With the publication in the OJEU L of 8 July 2016 of Regulations (EU) 2016/1103 and2016/1104 , both of the Council and dated 24 June 2016, the EU has completed the drive for the new regulation of the property regimes of couples made up of citizens of different nationalities of the Union, both married and unmarried.
This process began last March, when the European Commission approved a proposal for an enhanced cooperation agreement among 17 of the Member States, to clarify the rules applicable to the property regimes of married couples and registered international de facto couples.
Specifically, the purpose of this initiative was i) To clarify which national court has jurisdiction to help the couples concerned manage or divide their property in the event of divorce, separation or death (rules on jurisdiction); ii) To clarify which law applies when the laws of several countries could apply to the matter (rules on applicable law); and iii) To facilitate the recognition and enforcement in one Member State of a decision on property matters given in another Member State.
This proposal materialised in an agreement reached last June, which has been embodied in these two new regulations.
Given their interest, we review below the main points of Regulation 2016/1103, which establishes enhanced cooperation in the area of jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes.
Territorial scope of the rule
This Regulation only affects the States that agreed on the enhanced cooperation mechanism on this matter, authorised by EU Decision 2016/954, which are, in addition toSpain, Sweden, Belgium, Bulgaria, Greece, Croatia, Cyprus, Slovenia, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, and Finland.
The rest of the Union’s countries may join the rules at any time once it is formally adopted. Estonia, for example, has already announced its intention to do so after its adoption.
Material scope of the rule
This Regulation will apply to matrimonial property regimes with cross-border implications, including “all civil-law aspects of matrimonial property regimes, relating both to the day-to-day administration of the matrimonial property and to the liquidation of the regime, in particular as a result of the couple’s separation or the death of one of the spouses.”
According to recital (18), “For the purposes of this Regulation, the term “matrimonial property regime” should be interpreted autonomously and should cover not only the rules from which the spouses may not derogate, but also the optional rules that the spouses may agree upon in accordance with the applicable law, as well as any default rules of the applicable law. It includes not only marriage agreements specifically and exclusively provided for by certain national legal systems for marriage, but also any property relationship, between the spouses and in their relations with third parties, resulting directly from the matrimonial relationship or its dissolution.”
This Regulation does not affect the competence of the authorities of the Member States in matters of matrimonial property regimes (understood as the “set of rules concerning the property relationships between spouses and with third parties, as a result of marriage or its dissolution”).
The Regulation excludes tax, customs and administrative matters and certain issues such as the legal capacity of the spouses; the existence, validity and recognition of the marriage; maintenance obligations; succession upon the death of one of the spouses or social security, among others.
The concept of marriage is that defined by the national law of the Member States.
Rules on jurisdiction
The Chapter II of the Regulation lays down the rules on jurisdiction in the event of divorce, legal separation or annulment of marriage; in the event of the death of one of the spouses and in other cases
It also lays down guidelines for the choice of court and for determining jurisdiction based on the appearance of the defendant; as well as alternative jurisdiction and subsidiary jurisdiction.
It also deals with issues relating to lis pendens, related actions and provisional and protective measures.
The term court includes not only courts in the strict sense of the word, exercising judicial functions, but also, for example, notaries in some Member States who, in certain matters of the matrimonial property regime, exercise judicial functions in the same way as courts, as well as notaries and legal professionals who, in some Member States, exercise judicial functions in matters of the matrimonial property regime by delegation of powers from a court.
The Member State of the celebration of the marriage will be the Member State before whose authorities the marriage was celebrated.
It is permitted that the different related proceedings of citizens be heard before the courts of the same Member State. Thus, where proceedings concerning the succession of one of the spouses are pending before the court of a Member State seised under Regulation (EU) No 650/2012, the courts of that State should have jurisdiction to rule on the matrimonial property regimes arising in connection with that succession, and vice versa.
The possibility is provided for the parties to settle the matter relating to the matrimonial property regime amicably and out of court.
The grounds on which subsidiary jurisdiction may be exercised are listed exhaustively to ensure that the courts of all Member States can, on the same grounds, exercise their jurisdiction in relation to the matrimonial property regimes of spouses. And in order to remedy, in particular, situations of denial of justice, a forum necessitatis is provided for, allowing a court of a Member State to rule, exceptionally, on a matrimonial property regime that has a close connection with a third State. Lis pendens is regulated to avoid irreconcilable decisions being given in different Member States.
Applicable law
The Chapter III regulates issues such as universal application (“The law determined as applicable under this Regulation shall apply whether or not it is the law of a Member State”), the unity of the applicable law (“The law applicable to the matrimonial property regime under Articles 22 or 26 shall apply to all the assets comprised in that regime, regardless of where the assets are located”), the choice of applicable law and the formal validity of the agreement on the choice of applicable law.
And so that spouses know in advance which law will be applicable to their matrimonial property regime, harmonised conflict-of-law rules are established in order to avoid contradictory results.
The cases in which spouses or future spouses may designate or change by common agreement the law applicable to their matrimonial property regime are set out, as well as the formal requirements the choice agreement must meet to be valid.
Where no applicable law has been chosen, harmonised conflict-of-law rules are provided to determine the law applicable to the spouses’ entire property on the basis of a hierarchy of connecting factors, the first criterion being the spouses’ first common habitual residence immediately after the marriage and the second the law of the spouses’ common nationality at the time of the marriage. The third criterion will be the law of the State with which the spouses have the closest connection. And where the spouses have moved to the State of their habitual residence for a long period, it may be concluded that the law of that State may apply when the spouses invoke it.
The rules on the validity of marriage agreements (capitulaciones matrimoniales) are also set out in detail, a provision on matrimonial property whose admissibility and acceptance varies among Member States. They must also meet the requirements demanded by the law of the Member State in which the spouses have their habitual residence.
The scope of the law applicable to the matrimonial property regime is established, from the classification of the assets of one or both spouses into different categories during the marriage and after its dissolution until the liquidation of the property. It deals with effects vis-à-vis third parties.
And provisions are included relating to the application of overriding mandatory provisions, public policy and territorial and interpersonal conflicts of laws.
Recognition, enforceability and enforcement of decisions
The Chapter IV of the Regulation deals, among other matters, with the recognition, enforceability and enforcement of decisions given in a Member State.
The acceptance and enforceability in all Member States of authentic instruments on the matrimonial property regime is guaranteed; they must have in another Member State the same evidentiary effects as in their Member State of origin or the most comparable effect possible. Authentic instruments that are enforceable in the Member State of origin will be declared, at the request of any of the parties, enforceable in another Member State. Likewise, at the request of any of the parties, court settlements that are enforceable in the Member State of origin will be declared enforceable in another Member State.
The recognition and enforcement of decisions in matters of matrimonial property regime do not imply recognition of the marriage that gave rise to the decision.
Authentic instruments and court settlements
According to Chapter V, authentic instruments issued in a Member State will have in another Member State the same evidentiary effects as in the Member State of origin, or the most comparable effect possible, provided that this is not manifestly contrary to the public policy (ordre public) of the Member State concerned.
Authentic instruments that are enforceable in the Member State of origin will be declared, at the request of any of the parties, enforceable in another Member State in accordance with the procedure provided for in Articles 44 to 57.
At the request of any of the parties, court settlements that are enforceable in the Member State of origin will be declared enforceable in another Member State in accordance with the procedure provided for in Articles 44 to 57.
Legalisation of documents issued in another State
According to Art. 61, within Chapter VI, “No legalisation or similar formality shall be required for documents issued in a Member State in the context of this Regulation.”
Relationship with other rules
The Regulation shall not affect the application of bilateral or multilateral conventions to which one or more Member States are party at the time of adoption of this Regulation or of the decision under Article 331(1), second or third subparagraph, of the TFEU and which concern matters governed by this Regulation, without prejudice to the obligations of Member States under Article 351 TFEU. However, as between Member States, this Regulation shall take precedence over conventions concluded exclusively between them in so far as such conventions concern matters governed by this Regulation.
Entry into force and applicability
The Regulation enters into force on 28 July 2016, twenty days after its publication in the Official Journal of the European Union.
However, it will apply only from 29 January 2019, with the exception of itsArticles 63 and 64, which will apply from 29 April 2018, and of its Articles 65,66 and 67, which will apply from 29 July 2016.
For the Member States participating in enhanced cooperation by virtue of a decision adopted in accordance with Article 331(1), second or third subparagraph, of the TFEU, the Regulation will apply from the date indicated in the decision in question.
The Regulation will apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 29 January 2019, subject to paragraphs 2 and 3.
Where the action was brought in the Member State of origin before 29 January 2019, decisions given after that date will be recognised and enforced in accordance with Chapter IV, provided that the rules of jurisdiction applied comply with those provided for in Chapter II.
The provisions of Chapter III will apply only to spouses who have married or who have specified the law applicable to the matrimonial property regime after 29 January 2019.