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1 Yearbook of Private International Law 13 Yearbook of Private International Law Volume XIII (2011) Bearbeitet von Petar Sarcevic, Andrea Bonomi, Paul Volken, Gian Paolo Romano 1. Auflage Buch. XIV, 701 S. In Leinen ISBN Format (B x L): 16 x 24 cm Zu Inhaltsverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 YEARBOOK OF PRIVATE INTERNATIONAL LAW VOLUME XIII 2011 Founding Editors PETAR ŠARČEVIĆ Paul Volken ANDREA BONOMI Professor at the University of Lausanne Editors Gian Paolo Romano Professor at the University of Geneva Published in Association with SWISS INSTITUTE OF COMPARATIVE LAW LAUSANNE, SWITZERLAND s e l p sellier european law publishers

3 ISBN (print) ISBN (ebook) The Deutsche Nationalbibliothek lists this publication in the Deutsche Na tionalbibliografie; detailed bibliographic data are available on the Internet at by sellier european law publishers GmbH, Munich, and Swiss Institute of Comparative Law. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permis sion of the publisher. Production: Karina Hack, Munich. Printing and binding: Friedrich Pustet KG, Regensburg. Printed on acid-free, non-ageing paper. Printed in Germany.

4 THE EU PROPOSAL ON MATRIMONIAL PROPERTY REGIMES SOME GENERAL REMARKS Ilaria VIARENGO * I. Introduction II. III. IV. Characterisation of Matrimonial Property Regime The Scope of Application of the Future Regulation Jurisdiction in Other Cases and Residual Jurisdiction V. Choice of Law A. The Role of Party Autonomy B. The Functioning of the Optio Juris C. Formal Requirements VI. Mutability of the Applicable Law I. Introduction As is well-known, a common harmonised system of conflicts of laws on matrimonial property regimes covering jurisdiction, recognition and enforcement of decisions as well as applicable law is currently lacking in the European Union. This matter is explicitly excluded from the Brussels I Regulation, 1 Rome I Regulation 2 and Rome II Regulation. 3 For its part, the recent Regulation (EU) No 1259/2010 of 20 December on the law applicable to divorce and legal Milano). * Professor of International Law at the University of Milan (Università degli Studi di 1 Article 1(2)(a) of Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12 of 16 January 2001, p. 1 et seq. 2 Article 1(2)(c) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177 of 4 July 2008, p. 6 et seq. 3 Art. 1(2)(b) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), OJ L 199 of 31 July 2007, p. 40 et seq. 4 Article 1(2)(e) of Council Regulation (EU) No 1259/2010, of 20 December 2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 343 of 29 December 2010, p. 10 et seq. For the first commentaries, see: Yearbook of Private International Law, Volume 13 (2011), pp & Swiss Institute of Comparative Law Printed in Germany

5 Ilaria Viarengo separation does not specifically apply to the property consequences of a marriage, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings. Despite this absence of common legislation, the number of international couples or couples with an international dimension is increasing: spouses of different nationalities, couples living in a state where they are not nationals, owning assets in different states or even couples divorcing or dying in a country other than that of their origin. The great variety of solutions adopted by each Member State 5 creates a situation of uncertainty for spouses who may find themselves subject to different matrimonial property regimes, which depend on the court having jurisdiction. Moreover, this may lead to disadvantageous consequences for the rights of third parties, as well as the effective exercise of the right of free movement of persons. Following a request of the Council dating back to 2000, 6 the Commission presented proposals for two regulations, one dealing with married couples, the other with couples in registered partnerships, and both prepared by a Green Paper of The Commission, therefore, addressed the issue in broad terms, not only dealing with the property rights of married couples but also with those of registered K. BOELE-WOELKI, For Better or for Worse: The Europeanization of International Divorce Law, YPIL 2010, p. 1 et seq.; P. FRANZINA, The law applicable to divorce and legal separation under Regulation (EU) no. 1259/2010 of 20 December 2010, Cuadernos de Derecho Transnacional 2011, p. 85 et seq.; P. HAMMJE, Le nouveau règlement (UE) n 1259/2010 du Conseil du 20 décembre 2010 mettant en œuvre une cooperation renforcée dans le domaine de la loi applicable au divorce et à la séparation de corps, Rev. crit. dr. int. pr. 2011, p. 291 et seq.; I. VIARENGO, Il Regolamento UE sulla legge applicabile alla separazione e al divorzio e il ruolo della volontà delle parti, Riv. dir. int. priv. proc. 2011, p. 601 et seq. 5 For a comparative analysis of matrimonial property law in Europe see A. BONOMI/ M. STEINER (eds), Les régimes matrimoniaux en droit comparé et en droit international privé, Genève 2006; W. PINTENS, Matrimonial Property law in Europe, in K. BOELE- WOELKI/ J. MILES/ J.M. SCHERPE (eds), The future of family property in Europe, Cambridge/ Antwerp/ Portland 2011, p. 20 et seq. 6 See the Explanatory Memorandum to COM(2011) 126 final, p Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2011) 126 final) and Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships (COM(2011) 127 final) both of 16 March On the Green Paper issued by the Commission on 17 July 2006 (COM(2006) 400 final) see S. BARIATTI/ I. VIARENGO, I rapporti patrimoniali tra coniugi nel diritto internazionale privato comunitario, Riv. dir. int. priv. proc. 2007, p. 603 et seq. On the two proposals and, more in general, on the initiatives of unification and harmonization of this matter see K. BOELE-WOELKI, Property Relations of International Couples in Europe: The Interaction between Unifying and Harmonizing Instruments, in H. KRONKE/ K. THORN (eds), Grenzen überwinden - Prinzipien bewahren. Festschrift für Bernd von Hoffmann zum 70. Geburtstag, Bielefeld 2011, p. 63 et seq. 200 Yearbook of Private International Law, Volume 13 (2011)

6 The EU Proposal on Matrimonial Property Regimes partners, for whom there are sharp differences in the substantive laws of the Member States and the conflict of laws rules are almost totally absent. 8 Both proposals have an ambitious goal like the other most recent EU instruments in the field of family law. They are intended to cover jurisdiction, recognition of foreign judgments and choice of law. The most obvious difference between the two proposals concerns the designation of the applicable law. Whereas spouses may specifically choose the applicable law to a certain extent, the assets of registered partners are, as a rule, subject to the law of the country where the partnership was registered, in conformity with the national laws, which do not allow the partners to choose an alternative legislation to that of the State. With reference to the proposal on matrimonial property regimes (hereinafter, the Proposal), the most delicate issues concern the scope of the future regulation and the question of the applicable law. Some proposed rules in this regard need more clarification. Rules on jurisdiction and recognition are indeed broadly in line with Regulation No 2201/ Jurisdictional rules are in principle inspired by the aim to enable citizens to have the various related procedures handled by the courts of the same Member State. In this view, the courts of a Member State having jurisdiction on divorce, separation or marriage annulment or succession upon death could be chosen to deal with matters of the matrimonial regime. Other contributions included in this special section of the Yearbook analyse this part of the Proposal. With respect to the enforcement of judgments, the proposed rules refer to the exequatur procedure existing in civil and commercial matters. As is well known, the complete abolition of the exequatur is the final objective of judicial cooperation in civil matters and it is founded on the principle of mutual recognition, the cornerstone of the standpoint of the Community. Such a solution has been followed for example in Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, at least for the decisions given in a Member State bound by the 2007 Hague Protocol. 10 Even if the future instrument fosters a very high degree of mutual trust by laying down uniform rules on 8 See the Impact Assessment accompanying the Communication from the Commission Bringing legal clarity to property rights for international couples (COM(2011) 125 of 16 March 2011) which describes the difficulties faced by international couples in the current framework of EU legislation and national rules of the Member States (SEC(2011) 327 final of 16 March 2011). 9 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338 of 23 December 2003, p. 1 et seq. 10 OJ L 7 of 10 January 2009, p. 10 et seq. In this respect see, among others, A. BONOMI, The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, YPIL 2008, p. 339 et seq.; F. POCAR/ I. VIARENGO, Il regolamento CE n. 4/2009 in materia di obbligazioni alimentari, Riv. dir. int. priv. proc. 2009, p. 820 et seq. Yearbook of Private International Law, Volume 13 (2011) 201

7 Ilaria Viarengo the applicable law and jurisdiction, the abolition of exequatur in this area is not advisable, because the rights of third parties should not be prejudiced. II. Characterisation of Matrimonial Property Regime Article 1 of the Proposal provides that the future regulation will apply to matrimonial property regimes, which are defined, in Article 2, as a set of rules concerning the property relationships of spouses, between spouses and in respect of third parties. Such a definition is very broad in order to cover all of the concepts of matrimonial property regimes used in the Member States, in compliance with the notion established by the ECJ in its judgment of 27 March 1979, de Cavel v de Cavel. In this case, the Court specified that the term rights in property arising out of a matrimonial relationship under Article 1(2) of the Brussels Convention includes not only property arrangements specifically and exclusively envisaged by certain national legal systems in the case of marriage, but also any proprietary relationships resulting directly from the matrimonial relationship or the dissolution thereof. 11 An autonomous notion should be used in the application of the future regulation, 12 as also suggested by the Commission in its comment on the Proposal. This is also required in relation to the regulations mentioned above that exclude matrimonial property from their sphere of application. But the point is that a general autonomous notion is not yet present in EU law 13. In the few sentences that can be used for this purpose, the ECJ refers to property relationships to distinguish them from maintenance obligations. In the interpretation of Article 5(1) of the Brussels Convention (and therefore of the Brussels I Regulation) referring to maintenance awarded after divorce, the ECJ ruled that if the prevailing aim of the obligation is to ensure a predetermined level of income, based on the respective needs and resources of the parties, the decision will be considered as regarding maintenance. Conversely, where the provision awarded is solely with respect to the division of 11 ECJ, 27 March 1979, C-120/79, de Cavel v de Cavel, ECR [1979], On this issue see S. BARIATTI, Principles of interpretation and characterisation in EC private international law and family matters, in J. MEEUSEN/ M. PERTEGÁS/ G. STRAETMANS/ F. SWENNEN (eds), International Family Law in the European Union, Antwerp/ Oxford 2007, p. 385 et seq. 13 In addition, an autonomous notion of marriage is still lacking in the European Union. Therefore, the existence of the marriage will be assessed under the lex fori (see Recital 10). As a result, where the law of a State allowing homosexual partnerships to marry is applicable, these relationships cannot be considered to be excluded from the regulation. This means that, for example, a same sex marriage allowed under Spanish law will be treated in the same way as an opposite sex marriage under the Proposal. 202 Yearbook of Private International Law, Volume 13 (2011)

8 The EU Proposal on Matrimonial Property Regimes property between the spouses, the decision will be considered as regarding rights in property arising out of a matrimonial relationship. 14 This characterisation by the European Court of Justice is difficult to apply in common law systems, which do not have a clear conceptual difference between maintenance and property. 15 Moreover, the definition of property requires further clarification, even referring to its application in countries, which recognize the concept. For example the personal effects of the marriage are not explicitly excluded from the scope of the proposal on matrimonial property unlike the proposal concerning the property of registered partnerships. Obviously this does not mean that they are included: in fact, they seem to be excluded on the basis of the definition in Article 2 that refers to the property relationships of spouses. Nevertheless, it is still uncertain whether the future instrument could apply to rights and duties with a secondary property content, however subordinate to the personal relationship. 16 Thus, only the mutual and unilateral rights and duties deriving from the marriage and having no impact on the property aspects such as faithfulness, cohabitation, and assistance would still be excluded. According to the definition given by the ECJ, there is no doubt that the future regulation will apply to all of the property consequences arising during the marriage, i.e. such property relationships that directly derive from the marriage. On the other hand, the characterisation of those property relationships between spouses that may arise before marriage or after its dissolution may be disputed. 14 ECJ, 27 February 1997, C-220/95, van den Boogaard v Laumen, ECR [1997], Following the guidance of the Court of Justice, the Court of Appeal in Moore of Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, set out six propositions (founded on the needs) for identifying maintenance. 15 See the Consultation Paper Matrimonial property regimes and the property consequences of registered partnerships - How should the UK approach the Commission s proposals in these areas (reference number: CP 8/2011) and the Impact Assessment on proposed European Community Regulations on Matrimonial Property Regimes and the property consequences of registered partnerships available on the Ministry of Justice website at < The UK has decided not to opt into the draft Regulation, according to the statement of the Minister of Justice made in Parliament on 30 June See D. HODSON, Matrimonial Property Regimes, International Family Law 2011, p See also the report held by R. FRIMSTON at the Conference Clearer patrimonial regimes for international couples organised by the Council of the Notaries of the European Union (CNUE), Brussels 17 October 2011, available at < 2011/programme.php>. On the fundamental difference between the civil law and common law approaches, see MÁIRE NÍ SHÚ ILLEABHÁ, Ten Years of European Family Law: Retrospective Reflections from a Common Law Perspective, I.C.L.Q. 2010, p et seq.; M. THORPE, Financial consequences of divorce: England versus the rest of Europe, in K. BOELE-WOELKI/ J. MILES/ J.M. SCHERPE, (eds), The future of family property in Europe, Cambridge/ Antwerp/ Portland 2011, p. 4 et seq. 16 D. MARTINY, Die Kommissionsvorschläge für das internationale Ehegüterrecht sowie für das internationale Güterrecht eingetragener Partnerschaften, IPRax 2011, p Yearbook of Private International Law, Volume 13 (2011) 203