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Nov.

27, 2018

The European Regulations No. 2016/1103 on Matrimonial Property


Regimes and No. 2016/1104 on Registered Partnerships
(Effective as of January 29, 2019)1

We are well aware by now of the new privacy obligations bearing upon all professionals
under the EU General Data Protection Regulation (GDPR), which came into effect on May
25, 2018.

Together, the broad scope of this GDPR and its large media diffusion have, one more time,
highlighted the extensive involvement of European Law into the EU States’ internal legal
systems.

The variety of the targeted legal fields is again verified through the adoption of two new EU
Regulations in Family and Patrimonial Law:

- the EU Council Regulation 2016/1103 of June 24, 2016 (“Matrimonial Property Regime
Regulation”) implementing enhanced cooperation in the area of jurisdiction, applicable law
and the recognition and enforcement of decisions in matters of matrimonial property regimes,

- and the EU Council Regulation 2016/1104 of June 24, 2016 (“Registered Partnership
Regulation”) implementing enhanced cooperation in the area of jurisdiction, applicable law
and the recognition and enforcement of decisions in matters of the property consequences of
registered partnerships.

These are following, in this area of Patrimonial Family Law, the previously enacted European
Regulation 650/2012 provisions related to International Succession (“Succession
Regulation”), effective since August 17, 2015. 2

Indeed, those two last Regulations have been implemented since July 29, 2016 in the 18
European States acting within this “enhanced cooperation”, in which the new related
provisions are directly and mandatorily enforceable. Those cooperating States are: Austria,
Belgium, Bulgaria, Croatia, the Czech Republic, Cyprus, Finland, France, Germany, Greece,
Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden.

1
Both Regulation are published in the Official Journal of the European Union, on line at : https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R1103 (Matrimonial Property Regime Regulation)
and https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R1104 (Registered Partnership
regulation).
2
See on this topic Mrs Agnès Proton’s article : « The European Regulation No. 650/2012 Related to
International Successions (Effective as of August 17, 2015)” on line at :
https://apps.americanbar.org/dch/more.cfm?com=IC840000&mod=11

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Those provisions will then be applicable and enforceable as of January 29, 20193, although
few technical exceptions are provided for under articles 70 (“Entry into force”) of both
Regulations, which refer to:

- articles 63 ( “Information made available to the public”) and 64 (“Information on contact


details and procedures”), which apply since April 29, 2018;

- and articles 65 (“Establishment and subsequent amendment of the list containing the
information referred to in Article 3 (2), 66 (“Establishment and subsequent amendment of the
attestations and forms referred to in point (b) of Article 45 (3), and Articles 58, 59 and 60”),
and 67 (“Committee procedure”), which apply since July 29, 2016.

These new provisions relate to civil patrimonial law only, and more precisely to the
patrimonial relationships between spouses or partners, as well as to their patrimonial
relationships with third parties that are the consequences of the marriage or the partnership
and their termination.4

Therefore, are here excluded issues related to spouses/partners’ civil capacity, issues dealing
with social security regimes, retirement or disability pensions benefits, alimony, validity of
the marriage/partnership, spouses/partners’ successions, etc.

These provisions do not encompass issues related to tax, customs or administrative issues
either.5

Within their assigned scope, they are operating a unification of the applicable law, which is to
cover all spouses/partner’s assets, no matter where those assets are located. 6

These provisions are also of “universal application”: as a consequence, the designated law
resulting from them will be applicable even if it is not the law of a Member State. 7

More specifically, as to the Matrimonial Property Regimes, the EU Regulation 2016/1103


supersedes the Hague Convention of March 14th, 1978 relating to the law applicable to
Matrimonial Property regimes. 8

As a result, spouses will no longer be authorized to choose the lex rei sitae (law of the State
where the asset is situated) for their immovable property, as it was originally possible under
this Convention. Unification of the applicable law prevails upon this former option to “split”
the matrimonial property regime according to the nature of the assets.

Now, back to a broader overview, how will this unified applicable law be determined in the
first place?

3
See Articles 69 of both Regulations: « Transitional provisions ».
4
See definitions provided for under Articles 3 § 1 of both Regulations.
5
See again both Articles 1 § 1 : « Scope ».
6
See both Articles 21: « Unity of the applicable law ».
7
See both Articles 20: « Universal application ».
8
Available on line at : https://assets.hcch.net/docs/3fccda38-481c-4bf1-b41b-b07fc5346654.pdf ; as a reminder,
up to now, this Convention have been applying in France to all marriages celebrated since September 1st, 1992
(ie since it came into force in this country).

2
Both for the Matrimonial Property Regimes and the Partnership, the applicable law will
depend either upon the consequences of the parties’ choice, or on the Regulations suppletive
(ie subsidiary) provisions:

1. The Optio Juris : the choice of the applicable law

Both regulations provide that the spouses/partners are allowed, under option, to submit their
initial or thereafter voluntarily modified matrimonial property regime/partnership to:

- the law of the State where the parties, or at least one of them, is habitually
resident when entering in this marriage /partnership, 9
- or the law of either parties’ nationality, 10
- or, for the partners only, the law of the State where the registered partnership
was created.11

Under both Regulations, it is worth pointing out that all changes as to the Matrimonial
Property Regime/Partnership applicable law will be effective for the future only, except if
provided otherwise by the spouses/partners.

But still, no retroactive changes in the applicable law will be allowed if those changes could
be impairing on third parties’ rights under such initial law. 12

As to formal requirements, the choice of the applicable law to the matrimonial property
regime/partnership must be executed in writing, dated and signed by both parties. The
Regulations provide also that “Any communication by electronic means which provides a
durable record of the agreement shall be deemed equivalent to writing”. 13

2. In the absence of Optio Juris : the objective connection

When the parties have not expressly executed their choice-of-law agreement according to the
above mentioned conditions, which would have allowed a subjective connection to the chosen
applicable law, both Regulations provide for the following suppletive connections:

- As to matrimonial property regime, in principle three possible connections are


successively available, ie to the law of the State :
- …of the spouses’ first common habitual residence after their marriage, or, if such
requirement is not met,
- …of the spouses’ common nationality at the time of the marriage, or, if still not
met,
- …with which the spouses jointly have the closest connection at the time of the
marriage. 14

- As to partnership, in principle, only one connection is made available here : it is to the


law of the State where the registered partnership was created. 15
9
See both Regulations Articles 22 1 (a).
10
See both Regulations Articles 22 1 (b).
11
See EU Partnership Regulation 2016/1104, Article 22 1 (c).
12
See both Articles 22 2 & 3.
13
See both Articles 23 4.
14
See EU Matrimonial Property Regime Regulation 2016/1103, Article 26 1 & 2.
15
See EU Partnership Regulation 2016/1104, Article 26 1.

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However, it can be derogated to those connecting principles; to that effect exceptions are set
under both Regulations when parties are placed in a judiciary context. 16

More generally, it must be highlighted that both Regulations have provided for two of the
traditional safeguards encountered in Private International Law, which are the mechanisms of
Overriding Mandatory Provisions on the one hand, and Public Policy (“Ordre Public”) on the
other. 17

As a consequence, it will always be possible to set aside a provision of the otherwise


applicable law, if said law should obviously be incompatible with the Public Policy of the
State, or restrict the application of the overriding mandatory provisions of the same.

Nonetheless, both Regulations have expressly excluded the possibility of “Renvoi” , another
international private law traditional mechanism, although it had been previously maintained in
the EU Succession Regulation. 18

Last and regarding the Jurisdiction rules, they are governed in both Regulations under similar
provisions 19.

Briefly, the accessory jurisdictions provided under articles 4 and 5 refer to the above
mentioned EU Succession Regulation and to the Brussels II bis Regulation20 for all issues
relating to:
- mortis causa termination of the matrimonial property regime or the partnership (by death of
one party),
- and/or inter vivos termination of the like (by divorce of the spouses, or dissolution of the
partnership).

Apart from those cases, both Regulations set forth traditional successive connections 21 and
other traditional EU regulation jurisdiction rules, to wit : choice of Court, jurisdiction based
on the voluntary appearance of the defendant, alternative jurisdiction, subsidiary jurisdiction,
and Forum necessitatis.22

As we may foresee and once again, when faced to such significant regulation changes, parties
(and their advisors!) should better remain vigilant…

Agnès Proton
Attorney at Law in Cannes (France)
Member of the Grasse Bar Association
ABA-SIL Immediate Past Co-Chair of the International Private Client Committee (2015 –
2018)

16
See EU Matrimonial Property Regime Regulation 2016/1103, Article 26 § 3 and EU Partnership Regulation
2016/1104, Article 26 § 2.
17
See both Regulations Articles 30 & 31.
18
See both Regulations Articles 32.
19
See both Regulations Articles 4 to 19.
20
See the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the
recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,
repealing Regulation (EC) No 1347/2000, on line at https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R2201:EN:HTML
21
See both Regulations Articles 6.
22
See both Regulations Articles 7 to 11.