Matrimonial property regimes

Determination and points of connection

On many previous occasions we have written about the law applicable to the financial affairs of spouses who hold different nationalities. For example, in the case of a British national married to an Italian national who live in Spain, which matrimonial property regime is understood to be applicable and how can this be proved if necessary?

Last 29th January 2019, Council Regulation (EU) 2016/1103 dated 24th 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 became applicable to all those marriages concluded from 29th January onwards.

Pursuant to the said regulation, the applicable law to the matrimonial property regime will be applicable even if it is not the law of a Member State. Article 21 of the regulation establishes that the law applicable to the matrimonial property regime will be applicable to all the assets included under the regime with independence of where they are located. Article 22 refers to the possibility of the choice of applicable matrimonial property regime which the spouses may designate or modify by mutual consent as long as they choose one of the following regimes:

a) The law of the state in which the spouses or future spouses, or one of them, is habitually resident at the time of signing the agreement, or

b) The law of the state of the nationality of either of the spouses or future spouses at the time of concluding the agreement.

Unless there is an agreement to the contrary, any change made to the applicable law made during the marriage of the spouses will only produce future effects and as such, and pursuant to paragraph 2 of article 22, no retroactive change of matrimonial property regime will prejudice the rights of third parties arising from the application of the said law.

The agreement of the spouses about the matrimonial property regime referred to in article 22 must be documented in writing, dated and signed by both spouses. The definition of “in writing” is understood to include all those communications made by electronic mediums and which provide lasting evidence of the agreement concluded.

If the law of the member state in which both spouses have their habitual residence at the time of concluding the agreement establishes additional formal requirements for the granting of the agreement, the said requirements will also be applicable to the agreement made.

However, what happens if the spouses or future spouses have not chosen and documented the matrimonial property regime that they wish to be applicable as per article 22?

The answer to this question can be found by application of article 26 of the regulation that establishes the applicable law in the absence of a specific choice of the spouses which applies the following:

a) The law of the place of the first habitual residence of the spouses after the conclusion of the marriage or, in the absence of this;

b) The law of the common nationality of the spouses at the time of the conclusion of the marriage, or, in the absence of this;

c) The law with which the spouses have the most common connection at the time of concluding the marriage taking into account all of their circumstances.

If the spouses have more than one nationality in common at the time of the conclusion of the marriage, only letters a) and c) of paragraph 1 will be applicable.

As an exception to the above, and at the request of either of the spouses, the judicial authority that has jurisdiction to make decisions about the matrimonial property regime may decide to apply the law of a different country or state to the one that is applicable by virtue of paragraph 1, letter a) if the applicant can prove that:

a) The spouses had their joint habitual residence in another state for a period of time that is considerably longer than the one of the state designated by virtue of paragraph 1, letter a), and

b) If both spouses used the law of the other state to organize and plan their financial relationships.