Property regimes for international couples
Affected by Brexit?
EU rules on property regimes make it easier for international couples who are married or in a registered partnership to manage their property on a daily basis, and to divide it in case of separation or the death of one of the spouses / partners.
International couples refers to marriages and registered partnerships between citizens of EU or non-EU nationality who:
- live in the EU and have different nationalities, or
- live in an EU country that is not their country of origin, or
- do not live in the EU but have assets in an EU country.
Rules and procedures
EU rules on the property regimes of international couples apply in 18 EU countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden.
These rules determine:
- the EU country court competent to deal with a case on the couple's property regimes
- the law applicable to the case (it can be the law of an EU country or the law of a non-EU country, and
- the rules for the recognition and enforcement in an EU country of a decisions given in another EU country.
Poland, Hungary, Denmark, UK, Ireland, Estonia, Latvia, Lithuania, Slovakia and Romania do not apply EU rules on property regimes for international couples. National law applies in these countries.
EU rules on the property regimes of internaional couples do not cover issues related to:
- the legal rights of spouses or partners
- the existence, validity or recognition of a marriage or partnership (the competence to define family and marriage falls under national law)
- maintenance obligations between spouses or partners after a separation or divorce
- the succession to the estate of the deceased spouse or partner.
Sample story
EU rules on property regimes bring legal certainty
Alain, a French national is married to Marie a Belgian national. They got married in Belgium and live there permanently. In the absence of a choice of law agreement, their property regime will be goverened by Belgian law. A couple of years later they bought a holiday house in France in addition to their property in Belgium.
Should the couple divorce, the EU country court competent to handle their divorce will also deal with the division of their property (this will include their properties in both France and Belgium).
Which country has jurisdiction?
Death, divorce / legal separation, dissolution of registered partnership
In case of the death of your spouse / partner, the EU country court competent to deal with the inheritance of your spouse / partner will also deal with your couple's property regime matters.
Similarily, the EU country court competent to deal with your divorce / legal separation or the dissolution of your registered partnership will deal with your couple's property regime matters.
Other cases
In other cases, the competent court to deal with your couple's property regimes will be the court in the EU country:
- of the current usual residence of both spouses / partners, or failing that
- of the last usual residence of both spouses / partners, or failing that
- of the usual residence of the respondent, or failing that
- of the common nationality of spouses / partners, or failing that
- under whose law the registered partnership was registered.
Choice of court agreement
Other than in cases of inheritance or divorce / legal separation or dissolution of the registered partnership, as a spouse or registered partner you can agree with your spouse or partner to draw up a choice of court agreement (in writing, signed and dated by both parties). You can select either:
- the courts of the EU country whose law is applicable to your property regime or
- the courts of the EU country where your marriage was concluded or where your partnership is registered.
If an EU country considers that the marriage or registered partnership cannot be recognised for the purposes of property regime proceedings, you may submit your case to a court in any other EU country where a connecting factor exists.
Applicable law and choice of-law agreement
As a spouse or registered partner, you can agree with your spouse or partner to draw up a formal choice of law agreement (in writing, signed and dated by both parties) to choose the law that will apply to your property regime. A choice of law agreement can be drawn up before, on entering or during the marriage or registered partnership. The spouses or partners can choose the law of:
- the country of residence of both or either spouses / partners or,
- the country of nationality of either spouse or partner, or
- the country where your partnership is registered, if you are in a registered partnership.
Under EU rules, the law of the country (an EU or non-EU country) that applies to your property regime covers all your assets regardless of their location.
If you have not made a formal choice of law agreement, the applicable law will be the law of the country:
- of the spouse's first common habitual residence following marriage
- of the spouses common nationality at the time of the marriage
- with which the spouses jointly have the closest connection at the time of the marriage, taking into account all the circumstances
- where your partnership is registered, if you are in a registered partnership.
Recognition and enforcement of court decisions
Court decisions on property matters given in one EU country are recognised in other EU countries without any special procedure. However, their enforcement is not automatic and requires a declaration of enforceability. The EU country of enforcement can refuse to recognise the court decision if it:
- is clearly incompatible with public policy
- contradicts any previous court decision on the same matter.
Authentic instruments (often notarial acts) are recognised and enforced in the same way as court decisions.