A Dutch woman and a Portuguese man married in Lisbon, lived first in Amsterdam and now own a flat in Porto and savings in a Dutch bank. A German couple retired to Spain and bought a villa there. A French-Italian family has a house in each country. When such couples divorce, or one spouse dies, a question arrives before any figure is discussed: whose rules decide what belongs to whom? In the Member States that take part in it, Regulation (EU) 2016/1103 gives a single answer to that question.
This guide is written for international couples, for spouses who live in a Member State other than their own and for the advisers helping them. It follows the text of Council Regulation (EU) 2016/1103 of 24 June 2016 as published in the Official Journal. The Regulation deals only with matrimonial property; maintenance, divorce itself and succession have their own EU instruments and national rules. A sister regulation, Regulation (EU) 2016/1104, applies to the property consequences of registered partnerships and is not covered here.
What the Regulation covers, and what it leaves out (Articles 1 and 3)
The Regulation applies to matrimonial property regimes (Article 1(1)). Article 3(1)(a) defines a matrimonial property regime as a set of rules concerning the property relationships between the spouses and in their relations with third parties, as a result of marriage or its dissolution. A matrimonial property agreement is any agreement between spouses or future spouses by which they organise their matrimonial property regime (Article 3(1)(b)).
Article 1(2) lists what is excluded. The Regulation does not govern the legal capacity of the spouses; the existence, validity or recognition of a marriage; maintenance obligations; the succession to the estate of a deceased spouse; social security; the entitlement to transfer or adjust, on divorce, legal separation or annulment, pension rights accrued during the marriage that have not generated pension income during the marriage; the nature of rights in rem relating to a property; and any recording of rights in property in a register, including the legal requirements for recording and the effects of recording or failing to record. It also does not apply to revenue, customs or administrative matters (Article 1(1)).
The practical consequence is that a single family dispute may involve several regimes at once. The court that divides the matrimonial property under this Regulation may have to apply other rules to maintenance or succession, and the land registry of the State where a house is located keeps its own recording requirements.
Where the Regulation applies, and from when (Articles 69 and 70)
The Regulation was adopted through enhanced cooperation, not by all Member States. It applies in the Member States that participate in the enhanced cooperation authorised by Council Decision (EU) 2016/954 (Article 70(2)). At the outset these were eighteen: Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden, which requested it, together with Cyprus, which asked to join in March 2016 (Recital 11). A State that joins later applies the Regulation from the date set in the decision on its participation (Article 70(2)); check the European e-Justice Portal for the current list before relying on it.
The Regulation has applied since 29 January 2019 (Article 70(2)). Its jurisdiction and recognition rules apply to legal proceedings instituted, authentic instruments drawn up or registered and court settlements approved or concluded on or after that date (Article 69(1)). The applicable-law rules in Chapter III apply only to spouses who married, or who specified the law applicable to their matrimonial property regime, after 29 January 2019 (Article 69(3)). A couple who married earlier and never made a choice will therefore find their applicable law determined by the national conflict rules of the State concerned, not by Article 26.
For a non-participating State, the Regulation's rules do not bind its courts. A couple living in such a State, or owning property there, should expect that State's own private international law to decide these questions.
Which court decides: death, divorce and other cases (Articles 4 to 9)
The Regulation ties the property question to the court already dealing with the family event. Where a court of a Member State is seised of the succession of a spouse under the EU Succession Regulation (No 650/2012), the courts of that State have jurisdiction on matters of the matrimonial property regime arising in connection with that succession (Article 4).
Where a court of a Member State is seised of an application for divorce, legal separation or marriage annulment under the EU divorce-jurisdiction rules, the courts of that State have jurisdiction on the property regime arising in connection with that application (Article 5(1)). In four situations this extension depends on the spouses' agreement: where the divorce court's jurisdiction rests only on the applicant's habitual residence of at least one year, or on the applicant's nationality combined with at least six months' residence, where the court is seised to convert a legal separation into divorce, or where it relies on residual jurisdiction (Article 5(2)). An agreement made before the court is seised must meet the form in Article 7(2) (Article 5(3)).
In other cases, for example where the spouses want to divide property during the marriage, or where no court has jurisdiction under Articles 4 or 5, jurisdiction follows a cascade (Article 6): the courts of the Member State (a) where the spouses are habitually resident when the court is seised; failing that (b) where they were last habitually resident, if one of them still lives there; failing that (c) where the respondent is habitually resident; failing that (d) of the spouses' common nationality.
In the cases covered by Article 6 the parties may choose the court: the courts of the Member State whose law applies under Article 22 or Article 26(1)(a) or (b), or the courts of the Member State where the marriage was concluded, with exclusive jurisdiction (Article 7(1)). The choice must be in writing, dated and signed; an electronic communication that provides a durable record counts as writing (Article 7(2)). A court whose law applies may also acquire jurisdiction if the defendant enters an appearance, unless the appearance is to contest jurisdiction, and the court must first inform the defendant of the right to contest (Article 8). A court may exceptionally decline jurisdiction if, under its private international law, the marriage is not recognised for these proceedings (Article 9(1)).
Which law applies if the couple made no choice (Articles 20, 21 and 26)
Absent a valid choice, the law applicable to the matrimonial property regime is the law of the State (a) of the spouses' first common habitual residence after the conclusion of the marriage; failing that (b) of the spouses' common nationality at the time of the marriage; failing that (c) with which the spouses jointly have the closest connection at the time of the marriage, taking into account all the circumstances (Article 26(1)). If the spouses have more than one common nationality, only points (a) and (c) apply (Article 26(2)).
The law so determined applies whether or not it is the law of a Member State (Article 20), and it applies to all assets falling under the regime, regardless of where they are located (Article 21). A couple whose first common home was in Amsterdam will, under point (a), have Dutch law govern their regime, including a flat later bought in Porto. The reference is to the internal rules of that State, not to its conflict rules (Article 32).
There is a narrow exception for couples who moved. On the application of either spouse, the court may apply the law of another State if the applicant shows that the spouses had their last common habitual residence there for a significantly longer period than in the State of their first common residence, and that both relied on that other law in arranging or planning their property relations (Article 26(3)). That law then applies from the marriage unless one spouse disagrees, in which case it takes effect from the establishment of the last common residence; it cannot adversely affect third parties' rights under the first law, and the exception is not available where the spouses concluded a matrimonial property agreement before establishing their last common residence in that other State (Article 26(3)).
Choosing the law in advance: choice-of-law and matrimonial property agreements (Articles 22 to 25)
Spouses or future spouses may designate or change the law applicable to their regime, but only among two options: the law of the State where they, or one of them, are habitually resident at the time of the agreement, or the law of a State of nationality of either of them at that time (Article 22(1)). A change made during the marriage has effect for the future only, unless the spouses agree otherwise (Article 22(2)), and a retroactive change cannot adversely affect the rights of third parties (Article 22(3)).
The form is set at EU level as a minimum: the choice must be in writing, dated and signed by both spouses, with an electronic durable record counting as writing (Article 23(1)). Additional formal requirements of the Member State of the spouses' common habitual residence also apply; if they live in different Member States with different requirements, complying with either law is enough; if only one lives in a Member State that has additional requirements, those apply (Article 23(2)-(4)). Whether consent was validly given is judged by the chosen law, but a spouse may rely on the law of his or her habitual residence at the time the court is seised to show lack of consent where it would be unreasonable to judge the conduct under the chosen law (Article 24).
A matrimonial property agreement that organises the regime itself follows the same formal layering (Article 25(1)-(2)) and, in addition, any formal requirements of the law applicable to the regime (Article 25(3)). Under Article 27(g) that applicable law also governs the material validity of the agreement. For a couple with property in several States, a single agreement that satisfies the formal requirements of every relevant law avoids a later dispute over form.
| Question | Rule | Article |
|---|---|---|
| Divorce pending in a participating State | Divorce court also decides the property regime (agreement needed in four listed cases) | 5 |
| Death of a spouse | Succession court also decides the property regime | 4 |
| Other disputes | Common habitual residence → last common residence → respondent's residence → common nationality | 6 |
| Choice of court | Courts of the chosen law's State or of the place of marriage; written, dated, signed | 7 |
| Law chosen by the couple | Habitual residence or nationality of either spouse at the time of the agreement | 22 |
| No choice | First common habitual residence → common nationality → closest connection | 26(1) |
| Assets in several countries | One law for all assets | 21 |
| Third parties | Regime law only if they knew or should have known | 28 |
| Time | Applicable-law rules only for marriages or choices after 29 January 2019 | 69(3) |
What the applicable law decides, and how third parties are protected (Articles 27 to 31)
The applicable law governs, among other things, the classification of property into categories during and after the marriage; the transfer of property from one category to another; the responsibility of one spouse for the other's debts; the spouses' powers, rights and obligations regarding property; the dissolution of the regime and the partition, distribution or liquidation of property; the effects of the regime on legal relationships between a spouse and third parties; and the material validity of a matrimonial property agreement (Article 27).
A spouse cannot rely on the regime's law against a third party in a dispute with that party unless the third party knew or, with due diligence, should have known of it (Article 28(1)). Knowledge is presumed where the regime's law is the law governing the transaction, the law of the State where the contracting spouse and the third party have their habitual residence, or, for immoveable property, the law of the State where it is situated, or where a spouse complied with the disclosure or registration requirements of one of those laws (Article 28(2)). Otherwise the effects on the third party are governed by the law of the transaction or, for immoveable property or registered assets, the law of the place of the property or register (Article 28(3)).
The court of the forum keeps some control. A right in rem unknown in the State where it is invoked is adapted to the closest equivalent right there (Article 29); the forum's overriding mandatory provisions still apply (Article 30); and a provision of the applicable law may be refused only if its application is manifestly incompatible with the forum's public policy (Article 31).
Recognition of decisions and acceptance of authentic instruments (Articles 36, 37 and 58)
A decision given in a participating Member State is recognised in the other participating Member States without any special procedure (Article 36(1)). Recognition may be refused only on the grounds in Article 37: if it is manifestly contrary to public policy in the State where recognition is sought; if the decision was given in default of appearance and the defendant was not served in sufficient time and in a way that allowed a defence, unless the defendant failed to challenge the decision when it was possible to do so; if it is irreconcilable with a decision between the same parties in the recognising State; or if it is irreconcilable with an earlier decision in another Member State or a third State involving the same cause of action and parties that is itself recognisable there.
An authentic instrument drawn up in one Member State, such as a notarial marriage contract, has the same evidentiary effects in another Member State as in its State of origin, or the most comparable effects, provided this is not manifestly contrary to public policy there (Article 58(1)). Challenges to the authenticity of the instrument are decided by the courts of the Member State of origin under its law (Article 58(2)).
Practical steps for international couples
Check the dates first. Married, or made a choice of law, after 29 January 2019? Then the applicable-law rules of the Regulation apply to you in the participating States (Article 69(3)). Married earlier without a choice? Ask how the national conflict rules of each relevant State treat your regime.
Map your connections. Note where you first lived together after the marriage, your nationalities at the time of the marriage and where each asset is. These facts drive Article 26(1) and Article 21.
Consider a written choice of law. Only the laws of either spouse's habitual residence or nationality at the time of the agreement are available (Article 22(1)); follow the formal requirements of Articles 23 and 25, including any additional national form, and keep in mind that a change during the marriage looks forward unless you agree otherwise (Article 22(2)).
Think about third parties. Where a spouse deals with banks, buyers or lenders, the regime law may not be enforceable against them unless they knew or should have known of it (Article 28); disclosure or registration where the law of the transaction or the property requires it can matter.
Keep the court and the law aligned. A choice-of-court agreement for the courts of the State whose law applies (Article 7) can avoid a court having to apply foreign law. Brisamo can connect you with a family lawyer in the relevant country to review your situation.
Frequently asked questions
Does Regulation 2016/1103 apply in every EU country?
No. It applies in the Member States that participate in the enhanced cooperation authorised by Decision (EU) 2016/954 (Article 70(2)). At the outset these were eighteen States, listed in Recital 11 of the Regulation; a State that joins later applies it from the date in its own decision. Check the European e-Justice Portal for the current list.
We married in 2015. Does the Regulation decide which law governs our property?
The applicable-law rules in Chapter III apply only to spouses who married, or who specified the law applicable to their regime, after 29 January 2019 (Article 69(3)). If you married earlier and made no choice, the national conflict rules of the State concerned decide. If you make a choice of law now, the Regulation's rules on that choice apply.
We never chose a law. Which law applies to our property?
If you married after 29 January 2019, the law of the State of your first common habitual residence after the marriage; failing that, of your common nationality at the time of the marriage; failing that, the law of the State with which you jointly had the closest connection at that time (Article 26(1)). That law covers all assets under the regime, wherever they are (Article 21).
Which laws can we choose?
The law of the State where either of you is habitually resident at the time of the agreement, or the law of a State of which either of you is a national at that time (Article 22(1)). The agreement must be in writing, dated and signed by both of you, and additional national formal requirements may apply (Article 23).
Our divorce is pending in Spain. Will the Spanish court also divide our property?
Where a court of a participating Member State is seised of the divorce under the EU divorce-jurisdiction rules, that State's courts have jurisdiction on the property regime connected with it (Article 5(1)). If the divorce court's jurisdiction rests only on the grounds listed in Article 5(2), such as the applicant's one-year residence, the property question goes to that court only if both spouses agree.
Can a bank or buyer be bound by our matrimonial property regime?
Only if the third party knew or, with due diligence, should have known of the law governing your regime (Article 28(1)). Knowledge is presumed in the situations listed in Article 28(2), for example where the regime's law is the law of the transaction or, for immoveable property, the law of the place where the property is situated.
Is a court decision on our property recognised in another participating State?
Yes. A decision given in a participating Member State is recognised in the others without any special procedure (Article 36(1)); recognition may be refused only on the limited grounds in Article 37, such as manifest incompatibility with public policy.