Since 29 January 2019, the Council Regulation (EU) No 2016/1103 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 (EuGüVO). It creates special international competences. Regulation (EU) No. 2016/1104 of 24 June 2016 applies to registered partnerships.
Insofar as the EU Regulation is applicable, this determines the law according to which the matrimonial property regime is governed. The rules of matrimonial property law in the EU Member States differ considerably in some cases. If an international situation is involved, the question therefore arises as to which country's law governs the matrimonial property regime.
In which countries is the EuGüVO applicable?
The regulation is part of the EU's enhanced cooperation programme. The following member states participate in it:
- Germany,
- Belgium,
- Bulgaria,
- the Czech Republic,
- Finland,
- Greece,
- Spain,
- France,
- Croatia,
- Italy,
- Luxembourg,
- Malta,
- the Netherlands,
- Austria,
- Portugal,
- Sweden,
- Slovenia and
- Cyprus.
It is therefore applied by these states. According to Art. 20 of the EuGüVO, the Regulation is Universally applicable. This means that the courts and authorities of the member states use the Brussels I Regulation to determine the applicable law and jurisdiction in the area of matrimonial property regimes even if there is an international connection to non-participating member states or third countries.
Since when has the EuGüVO been applicable?
The Brussels I Regulation entered into force without restriction in the participating member states on 29 January 2019. From this date, it applies to proceedings, authentic instruments and court settlements that were initiated, formally drawn up or registered or approved or concluded on or after this date, Art. 69 para. 1 Brussels I Regulation. According to paragraph 3, Chapter III (Applicable law) of the Regulation only applies to spouses who entered into the marriage on or after 29 January 2019 or made a choice of law with regard to the law applicable to their matrimonial property regime. For the old law continues to apply to all other spouses (in Germany Art. 15 EGBGB).
What does the EuGüVO regulate?
According to Art. 1 (1) of the EU Block Exemption Regulation, the Regulation applies to the Matrimonial property regimes apply. According to Art. 1 Para. 2 of the Brussels I Regulation, regulations on the existence of a marriage (lit. b), maintenance obligations (lit. c), consequences under inheritance law (lit. d) and pension equalisation (lit. f) are excluded from the scope of application.
Furthermore, according to Art. 1 para. 2 lit. g) EUTMR, no participating Member State is obliged to recognise rights in rem in objects located on its territory if these are unknown by their nature. Such a right must be converted by way of substitution into a right in rem that is functionally known to the Member State in accordance with Art. 29 Brussels I Regulation. However, this only applies to the type of rights, but not to the acquisition modalities (ECJ - Kubicka)
According to Art. 3 para. 1 lit. a) Brussels I Regulation, the matrimonial property regime includes all property settlements arising between the spouses and their relations with third parties as a result of the marriage or the dissolution of the marriage apply. The broad interpretation is based on the Case law of the ECJ.
How does the Brussels IBER regulate jurisdiction?
The respective rules of international jurisdiction are not alternative rules of jurisdiction. As in the EU Succession Regulation, they enjoy the Primacy of Union law.
Art. 4 of the Brussels I Regulation contains a provision on jurisdiction in the event of an appeal in connection with the Legal succession by reason of death. In this respect, a parallelism is established with the court seised in connection with the EU Succession Regulation.
In connection with a Divorce proceedings contains Art. 5 EuGüVO one Annex competence. However, the spouses may, under certain conditions, make use of the possibility of a jurisdiction agreement in accordance with paragraph 2.
If there is no jurisdiction under Art. 4 or 5 of the Brussels I Regulation, the Art. 6 EuGüVO one Cascade connection, after which
- lit. a) the court of the common habitual residence,
- lit. b) the court of the last common habitual residence, provided that one spouse is still residing in its territory,
- lit. c) the court at the place where the defendant habitually resides, and finally
- lit. d) the court of the common, possibly also multiple, nationality has jurisdiction.
However, Article 6 of the Brussels I Regulation does not apply if the spouses have a marriage Art. 7 EuGüVO formally valid Jurisdiction agreement have met.
Pursuant to Art. 8 of the Brussels I Regulation - except in the cases of Articles 4 and 5 (1) of the Brussels I Regulation - a Jurisdiction based on an unrepentant defence before the court whose law is applicable pursuant to Art. 22 or Art. 26 (1) (a) or (b) Brussels I Regulation.
Further jurisdiction is governed by Art. 9 Brussels I Regulation (alternative jurisdiction), Art. 10 Brussels I Regulation (subsidiary jurisdiction), Art. 11 Brussels I Regulation (emergency jurisdiction) and the jurisdiction for counterclaims regulated in Art. 12 Brussels I Regulation. Articles 14-19 of the Brussels I Regulation contain provisions regarding the referral to the court, the examination of jurisdiction and admissibility, lis pendens, the stay of related proceedings and interim measures.
What determines the applicable law?
The applicable substantive law follows from the Cascading connection of Art. 26 EuGüVO, the EU is in principle in favour of a immutable property law This means that the matrimonial property regime does not change, even if the spouses later change their place of residence.
According to Art. 26 (1) of the EU-GDPR, the law of the first common habitual residence after the marriage (lit. a), but at the latest shortly after the marriage (recital 49).
Alternatively, the Common Birthright of the spouses with the same nationality (lit. b), otherwise the closest connection to a state (lit. c).
However, the priority would be Choice of law in accordance with Art. 22 Brussels I Regulation (cf. Art. 26 para. 1). The applicable law is determined by the (future) spouses themselves through the choice of law. If a marriage already exists and a choice of law is made during this marriage, this will generally apply for the future. The property relationships are therefore assessed according to the new law following the choice of law. A retroactive choice of law is only permitted under very strict conditions.
The spouses or future spouses may choose the law of the state of their joint or sole habitual residence (lit. a), but not the law of a planned future joint residence. It is also possible to choose the home law of one spouse (lit. b).