The Circular points out that Art. 116 of the Civil Code provides that foreign nationals wishing to marry within the national territory must present to the civil registrar a declaration made by the competent authority of their own country stating that there are no obstacles to the marriage. For refugees, this function used to be carried out by UNHCR (United Nations High Commissioner for Refugees), but given the evolution of the legislation and the impossibility for UNHCR to come into possession of the necessary documentation to issue this certificate, it has requested that the procedure be adapted.
In particular, following the opinion of the Attorney General's Office, the Viminale informs that, in order to obtain this "nulla osta", refugees will be able to provide a certificate or other suitable act attesting to their freedom of status, or a substitute declaration in accordance with Presidential Decree no. 445/2000.
In this way, the Ministry of the Interior guarantees the appropriate protection for citizens holding refugee status, ensuring continuity of action and avoiding the risk of discrimination.
On this point, it is worth noting that with judgment no. 245/2011, the Constitutional Court declared the constitutional illegitimacy of Article 116, paragraph 1, of the Civil Code, as amended by Article 1, paragraph 15, of Law no. 94 of 15 July 2009 (Provisions on public security), limited to the words "as well as a document certifying the regularity of stay in Italian territory".
The question of legitimacy before the Court had been raised by the Court of Catania, which had been called upon to judge the appeal of an Italian-Moroccan couple who, two years ago, had been denied the celebration of their marriage by the civil registrar due to the lack of a "document certifying the regularity of the Moroccan national's residency permit" as provided by Article 116 of the Civil Code, as amended by Law n° 94 of 2009, then in force.
The Constitutional Court therefore pronounced itself in favour of a "balancing of the various interests of constitutional importance involved, which must also take into account the legal position of those who intend, quite legitimately, to marry a foreigner". It concluded that it is not possible to preclude the celebration of a marriage just because one of the future spouses is a foreigner without legal residency, as such a preclusion would violate a fundamental human right.
Prof. Avv. Paolo Iafrate
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