Does a Pre-1948 Marriage Result in Loss of a Woman's Right to Transmit Citizenship?

Over 25 million Italians have emigrated between 1861 and 1960 with a migration boom between 1871 and 1915 when over 13,5 million emigrants left the country for European and overseas destinations.
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mpizzo
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Does a Pre-1948 Marriage Result in Loss of a Woman's Right to Transmit Citizenship?

Post by mpizzo »

Ciao a Tutti--

As I have obtained Italian citizenship, it seems everyone of my relatives now wants help. Here is my timeline for my current relative:

1. 1901 -- Maternal grandfather born in Italy.
2. 1923 -- Mother born in the United States.
3. 1942 -- Mother marries an United States citizen.
3. 1943 -- Italian paternal grandfather naturalizes.
4. 1954 -- Relative born in the United States.

I thought this would be a clear case as all of the documents are in order. Even though the claim is based upon an Italian-American mother, the relative was born after 1948.

Documents were submitted at a comune in Italy where the relative has owned a home for many years. No issue with a few errors or the lack of legalized translations. (Admittedly, had the same documents been submitted to the Consulate, I would have needed numerous amended certificates and additional records).

According to the employees of the comune, as his mother married in 1942, she automatically loss any claim to Italian citizenship. As such, even though the relative was born post-1948, the pre-1948 marriage resulted in automatic loss of the right to transmit Italian citizenship to any and all children, i.e., children born pre- and post=1948.

Before preparing the paperwork, I was confident that this claim qualified. As per the Houston Consulate's website, one may qualify if: Mother born in the United States ... your grandfather was Italian at the time of her birth and neither you, born after Jan. 1st, 1948, nor your mother ever renounced the Italian Citizenship.

The Consulate's website does not make any mention that, if the Italian-American mother married an American before 1948 she automatically relinquished any and all right to transmit to her post-1948 children.

Does anyone have any experience with this issue or guidance?

While I recognize that one clear avenue is the "Ricorsi" process through the Italian Courts, this is not a traditional 1948 case as the relative was born in 1954 to an Italian-American mother.
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arturo.c
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Re: Does a Pre-1948 Marriage Result in Loss of a Woman's Right to Transmit Citizenship?

Post by arturo.c »

Ok, let's go and take a look at the Italian Law on Citizenship which was in force at the time (Law 13th June 1912 no. 555), whose article 7 reads as follows:

"Salve speciali disposizioni da stipulare con trattati internazionali, il cittadino italiano nato e residente in uno Stato estero, dal quale sia ritenuto proprio cittadino per nascita, conserva la cittadinanza italiana ma, divenuto maggiorenne o emancipato, può rinunziarvi.

Which in English means:

"Except special provisions to be stipulated with international treaties, the Italian citizen born and resident in a foreign country, from which he/she is considered a citizen by birth, retains Italian citizenship but, having become of age or emancipated, can renounce it."

The reasoning behind the Comune's employees is grounded in the third paragraph of article 10 of the same law, where it says:

"La donna cittadina che si marita a uno straniero perde la cittadinanza italiana, sempreche' il marito possieda una cittadinanza che pel fatto del matrimonio a lei si comunichi. In caso di scioglimento del matrimonio ritorna cittadina se risieda nel Regno o vi rientri, e dichiari in ambedue i casi di voler riacquistare la cittadinanza.

Which means:

"The (Italian) citizen woman who gets married to a foreigner loses her Italian citizenship, provided that her husband has a citizenship that is communicated to her by the fact of marriage. In the event of the dissolution of the marriage, she will become a(n Italian) citizen again if she resides in the Kingdom (of Italy) or returns there, and in both cases declares that she wants to reacquire (her original Italian) citizenship."

Now, the relevant question is: would a woman born in the US from an Italian father (and therefore holding both citizenships) who marries an American Citizen in the USA in 1942 lose automatically her Italian citizenship by way of marriage?

Without delving too much on the developments of US nationality laws throughout the nation's history, the relevant Wikipedia article is quite illuminating because it tells us that, while the Naturalization Act of 1804 confirmed that a woman's nationality was dependent upon her marital status, and the Naturalization Act of 1855 tied a wife's nationality, and that of her children, to her husband's, In 1933 the United States delegation to the Pan-American Union's Montevideo conference signed the Inter-American Convention on the Nationality of Women, which became effective in 1934, legally reserving limitations for domestic legislative review.

One of the effects of this International treaty on US laws on citizenship was the enactment of the Equal Nationality Act of 1934, which - among other things - provided that any foreign spouse married to a U.S. national didn't acquire automatically American citizenship upon marriage anymore, but could instead get access to preferential naturalization procedures.

Since the applicant's mother was born in the US, and was therefore an American citizen by birth, she didn't need to naturalize, and unless she did formally (and willingly) renounce her Italian citizenship in any instance she remained a double citizen. Although in 1942 she was still a minor in the eyes of the Italian law of the time (until 1975 Italians became legally adults at 21), she was to be considered emancipated upon her marriage.

All this considered, I believe that the reasoning of the Comune's Civil Status officer is flawed, and the applicant is fully entitled to obtain recognition of his Italian citizenship by descent.
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qualdom
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Re: Does a Pre-1948 Marriage Result in Loss of a Woman's Right to Transmit Citizenship?

Post by qualdom »

This situation also applies to me, and the Italian attorneys with whom I have communicated share Arturo's opinion.

"provided that her husband has a citizenship that is communicated to her by the fact of marriage"

I think any fair interpretation would say that this does not apply in the case of a native-born US citizen marrying a naturalized US citizen, especially if the marriage occurred after the Cable Act of 1922.

However, let me tell you from my experience pursuing dual citizenship in another European country....the prejudices and will of an administrative clerk will triumph over even the most keen knowledge of a country's nationality law. I was extremely knowledgeable and I kept hitting a brick wall time and time again. Fortunately, it was EASTERN europe, so all you have to do is grease the wheels to circumvent an intransigent clerk.
mpizzo
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Re: Does a Pre-1948 Marriage Result in Loss of a Woman's Right to Transmit Citizenship?

Post by mpizzo »

Thank you very much for both of your replies!

My father, was born in 1951. His Italian-American mother married, in the late 1930s, an American husband. However, when we submitted his paperwork, more than a decade ago, to the Houston Consulate, there was never any concern about the pre-1948 marriage to an American.

I had no reason to believe that, as my relative's mother was the sister of my father's mother, there would now be a concern about a pre-1948 marriage. Both my father and my current relative are based upon the same Italian immigrant. Both of his daughter's, i.e. my grand mother and my current relative's mother, were born in the United States and married American men prior to 1948.

(For what it is worth, when my father obtained his Italian citizenship, the Consulate noted that it was a shame that his three siblings were born prior to 1948. As such, the Consulate was unable to also grant them citizenship based upon their ties to an Italian-American mother, the sister of my current relative. Since that time, I have helped about a dozen other relatives with their claims, all of which were granted, by the Houston Consulate.).

Now, turning back to my current relative, he submitted his paperwork to his comune in Toscana, where he has own a home for more than a decade. In order to maintain privacy, I can only say that the comune is between 10,000 and 20,000 inhabitants. Small, but not too small. There are four employees in the Ufficio Anagrafe and Stato Civile.

Today, the head of the office told my relative that she would further research the matter and speak to her superiors before issuing a formal decision.

Would you recommend that, in the event that the comune determines that a pre-1948 marriage results in an immediate loss of an Italian-American woman's right to transmit to post-1948 children, the proper course of action is (1) hire an attorney to write a formal letter for submission to the comune, (2) hire an attorney for the court process, or (3) go through the consulate.

Does anyone have recommendations for an attorney in Toscana, preferably south of Florence? I know that Luigi Paiano is located in Bologna.

Also, I have purposefully failed to mention that the shared relative is a Sicilian. I understand that some in Toscana are not particularly enthusiastic about granting Italian citizenship to a Sicilan-American. Do you think that a better option is going to the hometown in Sicily, a town of less than 2,000? I am not sure to what extent, if any, this small town will require actual residency, i.e., ownership of a home or a lease.
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Re: Does a Pre-1948 Marriage Result in Loss of a Woman's Right to Transmit Citizenship?

Post by qualdom »

mpizzo wrote: 20 May 2021, 17:00 Would you recommend that, in the event that the comune determines that a pre-1948 marriage results in an immediate loss of an Italian-American woman's right to transmit to post-1948 children, the proper course of action is (1) hire an attorney to write a formal letter for submission to the comune, (2) hire an attorney for the court process, or (3) go through the consulate.
I think option #1 would be a waste of time. Even a brilliantly written legal opinion is unlikely to change the minds of the comune.

Option #2 would be the most expensive but would almost certainly result in a favorable decision. Just like in the USA, the courts almost always have a more nuanced view towards these issues.
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