The EU Regulation on Marital Property Law

The EU Regulation on Marital Property Law („Europäische Güterrechtsverordnung“, short „EuGüVO“) came into effect on the 29th of January 2019. Important consequences of this regulation shall be pointed out in the following.

 

The matrimonial property includes all proprietary regulations between the spouses or third parties due to marriage or termination of marriage.

 

Areas of Application

1. Regional application

According to art. 20 of the EU Regulation on Marital Property Law, the regulation is generally applicable.

2. Application in terms of time

Starting from the 29th of January 2019, the applicable law is determined by Chapter III of the regulation as stated in art. 69 par. 3.

3. Application in terms of object

The objective application arises out of art. 1 par. 1 of the regulation. Excluded from the objective application is according to art. 1 par. 2 of the regulation the existence of a marriage, financial supports, inheritance rights and maintenance settlement.

4. Applicable substantive right according to art. 26 of the EU Regulation on Marital Property Law:

The usual residence of the married people determines the applicable right, art. 26 par. 1 lit. a of the regulation.

Secondary, the nationality of both parties can be considered as a scale for the applicable right, art. 26 par. 1 lit. b. If one spouse has several nationalities, the german nationality is not mandatory, art. 5 par. 1 sentence 2 of the Introductory Law to the German Civil Code. If both parties have several nationalities, art. 26 par. 1 lit. b of the regulation is not applicable.

Finally, according to art. 26 par. 1 lit. c of the regualation, the right of the closest connection is considered, meaning planned residences in the future, joint social bondings due to heritage, culture, religion or language or the work situation.

 

Exceptions to art. 26 par. 3 of the EU Regulation on Marital Property Law

If art. 26 lit. a of the regulation is applicable, one of the spouses can ask the Court for the application of the right of their last residence, if it is proven that they had their last common residence there for a longer period of time and if both parties have trusted in the application of the right of this state when making important proprietary decisions.

This plea generally has a retrospective effect, except if one or both spouses are not content with the retrospective effect. In that case, the effect of the new law begins with establishing the new residence.

 

Nevertheless, contrary private agreements have priority and leave this exception clause unaffected.

 

5. Choice of Law, art. 22 of the EU Regulation on Marital Property Law

 

a) Requirements as to the Content

According to art. 22 of the regulation, it is possible to choose the applicable right. The choice of law can not only be made at the time of marriage but also before and after. The law chosen can bet he law of the joint or sole residence at that time, but not the one of a planned residence in future.

 

An agreement made during marriage has an impact from then on. A retroactive effect can also be arranged as long as third parties are not being disadvantaged.

 

aa) Formal requirements

(1) Abstract Formal Requirement

The Choice of law has to be in written form according to art. 23 par. 1 of the EU Regulation on Marital Property Law. According to art. 23 par. 2 of the regulation, spouses with residence in germany are legally bound to notarial authorisation, regulated in § 1410 of the German Civil Code.

 

If both spouses live in different member states, the accordance with the rules of one member state is enough, art. 23 par. 3 of the regulation.

 

(2) Concrete Formal Requirement

The concrete formal requirement regarding the matrimonial property status and and its content has to fulfill the requirements of art. 25 of the EU Regulation on Marital Property Law. The requirements of art. 25 match widely with art. 23 of the same regulation.

 

bb) Substantive Effectiveness

Art. 24 of the EU Regulation on Marital Property Law states that the law, which would be applicable when the choice of law becomes effective, is decisive. For example, if the spouses choose German law, the §§ 116 f., 134, 138 of the German Civil Code come into effect.