Famigrazione in Italia e diritti della persona: il caso della nullità del matrimonio combinato come conseguenza di costrizione o indebito condizionamento

Abstract

The neologism "Famigration" (Family-Immigration, Hong, K., 2014) indicates the phenomenon resulting from migrations in the globalised world in which national family law doctrines, principles, and statutes are critically confronted with the family models diffused in different cultures. This phenomenon, already present in many Countries of Western Legal Tradition, has only recently occurred in Italy, causing an unexpected but predictable gap between the (rigid) rules of family law and the complex reality of families of various ethnic groups. Moreover, this has led (as in France) to a systematic contradiction whereby, on the one hand, the legal system recognises and protects for instance the right to profess one's religion and, on the other hand, prohibits the expression of one's beliefs through the use of religious symbols. Thus, a problem has emerged of the protection of individual rights and freedoms that are often incompatible with certain family traditions and conceptions that are not 'autochthonous' or 'alien' but are now present in the country. The answer in terms of criminal or simply punitive rules is by no means decisive, on the contrary. In my opinion there is room for an 'alternative use of comparative private law' by reconstructing and interpreting the rules of family law in such a way as to make them more effective and consistent with the new situations. For instance, it is possible to address the difficult issue of 'arranged marriages' even in the case where the spouse, giving in to circumstances and the 'pressure' of relatives and their community, has validly married despite her opposition. Through a new comparative interpretation of the Italian Civil Code's rules on "awe" and "violence" with the homologous Common Law concepts of "widespread violence" and "undue influence", it is possible to void the marriage for "absolute violence", concretely safeguarding the individual's freedom of choice.