Case Update: 7 October 2026, Ottolenghi v. Ottolenghi, Maryland Court Enforces Italian “Declaration of Separation of Assets” After Wife Waives Challenge Under Italian Law
The Wife, a British barrister, and the Husband, an Italian lecturer at Oxford, met in London and wanted to protect their respective assets before marrying. They learned a prenuptial agreement was not available in Italy, but Italian law let spouses elect into a separate property regime. Two days after marrying in Oxford, they went to the Italian Consulate in London and signed a “Dichiarazione di Separazione dei Beni” (Declaration of Separation of Assets) electing that regime under Articles 162 and 210 of the Italian Civil Code. A consular official read it to them in Italian, neither asked questions, and both affirmed it reflected their will before signing in front of two witnesses. The family later moved to Washington, D.C., and the Husband bought a jointly titled home in Montgomery County, Maryland. When the Wife filed for divorce, the Husband relied on the Declaration. The Wife argued it was unenforceable because she did not speak Italian. The trial court found that Italian law governed because the Declaration was executed at the Italian Consulate and publicly filed in Bologna, that it was enforceable under Italian law, and that only the jointly titled property (the home and its contents) was subject to division. In a footnote, the trial court added that the Declaration would be valid under Maryland law too.
On appeal, the Wife argued only that the Declaration was unenforceable under Maryland law and could not be read under Maryland postnuptial agreement law to create a separate property regime. In an unreported opinion, the Appellate Court of Maryland affirmed. It explained that parties may choose the law governing their contract, and that absent such a choice, Maryland looks to the place of the marriage (lex loci celebrationis) or the place the contract was made (lex loci contractus), subject to a public policy exception. The Wife never challenged the trial court’s finding that Italian law governed, never argued that applying Italian law offended Maryland public policy, and never contested enforceability or interpretation under Italian law. Under Maryland Rule 8-131, she waived those arguments, leaving her challenging the Declaration only under a body of law the trial court had found immaterial.
In a lengthy footnote, the court said that even under Maryland law, it would find no error. Applying the two-prong “overreaching” test from Stewart v. Stewart, the agreement was substantively fair because the Wife had her own assets to protect and received a benefit commensurate with what she gave up. It was also procedurally fair: she was a barrister, had discussed separate property regimes with the Husband and with her mother and sisters (who had each elected similar regimes), went to the Consulate for the sole purpose of signing, affirmed the Declaration reflected her will, and the parties kept largely separate finances throughout the marriage. As to interpretation, the court applied Maryland’s plain-meaning rule. Although the Declaration and Articles 162 and 210 never mention “marital distribution,” both parties’ Italian law experts testified that under a separate property regime, property acquired during the marriage stays separate and is not divided on divorce. That was enough to read the Declaration as an election to keep individually acquired property separate. Note that this opinion is unreported and may be cited only for its persuasive value under Maryland Rule 1-104(a)(2)(B).
