique legal concept, positioned between tradition and modernity, which today serves to foster the formation of new family units. Although extensively regulated by Article 785 of the Civil Code, it raises numerous controversial issues, which continue to provoke doctrinal and judicial debate—particularly with respect to its legal nature, the effects of marriage, and the fate of the donation in the event of annulment. This is why consulting professionals such as those at Agenzia delle Successioni is advisable in order to avoid errors.