By George Kazoleas, Lawyer
The EU Regulations clarifying the rules applicable to
property regimes for international married couples or registered partnerships
apply from 29 January 2019. Τhese are the Regulations (EU) 2016/1103 of 24
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 and (EU) 2016/1104 of 24 June 2016 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.
The regulations establish clear rules in cases of divorce or
death and bring an end to parallel and possibly conflicting proceedings in
various Member States, for instance on property or bank accounts. In short,
they bring more legal clarity for international couples
[1].
As regards the jurisdiction in the event of the death of one
of the spouses, Article 4 of Regulation (EU) 2016/1103 provides that where a
court of a Member State is seised in matters of the succession of a spouse
pursuant to Regulation (EU) No 650/2012, the courts of that State shall have
jurisdiction to rule on matters of the matrimonial property regime arising in
connection with that succession case.
With regard to the Jurisdiction in cases of divorce, legal
separation or marriage annulment, Article 5 of the above Regulation provides
that where a court of a Member State is seised to rule on an application for
divorce, legal separation or marriage annulment pursuant to Regulation (EC) No
2201/2003, the courts of that State shall have jurisdiction to rule on matters
of the matrimonial property regime arising in connection with that application.
It is noted that the above Regulation should not apply to
other preliminary questions such as the existence, validity or recognition of a
marriage, which continue to be covered by the national law of the Member
States, including their rules of private international law.
Regulation (EU) 2016/1104 was entered into force to provide
unmarried couples with legal certainty as to their property and offer them a
degree of predictability, through the mutual recognition of decisions given in
the Member States in matters of the property consequences of registered
partnerships.
Concerning the jurisdiction in the event of the death of one
of the partners Article 4 of the above Regulation, provides that where a court
of a Member State is seised in matters of the succession of a registered
partner under Regulation (EU) No 650/2012, the courts of that State shall have
jurisdiction to rule on matters of the property consequences of the registered
partnership arising in connection with that succession case.
As regards the jurisdiction in cases of dissolution or
annulment, Article 5 par.1 provides that where a court of a Member State is
seised to rule on the dissolution or annulment of a registered partnership, the
courts of that State shall have jurisdiction to rule on the property
consequences of the registered partnership arising in connection with that case
of dissolution or annulment, where the partners so agree.
As it was not possible to reach unanimity among all
Member States, the rules will apply in 18 Member States: Austria, Belgium,
Bulgaria, Croatia, Cyprus, Czechia, Finland, France, Germany, Greece, Italy,
Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain and Sweden.
The common rules on jurisdiction, conflict of laws and
recognition and enforcement in the participating Member States do not affect
the rules of the non-participating Member States. The courts of the
non-participating Member States will continue to apply their existing domestic
rules to determine the jurisdiction and applicable law and to the recognition
and enforcement of decisions in the matter of property regimes of international
couples, covering both matrimonial property regimes and the property
consequences of registered partnerships.
The new regulations clarify also which national law prevails
in case the rules of several countries could potentially apply. In addition,
they facilitate the recognition and enforcement of a judgment given in one
Member State on property matters in another Member State.
The 18 Member States that joined the enhanced cooperation
make up 70% of the EU population and represent the majority of international
couples who live in the European Union. The remaining Member States can join
both Regulations any time.
[2]
It should also be mentioned that
in 14 EU countries, it is open to both opposite-sex and same-sex
couples: Austria, the Netherlands, Belgium, Germany, Malta, Ireland,
Finland, France, Denmark, Luxembourg, the United Kingdom, Spain, Sweden
and Portugal.
21 EU countries allow registered partnerships (also for
same-sex couples): Austria, Belgium, Croatia, Cyprus, Czechia,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Sweden and the
United Kingdom.
Read the full text of the Regulations:
_________________________
[1] European
Commission/press release 29.1.2019
[2] European Commission/press release 29.1.2019
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