EU Regulations: Cross Border Matrimonial & Registered Partnership Property Rules
According to the European Commission, there are about 16 million couples in the EU living in a “cross border situation”. These international couples are citizens of and/or own properties in different EU Member States.
Presently there is no solid EU Regulation to determine jurisdiction and applicable law for matrimonial property regimes and the property consequences of registered partnerships in case of divorce, separation or the death of one of the spouses, other than internal laws of each State Member.
On 23rd June 2016, two regulations aimed at determining homogeneous rules applicable to property regimes for married couples (Council Regulation (EU) 2016/1103) or registered partners (Council Regulation (EU) 2016/1104) in cross border situations were approved by the Members of the European Parliament.
These regulations entered in to force on January 29th, 2019.
The objective of the regulations is to increase foreseeability and legal certainty regarding jurisdiction and applicable law in the matter of property regimes of international couples, as well as harmonising international private law rules between EU countries.
Clear rules have been laid down on applicable law in case of divorce or death, bringing broader legal certainty and ending parallel and/or conflicting proceedings in various EU Member States. The regulations do not affect the underlying institutions of marriages and partnerships, which remain matters defined by the national laws of the EU Member States.
The Regulation explicitly regulates two cases in which jurisdiction is preordained, these being the death of one of the spouses, and divorce.
In the case of death, the court in a competent Member State pursuant to the Succession Regulation will have jurisdiction in matters arising from spouses’ matrimonial property.
In the case of divorce, the court called upon to rule on an application of divorce will have jurisdiction, provided the spouses agree. Such an agreement may also be concluded during court proceedings.
In cases other than the two mentioned above, and in cases where spouses do not agree on jurisdiction, jurisdiction lies with the courts of the Member State in whose territory the spouses are deemed habitually resident. Failing that, jurisdiction lies with Member State in whose territory the spouses were last habitually resident, insofar as one of the spouses is still considered resident there. Failing that, jurisdiction lies with the courts of the Member State of the respondent’s habitual residence and failing that, the state of the spouses’ common nationality at the time of court proceedings. The parties may also agree to give jurisdiction to a Member State whose law is found to be applicable to the matter. Should the respondent enter an appearance in court, that court will have jurisdiction irrespective of which court has jurisdiction according to the aforementioned rules.
Choice of law rules is applicable to marriages and registered civil partnerships entered in to on, or after 29th January 2019. Marriages and partnerships registered prior to this date are subject to the national choice of law regulations applicable at the time they were contracted.
The regulations are applicable in 18 EU Member States that joined the enhanced cooperation initiative on this matter, namely: Belgium, Cyprus, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, Czech Republic, the Netherlands, Austria, Bulgaria, Sweden and Finland.
The countries that did not adopt the Regulation: United Kingdom, Republic of Ireland and Denmark will use choice of law rules as defined by their national law.
Regulation rules on applicable law are universal in scope. Thus, the law of any state, including states that are not members of the EU, may be found to be applicable. The law provided by the regulations is applicable to all assets, irrespective of which country the assets are situated in.
The death of a spouse or registered partner, or a divorce is hugely emotional wherever you live, but having to work through matters related to inheritance and asset separation using an unfamiliar legal system can add to the pain. The complications multiply when couples live or own properties in different countries. We understand the legal complexities that international couples can face in Italy. If you need advice, we are here to help you.
Written by M. Clelia Talò.