The Italian Costitutional Court (Sent. n. 245/2011) declared the illegittimacy of the art. 116 cod. civ., regarding the Italian Costitution, in the measure that it allows only the regoularly staying foreigners to contract marriage on the italian territory.
Pursuant to the Costitutional Court, in fact, the marriage rapresents expression of the freedom and liberty of every human, so that the right to contract ad lib the marriage itself is defended, protected and recognized by the Costitution (art. 2, 3, 29), due to the fact that the marriage is and must be included among the inviolable human rights, typified by the character of the universality and the absolutness.
According to the Costitutional Court, the Italian Republic aims at and eases up the way to the making of the family and denies and fights each kind of limits to the freedom of contracting marriage, which is frustrated and held back by the rule under discussion.
The freedom and liberty to contract marriage is consecrated even by the Human Rights Bill and by the European Union Treaties, pursuant to which the marriage liberty is a right that must be assured and warranted without if or buts so that the legislations of each State cannot provide unreasonable conditions and restrictions upon this right.
The Costitutional Court itself had already previously stated that the Italian Republic can surely provides rules which regoulate the entrance and stay of foreigners imigrants, but never with unreasonable rules which clashes with International duties provided by treaties subscribed and signed up (Sebt n. 61/2011, n. 187/2010, n. 306/2008).
Anyhow, the rules which regulate the entrance and stay of imigrants from countries not included in European Union must be the result of reasonable trade off between different interests, all recognized by Costitution, especially when it comes up to rules which influence and bear on human rights as such as the liberty of contracting marriage (Sent. n. 445 del 2002).
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