Conflict of laws in matters concerning matrimonial property regimes (Green Paper)
What happens when, say, a Franco-Estonian couple living in Spain separate and questions arise regarding their immovable property located in Germany? The European Commission is launching this Green Paper with a view to resolving the conflict of laws in matters concerning matrimonial property regimes, including jurisdiction of courts and mutual recognition of decisions taken in different Member States. The Green Paper is concerned with "traditional" marriages and other forms of union involving no matrimonial link and takes due account of the new social circumstances in the Member States.
Commission Green Paper of 17 July 2006 on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition [COM(2006) 400 - Not published in the Official Journal].
With this Green Paper, the Commission launched a consultation exercise on the difficulties facing married and unmarried couples at European level. The Green Paper addresses the questions that arise in connection with determination of the law applicable to property and the ways in which the recognition and enforcement of court decisions can be facilitated. The consultation exercise closed on 30 November 2006.
Resolving conflicts of law: the law applicable to matrimonial property regimes
Only scattered rules exist at Community level and these are either not applicable or incomplete and so do not resolve the practical or legal difficulties that arise when a couple's property is to be distributed and/or managed. Where there is no Community rule, the national law of the Member States applies to matrimonial property regimes (in cases involving a national connection: a German couple married in Germany and living there) or private international law applies (in cases involving connections with abroad: the above couple possesses immovable property in France and in the United States).
The Commission would like to introduce rules of a universal nature enabling either the law of a Member State or the law of a third country to be applicable. This involves the identification of connecting factors, the issue of the choice by the spouses of their matrimonial regime and the rules on jurisdiction.
- Identification of connecting factors. First, determination of the law applicable presupposes the identification of connecting factors. The Commission examines the nature of the connecting factors and their order of priority, as well as the use of different criteria for different aspects of the situation ("dépeçage"). It stresses that a solution is needed in cases where connecting factors designated by the conflict rule (such as residence) have changed or moved with the passage of time.
- Choice of matrimonial property regime by the spouses. Most Member States allow spouses to choose the law applicable to the matrimonial property regime. The Commission would like to know whether this choice should be retained in a future Community instrument and, if so, which connecting factors must be taken into consideration in order to allow spouses to choose the matrimonial property regime.
- Determining the jurisdiction of the judicial authorities. The Member States have adopted a wide variety of criteria to determine international jurisdiction as regards matrimonial property regimes. At Community level, Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility has to be complied with. The Commission wonders whether the court with jurisdiction under this Regulation has to be the same when it comes to ruling on the liquidation of the matrimonial property in the event of divorce, separation or succession. Failing that, what other solutions are possible? In addition, given the importance of the functions exercised by non-judicial authorities such as notaries and advocates, the Commission would like to settle the question of their powers and facilitate recognition of the acts established by them. Lastly, the Commission takes the view that uniform rules on the applicable law and jurisdiction will enhance mutual trust between Member States so that intermediate measures for the recognition and enforcement of judgments can be dispensed with.
According to the Commission, it would be worth improving the publicity of matrimonial property regimes in the European Union in order to guarantee legal certainty for all parties concerned, in particular creditors.
Taking account of social circumstances: other forms of union
The steady increase in the number of unmarried couples, whether in registered partnerships or in de facto unions, is reflected in the corresponding increase in the number of legal situations facing them.
Registered partnerships. The Commission looks at the need for specific rules of conflict for registered partnerships: Does the law applicable have to be the law of the place at which the partnership is registered or some other law? Will the designated law govern all the matters at issue or will other criteria such as the law of the place at which the property is located have to be taken into account? The Commission raises the question of the jurisdiction of the judicial authorities in the matter but also that of the recognition and enforcement of decisions relating to registered partnerships.
De facto unions. As with registered partnerships, the Commission examines the specific conflict rules for de facto unions, i.e. non-formalised cohabitation, and wonders whether there should at least be specific rules for the effects of separation of such unions in relation to third parties. Lastly, the Commission looks at the specific rules on jurisdiction and the recognition of property relationships resulting from de facto unions.
The consultation exercise closed on 30 November 2006. The replies received by national governments and parliaments from local and regional authorities and from other entities such as associations of legal professions and universities may be consulted on the website of the European Commission, Directorate-General (DG) for Justice, Freedom and Security, along with a summary of the replies (pdf ).
The adoption of a European instrument relating to matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. This Green Paper forms part of the objectives of the Hague Programme, adopted by the European Council on 4 and 5 November 2004.
For further information, please consult the following European Commisssion websites:
- European Judicial Network in civil and commercial matters Directorate-General for Justice, Freedom and Security: