EXCEPTION TO THE PRINCIPLE OF THE UNITY OF THE APPLICABLE LAW – ART. 28

Art 27(f) in both Regulations establishes that the law applicable to the regime shall govern – inter alia – the effects of the matrimonial property regime/the property consequences of a registered partnership on a legal relationship between the spouse/partner and third parties.

However Art 28 establishes that the applicable law cannot be invoked by a spouse/partner against a third party in a dispute between the third party and either of both spouses/partners unless the third party knew of, or, in the exercise of due diligence, should have known of that law.

A third party is deemed to have had knowledge of the law that applies to the regime of the spouses/partners against whom a dispute arises in two circumstances:

(1) The law of the regime has a very close link (proximity) between the third parties and the spouse/s/partner/s.

This proximity evisages thre laws: (i) law that governs the agreement between the third parties and spouses/partners; (ii) law of the country in which the contracting spouse/partner and the third party have their habitual residence; and (iii) law in which the immovable property in question is located.

Where the regime law cannot be enforced by spouses against a third party when the latter cannot be deemed to have had knowledge, the Applicable Law is as regards:

Movables: the law applicable to the agreement between spouse/partner and third party

Immovables or registered assets or rights: the law in which the immovable is situated or the rights or assets are registered.

ANOTHER EXCEPTION TO THE PRINCIPLE OF THE UNITY OF THE APPLICABLE LAW – ORDRE PUBLIC – ART 31

The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum.

Objection may be raised to a particular provision of the applicable law not to the whole applicable law.

The incompatibility must be ‘manifest’ (e.g. Inequality between spouses/partners on the grounds of religion, gender, race or nationality)

Regulation does not state which law is to be applied in lieu of the rejected provision.

A FINAL EXCEPTION – MANDATORY PROVISIONS – ART 30

(1) Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum.

(2) Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a Member State for safeguaring its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the matrimonial property regime pursuant to this Regulation.

Recital 53: rules of an imperative nature such as protection of the family home

To be interpreted restrictively

SCOPE OF THE APPLICABLE LAW – ART. 27 A non-exhaustive list:

(1) the classification of the property of both spouses/partners into different categories during and after the marriage;

(2) the transfer of property from one category into another;

(3) the responsibility of one spouse for the liabilities or debts of the other spouse;

(4) the powers, rights and obligations of either or both spouses with regard to property;

SCOPE OF THE APPLICABLE LAW

5) the dissolution of the matrimonial property regime/registered partnership and the partition, distribution or liquidation of the property;

(6) the effects of the matrimonial property regime on a legal relationship between a spouse/partner and third parties;

(7) the material validity of a matrimonial/partnership property agreement.

RECITAL 43 – MATRIMONIAL PROPERTY REGIMES REGULATION

The main rule should ensure that the matrimonial property regime is governed by a predictable law with which it is closely connected. For reasons of legal certainty and in order to avoid the fragmentation of the matrimonial property regime, the law applicable to the matrimonial property regime should govern the regime as a whole, that is to say, all the property covered by the said regime, irrespective of the nature of the assets and regardless of whether the assets are located in another Member State or in a third state.

Similar wording in Recital 42 of the Registered Partnerships Regulation.

DETERMINATION OF THE APPLICABLE LAW

Either:

Determined on an Objective Basis – Art 26

Or:

Determined on a Subjective Basis - Professio Juris – Art 22

Applicable law in the absence of Professio Juris – Matrimonial Property Regimes – Art 26

In this order:-

1. Default: spouses’ first common habitual residence after conclusion of marriage;

2. If none, spouses’ common nationality at time of conclusion of marriage (not applicable where spouses have several nationalities);

3. If none, the Law of the state with which spouses jointly have the closest connection at the time of celebration of the marriage.

Escape Clause – Judicial authority can decide that law of another state (state of last common habitual residence) applies in the following eventualities:

Escape Clause – Matrimonial Property Regimes – Art 26(c)

Eventualities:

•Application by one of the spouses

•Last common habitual residence of spouses significantly longer in ‘other state’

•Spouses relied on law of ‘other’ state in arranging and planning property relations

•No matrimonial property agreement before establishment of last common habitual residence in ‘other’ state.

Applicable law in the absence of Professio Juris - Registered Partnerships – Art 26

•Default: Law applicable to the property consequences of registered partnerships is the law of the state where the partnership was created.

•Escape Clause - Art 26(2) – Court having jurisdiction may decide that the applicable law is the law of state where the partners have their current habitual residence.

Escape Clause – Registered Partnerships Regulation – Art 26(2)

Escape Clause – Judicial authority can decide that law of another state (state of last common current habitual residence) applies in the following eventualities:

On the application of one of the partners

Partners had their common habitual residence in that state (not their state of first habitual residence) for a significantly longer period of time.

Partners relied on the law of that other state to arrange/plan their property relations

Partners have not concluded an agreement before establishing their common habitual residence in that state.

PROFESSIO JURIS – BOTH REGULATIONS

Choice may be made expressly or implicitly

2 options:

•Either the law of the State where where either one of the spouses/partners/ future spouses/partners habitually resides at the time of the choice

Or the law of the nationality of either one of the spouses/partners/ future spouses/partners resides at the time of the choice

NB Regulations speak of the law of ‘a State’ and not the law of ‘the state’ of nationality. Therefore in the case of multiple nationalities ANY law can be chosen from these nationalities.

CHANGE OF THE APPLICABLE LAW

•Art 22 (1) The spouses/partners or future spouses/partners may agree to designate, or to change the law applicable to their matrimonial regime/registered partnership....

•Art 22(2) Unless the spouses/partners agree otherwise, a change of law applicable to the matrimonial property regime/registered partnership made during the marriage/partnership shall have prospective effect only.

•Art 22 (3) Any retroactive change of the applicable law under paragraph 2 shall not adversley affect the rights of third parties deriving from that law.

RECITAL 46 – MATRIMONIAL PROPERTY REGIMES REGULATION

To ensure the legal certainty of transactions and to prevent any change of the law applicable to the matrimonial property regime being made without the spouses being notified, no change of law applicable to the property regime should be made except at the express request of the parties. Such a change by the parties should not have retrospective effect unless they expressly so stipulate. Whatever the case, it may not infringe the rights of third parties.

FORMAL VALIDITY OF THE AGREEMENT ON THE CHOICE OF THE APPLICABLE LAW – ART. 23

(1) The agreement referred to in Article 22 shall be expressed in writing, dated and signed by both spouses/partners. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. (N.B. See Art 5(2) of the Successions Regulation)

(2) If the law of the Member State in which both spouses/partners have their habitual residence at the time the agreement is concluded lays down additional formal requirements for matrimonial property agreements, those requirements shall apply.

CONSENT AND MATERIAL VALIDITY OF THE AGREEMENT AS TO CHOICE OF LAW – ART 24

Art 24(1) The existence and validity of an agreement on choice of law or of any term thereof shall be determined by the law which would govern it pursuant to Article 22, if the agreement or term were valid.

i.e.

•Subjecting the substantive validity of the agreement of choice of law to the chosen law itself

•The material validity of the choice itself is regulated by the Regulations themselves.

ART 24(2)

Nevertheless a spouse/partner may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is siezed if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.

FORMAL VALIDITY OF THE MATRIMONIAL PROPERTY AGREEMENTS – ART 25

The marriage contract itself is subject to the same formal requirements as the agreement as to the choice of the applicable law.

However Art 25(3) establishes that it must also satisfy any additional formal requirements laid down by the applicabee law.

Are these additional formal requirements in addition to or in substitution of the law of habitual residence?

Potential problem of invalidity.

ART. 33 & 34 TERRITORIAL CONFLICT OF LAWS & INTER-PERSONAL CONFICT OF LAWS

The Regulations will not apply to internal conflict-of-laws rules in States with different laws applying to different parts of the State.

Similarly the Regulations will not apply to States having different laws applicable to different categories of persons.

In the absence of internal conflict-of-laws rules, the Regulations set out connecting factors.

ADAPTATION OF RIGHTS IN REM ART. 29

Where a person invokes a right in rem to which he is entitled under the law applicable to the matrimonial property regime/property consequences of a registered partnership and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.

JURISDICTION - NOTARIES

Art 3(2): For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with matters of matrimonial property regimes/property consquences of registered partnerships which exercise judicial functions or act by delegation of judicial power or under its control, provided that such other authorities or legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard, and provided that their decisions under the law of the Member State in which they operate: 9a) may be made the subject of an appeal to or review by a judicial authority; and (b) have a similar force and effect as a decision of a judicial authority on the same matter.

JURISDICTION – NOTARIES

Recital 29: This Regulation should respect the different systems for dealing with matters of the matrimonial property regime/property consequences of registered partnerships applied in the Member States. For the purpose of this Regulation the term ‘court’ should be given a broad meaning so as to cover not only courts in the strict sense of the word...but also for example notaries in some Member States.....Conversley, the term ‘court’ should not cover non-judicial authorities of a Member State empowered under national law to deal with matters of matrimonial property regime/property consequences of a registered partnership, such as the notaries in most Member States where, as is usually the case, they are not exercising judicial functions.

JURISDICTION – NOTARIES

Recital 30: This Regulation should allow all notaries who are competent in matters of matrimonial property regime/property consquences of registered partnership in the Member State to exercise such competence. Whether or not the notaries in a given Member State are bound by the rules of jurisdiction set out in this Regulation should depend on whether or not they are covered by the term ‘court’ for the purposes of this Regulation.

AUTHENTIC INSTRUMENTS

Recital 30: This Regulation should allow all notaries who are competent in matters of matrimonial property regime/property consquences of registered partnership in the Member State to exercise such competence. Whether or not the notaries in a given Member State are bound by the rules of jurisdiction set out in this Regulation should depend on whether or not they are covered by the term ‘court’ for the purposes of this Regulation.

AUTHENTIC INSTRUMENTS (CONTINUED)

Authentic instruments refers not only to ante-nuptial and post-nuptial agreements but also to agreements regarding common property in the course of personal separation and divorce.

Absence of an ad hoc instrument which has been provided in the Successions Regulation – the ECS.

However Recital 31 states: Acts issued by notaries in matters of matrimonial property regime/property consequences of registered partnerships in the Member States should circulate in accordance with this Regulation.

JURISDICTION IN THE EVENT OF THE DEATH OF ONE OF THE SPOUSES/PARTNERS

Art 4: Where a Court of a Member State isseized in matters of the succession of a spouse pursuant to Regulation (EU) No.:650/2012, the Courts of that State shall have jurisdiction to rule on matters of the matrimonial property regime/property effects of a registered partnership arising in connection with that succession case.

Therefore in the event of the death of one of the spouses/partners, the competent court according to the Successions Regulation seized with the matter of the succession of the deceased will also be competent in the matter of the matrimonial regime. The same applies in the case of the death of a partner in a registered partnership

JURISDICTION N THE CASES OF DIVORCE, LEGAL SEPARATION OR MARRIAGE ANNULMENT

Jurisdiction in these matters falls to the court competent to rule on the matters of the matrimonial property regime in terms of Rgulation (EC) No.2201/2003 (Brussels II bis).

In some cases (Art 5(2)) the spouses’ agreement is required.

Art 6: In other cases, jurisdiction to rule on the spouses’ matrimonial property regime shall lie with the courts of the Member State: (i) of the spouses’ common habitual residence at the time the court is siezed; or failing that: (ii) of the spouses’ last habitual residence, in sofar as one of them still resides there; or failing that (iii) of the habitual residence of the respondent; or (iv) failing that of the spouses’ common nationality.

DEROGATIONS FROM THE RULES OF JURISDICTION (BOTH REGULATIONS)

Art 8: Jurisdiction based on the appearence of the defendant before the court of the Member State wholse law is applicable;

Art 9: Alternative Jurisdiction

Art 10: Rules where no court has jurisdiction

Art 11: Forum Necessitatis

JURISDICTION IN MATTERS OF THE PROPERTY CONSEQUENCES OF A REGISTERED PARTNERSHIP

Art 5(1): Jurisdiction will fall to the court with jurisdiction to rule on the partners’ dispute on in the event of the partners’ agreement.

Art 6: In other cases, jurisdiction to rule on the property consequences of a registered partnership shall lie with the courts of the Member State: (i) of the partners’ common habitual residence at the time the court is siezed; or failing that: (ii) of the partners’ last habitual residence, in sofar as one of them still resides there; or failing that (iii) of the habitual residence of the respondent; or (iv) failing that of the partners’ common nationality; (v) or failing that, under whose law the partnership was created.

AGREEMENT AS TO CHOICE OF COURT – MATRIMONIAL PROPERTY REGIMES

Art 7: The parties may agree that the Member State whose law is applicable in terms of Art 22 or 26(1)(a) and (b) or where the marriage was concluded shall have jurisdiction to rule on matters of their matrimonial property regime.

Excluded are the cases of death of one of the spouses or matrimonial disputes.

Agreement must be expressed in writing (or other electronic means which provides a durable record) and signed and dated by the parties.

AGREEMENT AS TO CHOICE OF COURT – REGISTERED PARTNERSHIPS

Art 7: The partners may agree that the Member State whose law is applicable in terms of Art 22 or 26 or the courts under whose law the partnership was registered shall have jurisdiction to rule on matters of the property consequences of their registred partnership.

Excluded are the cases of death of one of the partners or partnership disputes.

Agreement must be expressed in writing (or other electronic means which provides a durable record) and signed and dated by the parties.