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, Slovenian national rules apply. The spouses’ personal and property relations are regulated by the law of the country of which both spouses are citizens. If they are citizens of different countries, the law of the country of their permanent residence is applied. If they are not citizens of the same country and do not have a permanent residence in the same country, the law of the country in which they were last jointly resident is applied. If the applicable law cannot be determined according to these rules, the law of the country to which the spouses have the closest relation is applied (Art. 38(1) of the Private International Law and Procedure Act).
Likewise, property relations between unmarried cohabiting partners are governed by the law of the country of their common citizenship. If they do not share a common citizenship, the law of the country of their joint residence is applied.
If a married couple has entered into an agreement concerning their property, the applicable law shall be the law that was applicable to their property relations at the time they entered into the agreement.
Bilateral conventions on international legal assistance that contain conflict-of-law rules on matrimonial property relations have been concluded with the Czech Republic, France, Hungary, Mongolia, Poland, Romania, the Russian Federation and Slovakia (see http://www.mp.gov.si/).
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, spouses may choose the law which shall apply to their property relations if the law originally applicable to their property relations allows such a choice (Art. 39 of the Private International Law and Procedure Act). However, the selected law will not be applied if the effect of its application would be contrary to the public policy of the Republic of Slovenia (Art. 6 of the Private International Law and Procedure Act). Slovenian law itself does not provide for the choice of applicable 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.
