European Regulations and matrimonal regimes

02/04/2019

The well-known Erasmus program can be a good professional but also sentimental opportunity. Indeed, according to the statistics, 33% of former Erasmus students now share their lives with a person of different nationality.
This diversity can be very complicated to manage by the spouses. Also, a European Regulation was passed in order to clarify the rules applicable to the matrimonial regime of European binational spouses.

This new Regulation concerning the matrimonial regimes of the European spouses came into effect from the 29^th of January 2019. It involves 18 countries of the European Union including France (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia and Sweden).

From now , a married couple or civil partners (in a civil partnership) of different nationalities will be subject to a new body of rules. The aim of this Regulation is to solve the difficulties encountered by European couples in their patrimonial relations. To this end the Regulation introduces new features concerning couplese who are in a registered civil partnership (I) and married couples (II).

The civil partnership

There are different forms of registered civil partnership across the various countries of Europe.
The European Regulation provides a definition of registered civil partnerships and unifies the rules affecting jurisdiction and applicable law. The Regulation allows the couple to choose a law that will apply to the partnership established in France: this law may be the law of the couple’s habitual residence or the national law of one of the partners.

The marriage

Despite the intention to simplify the law, some complexity remains. Indeed, the Regulation adds to two other legal regimes that are applicable to spouses who were previously married. From now , three separate rules are applicable:

Couples married before the 1^st of September 1992 are governed by the Zecler judgment of 4^th June 1935;
Couples married between the 1^st of September 1992 and the 28^th of January 2019 remain subject to the 1978 Hague Convention regime;
Couples married from the 29^th of January 2019 will fall under to the new Regulation.

The choice of the applicable law

However, article 20 of the Regulation states that regardless of the date of marriage, spouses may choose the law applicable to their matrimonial regime. Their choice can be made between: the law of the State where at least one spouse has their habitual residence at the time of the conclusion of the Convention, or the law of the nationality of one spouse.
Thus, the Regulation allows spouse to change the law applicable to their matrimonial regime during their marriage.
If there is no agreement concluded on the choice of applicable law, the Regulation also states presumptions of applicable legislation.

The unity of the applicable law

Furthermore, the Regulation establishes the unity of the applicable law: from now on, the law of the marriage agreement will apply to all the property of the spouses, whereever it is located.

The end of the automatic mutability of the applicable law

Prior to the Regulation, spouses married without an agreement on marriage were uncertain of the law applicable to their matrimonial regime. The applicable law could vary over time, often against the will of the spouses. For example, if the couple moved jurisdiction after marriage or settled abroad for more than ten years, the legal matrimonial regime of the jurisdiction of residence applied automatically.
This automatic mutability of the applicable law will no longer apply under the Regulation for spouses married after the 29^th of January 2019. Thus, it is strongly recommended that spouses who are subject to the previous rules, take advantage of article 20 of the Regulation to choose the law applicable to their matrimonial regime.

For more information about the new European Legislation, please contact Damien Concé, Doctor in law : d.conce@rosemont.mc