In its decision no. 131/2022, pronounced on 31 May 2022, the Italian Constitutional Court declared that the Italian legal system rules that automatically assign the father’s surname to a child were unconstitutional.
Unlike in other EU states where, for a long time now, the mother’s surname can already be assigned to children, either alone or in addition to the father’s surname, in Italy, until the above ruling was made, the Civil Code rules stated that children must be assigned the paternal surname.
With regard to children born out of wedlock, this rule is set out in Article 262, first paragraph, of the Civil Code, which provides that a child assumes the surname of the parent who recognised him or her and, if recognised simultaneously by both parents, the child assumes the father’s surname.
Specifically, on the one hand the Court ruled on the legislation that does not allow parents to agree to assign the mother’s surname only to the child and, on the other hand, on the legislation which, in the absence of agreement, imposes the father’s surname only instead of the surname of both parents.
The Communication and Press Office of the Constitutional Court announced that the rules in question had been declared constitutionally illegitimate pursuant to Articles 2, 3 and 117, first paragraph, of the Italian Constitution, the latter in relation to Articles 8 and 14 of the European Convention of Human Rights.
Therefore, the rule automatically assigning the father’s surname no longer applies.
Based on the principle of equality and in the interests of the child, both parents must be allowed to choose the child’s surname, which is a fundamental element of personal identity.
Therefore, the rule as from today is that the child takes the surname of both parents in the order agreed by them, unless they jointly agree to assign the surname of one of them alone.
If there is no agreement on the order in which the respective surnames are assigned, the judge can intervene in accordance with the provisions laid down by law.
The Court therefore declared the constitutional illegitimacy of all rules which provide for the automatic assignment of the father’s surname in relation to children born in marriage, out of wedlock and adopted children.
It is the responsibility of the legislator to regulate all aspects related to this decision.
Author: Insignum International Office, Milan