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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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retirement or disability pensions benefits. 2016.Those provisions will then be applicable and enforceable as of January 29. spouses/partners’ successions. Unification of the applicable law prevails upon this former option to “split” the matrimonial property regime according to the nature of the assets. the EU Regulation 2016/1103 supersedes the Hague Convention of March 14th. which refer to: . no matter where those assets are located. as it was originally possible under this Convention. the designated law resulting from them will be applicable even if it is not the law of a Member State.articles 63 ( “Information made available to the public”) and 64 (“Information on contact details and procedures”). . 20193. and 67 (“Committee procedure”). this Convention have been applying in France to all marriages celebrated since September 1st. 5 See again both Articles 1 § 1 : « Scope ». 2018. 7 See both Articles 20: « Universal application ». which apply since April 29.pdf . Now. issues dealing with social security regimes. These provisions do not encompass issues related to tax. etc. alimony. 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 a reminder. 66 (“Establishment and subsequent amendment of the attestations and forms referred to in point (b) of Article 45 (3).net/docs/3fccda38-481c-4bf1-b41b-b07fc5346654.and articles 65 (“Establishment and subsequent amendment of the list containing the information referred to in Article 3 (2). which is to cover all spouses/partner’s assets. they are operating a unification of the applicable law. and Articles 58. 6 See both Articles 21: « Unity of the applicable law ». 8 As a result. and more precisely to the patrimonial relationships between spouses or partners. 59 and 60”). validity of the marriage/partnership.4 Therefore. as to the Matrimonial Property Regimes. as well as to their patrimonial relationships with third parties that are the consequences of the marriage or the partnership and their termination. how will this unified applicable law be determined in the first place? 3 See Articles 69 of both Regulations: « Transitional provisions ». are here excluded issues related to spouses/partners’ civil capacity. although few technical exceptions are provided for under articles 70 (“Entry into force”) of both Regulations. 8 Available on line at : https://assets. up to now. which apply since July 29.5 Within their assigned scope. 6 These provisions are also of “universal application”: as a consequence. 1978 relating to the law applicable to Matrimonial Property regimes. 7 More specifically. customs or administrative issues either. 4 See definitions provided for under Articles 3 § 1 of both Regulations. These new provisions relate to civil patrimonial law only.hcch. 2 . 1992 (ie since it came into force in this country). back to a broader overview.

in principle three possible connections are successively available. 14 See EU Matrimonial Property Regime Regulation 2016/1103. or. it is worth pointing out that all changes as to the Matrimonial Property Regime/Partnership applicable law will be effective for the future only. 11 See EU Partnership Regulation 2016/1104. both Regulations provide for the following suppletive connections: . 9 . or. the law of the State where the parties.…with which the spouses jointly have the closest connection at the time of the marriage. under option. The Regulations provide also that “Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing”. 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. or at least one of them. in principle. is habitually resident when entering in this marriage /partnership. 10 . 12 As to formal requirements. 10 See both Regulations Articles 22 1 (b). 12 See both Articles 22 2 & 3.11 Under both Regulations. But still. 13 2. 13 See both Articles 23 4. ie to the law of the State : . or on the Regulations suppletive (ie subsidiary) provisions: 1.…of the spouses’ common nationality at the time of the marriage. The Optio Juris : the choice of the applicable law Both regulations provide that the spouses/partners are allowed. for the partners only. 14 . which would have allowed a subjective connection to the chosen applicable law. the law of the State where the registered partnership was created. As to partnership.Both for the Matrimonial Property Regimes and the Partnership. the applicable law will depend either upon the consequences of the parties’ choice. . 15 See EU Partnership Regulation 2016/1104. As to matrimonial property regime. to submit their initial or thereafter voluntarily modified matrimonial property regime/partnership to: .…of the spouses’ first common habitual residence after their marriage. if still not met. Article 26 1. 3 . Article 26 1 & 2. 15 9 See both Regulations Articles 22 1 (a). except if provided otherwise by the spouses/partners. if such requirement is not met. or the law of either parties’ nationality. only one connection is made available here : it is to the law of the State where the registered partnership was created. Article 22 1 (c). or. dated and signed by both parties. . no retroactive changes in the applicable law will be allowed if those changes could be impairing on third parties’ rights under such initial law. the choice of the applicable law to the matrimonial property regime/partnership must be executed in writing.

mortis causa termination of the matrimonial property regime or the partnership (by death of one party). 17 As a consequence. it will always be possible to set aside a provision of the otherwise applicable law. subsidiary jurisdiction. Briefly. Nonetheless. 19 See both Regulations Articles 4 to 19. Article 26 § 2. 4 . 16 More generally. Apart from those cases. another international private law traditional mechanism. it must be highlighted that both Regulations have provided for two of the traditional safeguards encountered in Private International Law.eu/LexUriServ/LexUriServ. or restrict the application of the overriding mandatory provisions of the same. 18 See both Regulations Articles 32. or dissolution of the partnership). 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. 22 See both Regulations Articles 7 to 11. . Article 26 § 3 and EU Partnership Regulation 2016/1104. 17 See both Regulations Articles 30 & 31. alternative jurisdiction. they are governed in both Regulations under similar provisions 19. which are the mechanisms of Overriding Mandatory Provisions on the one hand.do?uri=CELEX:32003R2201:EN:HTML 21 See both Regulations Articles 6. it can be derogated to those connecting principles. if said law should obviously be incompatible with the Public Policy of the State. repealing Regulation (EC) No 1347/2000. when faced to such significant regulation changes. 18 Last and regarding the Jurisdiction rules.europa. 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. 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: . to that effect exceptions are set under both Regulations when parties are placed in a judiciary context. both Regulations have expressly excluded the possibility of “Renvoi” . on line at https://eur-lex. although it had been previously maintained in the EU Succession Regulation. both Regulations set forth traditional successive connections 21 and other traditional EU regulation jurisdiction rules. jurisdiction based on the voluntary appearance of the defendant.and/or inter vivos termination of the like (by divorce of the spouses. to wit : choice of Court. and Public Policy (“Ordre Public”) on the other.22 As we may foresee and once again. and Forum necessitatis.However.