THE APPLICABLE LAW TO MATRIMONIAL PROPERTY REGIMES UNDER REGULATION (EU) 2016/1103
ELC was interested in the European Regulation 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law, recognition, and enforcement of judgments in matrimonial matters. This study allowed us to be prepared to answer your questions on the subject to provide you with a quality service.
This regulation, adopted on June 24, 2016, is the result of many years of discussions. It applies to the area of matrimonial property regimes of couples with foreign elements and this, following the mechanism of enhanced cooperation. As a result, the applicability of the Regulation will be limited to those Member States which have expressly so wished.
The Regulation establishes harmonized connecting factors for determining the applicable law to the matrimonial property regime and the competent court. The Regulation also simplifies the recognition and enforcement of judgments and the acceptance and enforcement of authentic instruments relating to matrimonial property regimes.
In this article, we will deal only with the part of the Regulation concerning the applicable law to the matrimonial property regime.
1. The scope of application
The Regulation applies to matrimonial property regimes with a foreign element.
The spouses concerned
For spouses of the same nationality:
With habitual residences in different States at the time of the celebration of the marriage or the drafting of the agreement organizing or modifying their regime, or
With the property of either spouse in a State different from that of nationality or residence, or
Having celebrated their marriage in a State different from that of their nationality or residence.
Spouses of different nationalities, regardless of their place of habitual residence, the situation of their property, or the celebration of the marriage.
Enhanced cooperation (art. 70)
The Regulation is only applicable in the Member States participating in enhanced cooperation. The non-participating Member States are to be considered as third States in the application of the Regulation.
Exclusions (provided for in Article 1)
Excluded from the scope of application are fiscal, customs, or administrative matters, the legal capacity of spouses, the existence, validity, or recognition of a marriage, maintenance obligations, succession, jurisdiction, and applicable law in matters of divorce, legal separation, or marriage annulment, social security, the right to transfer or adapt between spouses, the nature of rights in rem, etc.
Application in time (art. 69, 70)
The regulation entered into force on July 28, 2016.
2. Applicable law in the absence of a choice by the spouses (art. 26)
If no law is designated, a hierarchy of connecting factors is used to determine the applicable law:
- The first common habitual residence of the spouses after the celebration of the marriage.
- Failing that, the common nationality at the time of the marriage. This criterion cannot be used when the spouses have several common nationalities.
- Failing that, the law of the State with which the spouses have the closest connection at the time of the celebration of the marriage.
Exceptionally, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the celebration of the marriage shall apply, provided that the following circumstances are met:
That one of the spouses so requests;
That the spouses had their last common habitual residence in that other State for a period significantly longer than their first common habitual residence;
That both spouses have relied on the law of that other State to organize or plan their property relations;
That the spouses did not conclude an agreement before the date of their last common habitual residence in that other State.
3. Choice of law
The Regulation offers the possibility of choosing the law of one of the States of which at least one of the spouses has the nationality or the law of his or her habitual residence at the time of the choice (art. 22). This choice of law applicable to the matrimonial regime may be express or implicit.
For the choice to be valid, it must meet certain conditions, in particular
Formal conditions: the choice agreement must be in writing, dated, and signed by both spouses. Certain conditions are added for particular cases (art. 23), for example in case of residence in different Member States.
Material conditions: the existence and validity of the substance of the agreement are subject to the law chosen by the spouses as applicable to the matrimonial property regime (art. 24)
4. Characteristics of the applicable law
The Regulation distinguishes various principles concerning the applicable law to the matrimonial property regimes of couples with foreign elements.
First of all, the principle of universality of the applicable law according to Art. 20 provides that the designated law applies even if that law is not that of a Member State.
Second, there is the principle of unity of applicable law. This principle provides that the law will be applied to all of the couple's assets, regardless of their location (art. 21) or their nature.
There is also the principle of immutability of the applicable law. It is defined by the fact that the matrimonial regime is fixed by the applicable law from the initial moment of the celebration of the marriage and is not modified thereafter.
Finally, as provided for in art. 27 of the present regulation, the applicable law to the matrimonial property regime governs different areas: this is the scope of the applicable law.
One should not forget the exceptions to the applicable law, such as public policy (art. 31) and mandatory law (art. 30).