NEW E.U REGULATION MATRIMONIAL REGIME AND CIVIL PARTNERSHIP
Published by Christophe Dutertre – www.FranceTaxLaw.com – 16/01/2019
Two regulations dated 24th June2016 are complementing the inheritance regulations that came into force lastAugust 2015. After inheritance, so these are matrimonial and registeredpartnerships which are subject to European regulation. 19 members states,including France, wanted to establish enhanced cooperation in these matters. The regulations will come into force on the 29th January 2019.
Domain – The Regulation (EU) 2016/1103 of the Council Regulation of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and Regulation (EU) 2016/1104 of the Council of 24 June 2016 implements enhanced cooperation in the area of jurisdiction, applicable law, recognition and enforcement of judgments in effect heritage of registered partnerships. It therefore covers all private international law issues relating to matrimonial regimes and registered partnerships.
Law designated by the Regulations apply, regardless whether it is the law of a Member State (participating in the enhanced cooperation)
Unity of the applicable law (Article 21 Regulation): applicable to all assets, both movable and immovable property, regardless of the situs of the assets
Application in time – The Regulations come into force on 29th January 2019. It does not apply across all EU member states. The UK had opted out on the basis that it does not have matrimonial regimes within its family. A number of Eastern European countries were not willing to enter into the Regulation because of objections to registration of regimes of same-sex marriages. Consequently, in a path already trodden previously by family law within the EU Parliament, this is an enhanced cooperation Regulation. It is only binding on those who enter into it. At the moment this is 19 member states: Belgium, Bulgaria, Germany, Finland, France, Greece, Italy, Croatia, Luxembourg, Malta, Netherlands, Austria, Portugal, Sweden, Slovenia, Spain, Czech Republic and Cyprus with Estonia either joining before 29 January 2019 or soon thereafter. Others may join subsequently.
Choice of law / matrimonial property
Under Art 22, the spouses may agree the law applicable to their matrimonial property regime provided it is either
a) the law of the state where they or one of them is habitually resident at the time the agreement is concluded or
b) the state of nationality of either spouse or future spouse at the time of the agreement.
The spouse cannot agree, and indeed cannot give to any state, future prospective jurisdiction even conditional upon the fact that they would then be habitually
resident in that state. The matrimonial property regime agreement applies to all assets falling under the regime regardless of where they are situated, Art 21. This may well create a clash of jurisdictions in the future if there is a matrimonial property regime agreement which is dealt with in a choice of law country in the EU yet there is real property in the UK. But this reference to application to all assets was essential for the EU to make sure this law applied to all of the assets of the
couple within the regime, and avoiding a patchwork of different laws applying to different assets in different member states.
In the absence of a choice of law agreement as provided for in the Regulation, the applicable law should be
a) the spouses first common habitual residence after the conclusion of the marriage or
b) failing that of the spouses nationality at the conclusion of the marriage or
c) failing that with which the spouses jointly have the closest connection at the time of the conclusion of the marriage taking account of all the circumstances, Art 26. If they have no common nationality, only the first and the third apply.
Choice of law / civil partnership
Article 22 of the Regulation offers the possibility for a choice of law of:
a) the State where the partners or future partners, or one of them, is habitually resident at the time the agreement is concluded; or
b) the law of a State of nationality of either partner or future partner at the time the agreement is concluded; or
c) the law of the State under whose law the registered partnership was created, in case of a choice of law for the State of habitual residence or nationality, provided that that law attaches property consequences to the institution of the registered partnership
In the absence of a choice of law, the applicable law to the property consequences of registered partnerships shall be the law of the State under whose law the
registered partnership was created (Article 26 of the Regulation)