1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

For marriages concluded until 28 January 2019, Czech national rules apply. The basic rules for the determination of the applicable law can be found in Act No. 91/2012 Coll. on Private International Law. According to Section 49 para. 3 of the Act on Private International Law, property relations between spouses are governed by the law of the state of the spouses’ residence. If the spouses have their habitual residence in different countries, their property relations shall be governed by the law of the state of which both spouses are citizens. If the spouses have different nationalities, such relations are governed by the Czech Law. This matter is also regulated by bilateral treaties on legal aid in civil, commercial and family matters concluded between the Czech Republic and former socialist states (e.g. Treaty with Bulgaria dated 25.11.1976, Treaty with Poland dated 21.12.1987, Treaty with the former Socialist Federal Republic of Yugoslavia dated 21.1.1964, Treaty with Romania dated 11.07.1994), where the connecting factor of nationality is decisive for the determination of the applicable law. The connecting factor of the spouses’ common residence is only taken into account if the spouses have different nationalities. The Treaty with the former Soviet Union signed on 12.8.1982 (binding in relation to Russia, Moldova, Kyrgyzstan and Georgia) and the Treaty with Ukraine dated 28.5.2001 provide for the connecting factor of the spouses’ common residence. The regulations contained in these international treaties shall be applied instead of the statutory regulation. Registered partnerships and similar relationships and their effects, including the modification of personal and property relations of partners, are governed by the law of the state in which the registered partnership or similar relationship was concluded (Section 67 para. 2 of the Act on Private International Law).

Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.

In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.

• The spouses’ first common habitual residence after the conclusion of the marriage.
• Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
• Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.

By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

Until 28 January 2019, under Section 49 para. 4 of the Act on Private International Law, spouses may agree that their property relations shall be governed by:

• the law of the state of which one of the spouses is a national, or
• the law of the state in which one of the spouses has his/her habitual residence, or
• in case of real estate property, the law of the state where such property is located, or
• the Czech law.

The agreement must be drawn up by a civil law notary in the form of an authentic instrument or a similar form, if the agreement is entered into abroad.

Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23. If the law under Article 23/2 of the Regulation is the law of the Czech Republic, such a choice of applicable law must be made in the form of an authentic instrument, i.e. the instrument issued by a public body within the scope of its powers or an instrument declared to be an authentic instrument by a statute. According to Czech law (section 3026 of the Czech Civil Code) the authentic instrument is to be understood as a notarial deed.

Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.

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