1 Which law applies?
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, if the spouses have not agreed otherwise, the law of the country which became the domicile of both spouses after marriage is applied to the spouses' property relations. If the domicile of the spouses has been transferred to another country later on, the law of that country is applied, if the spouses have lived there for at least five years. The law of the country in question will, however, be applied immediately after the change of domicile, if the spouses have had a domicile in that country earlier on during their marriage, or if both are citizens of that country. However, the law applied to the spouses' property relations does not change when the domicile of the spouses is transferred to another country later on, if the spouses or betrotheds have determined the law to be applied to their property relations by contract; or, due to the dissolution of the marriage, separation or pending divorce proceedings, a spouse has gained the right to demand a division of the marital property before the time when the law of the other country would become applicable. If the spouses do not have a domicile in the same country, the law of the country to which they have, all things considered, the closest connection will be applied to their property relations (§ 129 Marriage Act). Besides that, the Nordic Convention between Denmark, Finland, Iceland, Norway and Sweden comprises almost identical conflict of laws provisions on marriage, adoption and guardianship and is applicable when both spouses are citizens of a contracting state at the time of marriage and then establish their domicile in a contracting state.
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. By way of exception and according to article 62 of the EU Regulation, specific conventions between Denmark, Finland, Iceland, Norway and Sweden continue to be applicable between all their parties.
For the other cases, 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, betrotheds and spouses are entitled to determine the law to be applied to their property relations by agreement. The agreement is to be made in writing for it to be valid. The law of the country in which a spouse has his/her domicile, or whose citizen a spouse is at the time the agreement is made, can be determined as the law to be applied to the spouses' property relations. If the domicile of one or both spouses has been transferred to another country during the marriage, also the law of the country in which both spouses last were domiciled at the same time can be selected as the law to be applied. An agreement over an amendment or a cancellation of the agreement on the choice of law is to be made in writing for it to be valid (§ 130 Marriage Act).
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.
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.
By way of exception and according to article 62 of the EU Regulation, specific conventions between Denmark, Finland, Iceland, Norway and Sweden continue to be applicable between all their parties.
