Europe: New EU property regulations for marriages and registered civil partnerships

According to information from the Commission, there are currently approx. 16 million “cross-border” marriages and registered civil partnerships in the EU. With the so-called EU Property Regime Regulations (Regulations (EU) 2016/1103 and 2016/1104) that became effective on 29 January 2019 in the context of the so-called strengthened collaboration among the current 19 member states, the EU has set the goal for the creation of a uniform legal framework.

Essential content of the regulation
The core point of the new regulation is the creation of a legal framework for cross-border marriages and registered civil partnerships that is as uniform as possible and by which couples can now select the law applicable to their property regime and also the place of jurisdiction and, for example, coordinate it with the law of succession:

Place of jurisdiction: In the event of the death of one of the partners, the court that now decides on his/her succession at the same time has jurisdiction for disputes over the property regime.

The same applies to the court that deals with divorce, separation or annulment of the marriage. This is to prevent the Plaintiff from gaining an unjustified advantage by the tactical selection of different jurisdictions.

Subsidiarily, the jurisdiction is governed by a series of additional criteria such as the usual residence or the joint citizenship of the couple.

Applicable law: According to the new regulation, the couple can now select a common uniform law that regulates their property regime to the extent it relates to the life situation of the couple, i.e. either the law of the usual residence or the law of the nationality of both or one of them which does not have to be the law of a member state. It must be observed that a choice of law, once it is made, can be changed according to both regulations: This applies without limitation for the future and for the past to the extent that no rights of third parties are affected by this.

In the case of a lack of choice of law, the law of the state in which the couple have their usual residence after marriage/registration applies, in principle.

Form: The corresponding agreement is subject to the written form, must be provided with the respective date and signed by both persons; in addition, member states can introduce additional form requirements, such as mandatory notarisation.

Despite these standardisations, the legal basis continues to be complex. This is due to the multifaceted regulations of property law and the necessary coordination with the additional existing family law regulations. Due to this complexity, it is always advisable to ask an expert about the consequences of selecting a property regime.

Authors: Florian Bünger & Moritz Tauschwitz