On 24 June 2016 the EU Council adopted two new Regulations aimed at creating certainty about property law for couples who enter into a marriage or registered partnership of a cross-border nature. The new rules will only apply to marriages and registered partnerships entered into or proceedings commenced after 29 January 2019, and only in the Member States which have acceded to the Regulations.
Scope of application
Regulations 2016/1103 and 2016/1104 seek enhanced cooperation between Member States in the area of jurisdiction, applicable law and the recognition and enforcement of decisions regarding the patrimonial relations between spouses and couples with registered partnerships. Under Belgian law, registered cohabitants are covered by the latter category. The Regulations are gender neutral and seek equal treatment of spouses and registered cohabitants. In view of the increasing mobility of couples and globalisation, the new regulations will prove useful.
Both daily management and liquidation of the partners' property, as a result of separation or death of one of the partners, are governed by the Regulations. Excluded from the scope of application of the Regulations are those matters already covered by other European instruments, such as alimony obligations and the law of succession.
As there was no unanimity among all Member States on the content of the Regulation, each Member State was given the option whether or not to join. At present, 18 Member States have affirmed their accession: Belgium, Cyprus, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Austria, Finland and Sweden.
The harmonisation works on three classic levels, which answer the questions as to (i) which court has jurisdiction, (ii) which law is applicable, and (iii) how the implementation will be carried out.
Jurisdiction of the court
The Regulations give a broad meaning to the term "court": not only courts in the strict sense, but also broader categories, such as public notaries who exercise judicial functions, are covered. A court of a Member State that has been consulted in the context of a dispute about an inheritance or the dissolution of a marriage or registered partnership will also have jurisdiction to deal with the patrimonial consequences thereof. For example, a public notary who is in charge of the liquidation and partition of the estate of a spouse on the basis of the Succession Regulation will also be responsible for the liquidation and partition of the dissolved marital property regime.
If there is no dispute about an inheritance or divorce (e.g. when spouses wish to amend their matrimonial property regime), jurisdiction to rule lies with the courts of the Member State in whose territory the partners are habitual residents, unless the partners have appointed another court through a jurisdiction agreement.
Partners can choose to apply the law of their habitual residence or the law of the nationality of one of them. If no choice of law is made, the marital property law relationship will be governed by the law of the Member State where the spouses had their first habitual residence, and in the absence thereof, the law of the Member State of the spouses' common nationality at the time of the conclusion of the marriage and, in the absence thereof, the law of the Member State with which they have the closest connection.
The marital property law consequences of registered partnerships (in the absence of a choice of law) will be governed by the law of the Member State under the law of which the registered partnership was created.
Recognition and enforcement
Finally, the Regulations introduce a uniform procedure for the recognition and enforcement of decisions and authentic instruments. Member States should recognise each other's decisions without having to follow any procedure, and should allow implementation of those decisions if they are requested to do so. The grounds for refusal are harmonised at European level and are kept to a strict minimum.
Entry into force
Only partners who marry or enter into a registered partnership after 29 January 2019 will be able to rely on the new provisions regarding the applicable law. The rules on jurisdiction, recognition and enforcement will only apply to legal proceedings instituted or authentic documents registered after 29 January 2019.