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?
Marriages celebrated prior to 1 September 1992 are subject to ordinary law while those contracted after this date and until 28 January 2019 come under the Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes.
The law applicable to matrimonial property regimes for spouses married prior to 1 September 1992 is in principle determined by the location of the first matrimonial domicile. The law thus designated governs all property relations between spouses regardless of where their assets are located. This connection criterion is permanent: the law of the first matrimonial domicile applies throughout the duration of the marriage, even if the spouses move to another State.
For marriages celebrated after 1 September 1992, the Hague Convention of 14 March 1978 applies to property relations between spouses, with the exception of the primary regime which remains governed by the French provisions applicable under mandatory provisions (Art. 212-226 CC). Where the spouses have not specified any choice prior to the marriage, the applicable law is in principle that of their first habitual residence. Contrary to ordinary law, the Hague Convention stipulates three cases where the applicable law automatically changes (Art. 7 paragraph 2):
- where the spouses establish their residence in the State of their common nationality;
- where they reside more than 10 years in a State after the marriage;
- for spouses who had not established their habitual residence on the territory of the same State after the marriage (and whose matrimonial property regime was consequently subject to the law of the State of common nationality), where they establish their habitual residence in the same State.
This automatic change shall have effect solely in the future (however, Art. 8 allows spouses to submit all of their assets to the new law, provided that this choice does not adversely affect the rights of third parties).
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)?
The spouses may designate the law applicable to their matrimonial property regime. For marriage contracts drawn up prior to the entry into force of the Hague Convention of 14 March 1978 (1 September 1992), spouses could choose any applicable law. Since the entry into force of the Hague Convention and until 28 January 2019, the designation is limited to one of the three laws specified in Art. 3: the law of a State of which either spouse is a national at the time of designation, the law of the State in which either spouse has his/her habitual residence at the time of designation, or the law of the first State where one of the spouses has established a new habitual residence after marriage. The Hague Convention also allows spouses to submit all or some immovables to the law of the place where these immovables are situated (Art. 3 paragraph 2). The Hague Convention requires that the designation of the applicable law be expressly stipulated or that it arise by necessary implication from the provisions of the marriage contract (Art. 11).
Spouses may also change the law applicable to their matrimonial property regime during their marriage. In this event, the Hague Convention applies even to spouses married prior to its entry into force, provided that the choice was made after the Convention entered into force (Art. 21). Here, designation is limited to one of the two laws specified in Art. 6: the law of any State of which either spouse is a national at the time of designation or the law of the State in which either spouse has his/her habitual residence at the time of designation. Act 97-987 of 28 October 1997 Convention allows spouses to submit all or some immovables to the law of the place where these immovables are situated (Art. 6 paragraph 2). The new law applies retroactively to the date of the marriage, subject to the rights of third parties, but the spouses may decide that the change in the applicable law and therefore possibly the matrimonial property regime will only apply for the future: in this case, they should be advised to liquidate their previous matrimonial property regime). Act 97-987 of 28 October 1997 amended the Civil Code to adapt it to the provisions of the Hague Convention and to organise the disclosure regarding the change of matrimonial property regime obtained through the application of a foreign law.
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.
