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, German national rules apply. In the absence of a choice of law, the spouses’ common national law at the time of the marriage shall prevail. If the spouses do not have the same nationality at that time, the law of the State in which they jointly reside shall apply. Alternatively, the effects of the marriage shall be subject to the law with which the spouses are jointly most closely connected with (art. 15 par. 1 EGBGB [the Introductory Act to the German Civil Code] in conjunction with art. 14 par. 1, 1-3 EGBGB).
Art. 16 par. 1 EGBGB contains a provision concerning the protection of third parties acting in good faith who legitimately rely on the application of the German matrimonial property regime in the absence of any entry to the contrary in the Register of Matrimonial Property Regimes.
The German-Iranian Friendship Treaty of 17 February 1929 provides for the application of the respective national law to spouses who are both Iranian in Germany and spouses who are both German in Iran (cf. final protocol relating to art. 8 par. 3 of the Treaty). Moreover, by virtue of art. 15 par. 4 EGBGB, the provisions of the Law on the matrimonial property regime of (German) displaced persons and refugees apply.
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, in principle, German law allows the choice of applicable law but limits it to certain legal systems. For example, it is possible to choose the law of a State if one of the spouses is a national of that State or has his/her habitual residence there. Or, with sole reference to real estate, the law of the place in which the property is situated may be chosen (art. 15 par. 2 EGBGB). A choice of law must be recorded in an authentic instrument. Solely in the case of this choice being made abroad, it is sufficient to meet either the formal requirements applicable to marriage contracts imposed by the law chosen or by the law of the place in which the choice is made (art. 14 par. 4 EGBGB and art. 15 par. 3 EGBGB).
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. The spouses may provide for their matrimonial property arrangements by contract (marriage contract). The marriage contract must be recorded by a notary, and both parties must be present. (Sec. 1408, 1410 German Civil Code (“BGB”)).
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.
