New EU Regulation on matrimonial property could have big impact on ‘international couples’

Some time after you settled in the Netherlands, you broke up with your partner and decided to file for divorce. The question now is: is a Dutch court entitled to decide on the apportionment of your matrimonial assets, some of which are located in Germany? The law of which country applies to the division of your matrimonial property? Are you entitled to decide yourself that German law should apply?

A new EU Regulation on matrimonial property regimes for international couples came into effect on 29 January of this year.

Related: Leiden - National Divorce Day

To whom does the new EU Regulation apply?

The new EU Regulation (Council Regulation (EU) 2016/1103 of 24 June 2016) applies to you if:

1. you live in one of the following 18 member states: the Netherlands, Belgium, Bulgaria, Cyprus, Germany, Finland, France, Greece, Italy, Croatia, Luxembourg, Malta, Austria, Portugal, Slovenia, Spain, the Czech Republic or Sweden;
2. you got married on or after 29 January 2019 or if you decided, after 29 January, that your matrimonial property should be subject to the matrimonial property regime of a particular country.

What subjects does the new EU Regulation cover? 

The new Regulation deals with a number of matters affecting the property regimes of international marriages. The most important of these are:

1. the national law applying to the division of matrimonial property
2. a couple’s entitlement to opt for a particular national law.

Applicable matrimonial property regime

It is up to the court to decide which national matrimonial property regime should apply. The court’s decision depends on various factors. The first step is to see whether you and your partner have opted in favour of a specific national law.

Have you opted for a specific national law?

Either before you get married or during the course of your marriage, you are entitled to choose a specific national matrimonial property regime. You must lay down your choice in your prenuptial agreement. 

If you are an expatriate living and working in the Netherlands, it is important to bear in mind that, under the new Regulation, certain additional rules apply if you make your choice either on or after 29 January 2019. As from this date, couples may choose only from the following national laws: 

1. the law of the state in which one of the spouses has his or her habitual place of residence, or of the state in which both spouses have their habitual place of residence;
2. the law of the state of which one of the spouses is a national, or of which both spouses are nationals. 

The date on which the couple signed their prenuptial agreement is critical in both cases. 

In other words, it is not possible to decide that your matrimonial property should be subject to the national law of a country where you and your partner are planning to live in the future if you do not have that country’s nationality. 

Let’s take an example to see how this works. We’ll assume that you and your partner were both German nationals at the time when you got married (and did not possess any other nationality). As long as you and your partner live in Germany, you cannot ask a civil-law notary to pass a deed stating that you want your matrimonial property to be subject to Dutch law. You can only opt for the Dutch matrimonial property regime once you (or both of you) have moved permanently to the Netherlands. In short, there must be some sort of link with the country whose national law you wish to use, either in the form of your nationality or because it is your place of residence.

What if you don’t specify a national law?

If you have not opted for a specific national matrimonial property regime and if you get married on or after 29 January 2019, the terms of the new Regulation will decide on the national matrimonial property regime to which you are subject. 

The first step: what is your common habitual residence?

The first step is to identify your common habitual residence after the date of your marriage. The new Regulation does not say how long a first period of residence needs to last in order to qualify as your first common habitual residence. Although the usual practice at present is to assume that a first period of residence should last at least six months, courts have also accepted shorter periods, for example if the marriage only lasted a short time or if you moved on a number of occasions after getting married. 

The second step: what is your common nationality?

If you do not have a common habitual residence, the next step is to see whether there was a common nationality on the date when you got married. 

The third step: with which country do you have the closest ties?

If you have neither a common habitual residence nor a common nationality, the national law that applies is that law of the country with which you had the closest ties on the date on which you got married. In theory, therefore, no account is taken of a closer tie you may have had with the country in which you lived or are living during your marriage.

Let’s take another example. Which country’s matrimonial property regime applies to the division of your matrimonial property if you and your partner lived in Germany for two years after getting married? In this case, Germany was your first common habitual residence, so that German matrimonial property law applies to the division of your matrimonial property. This situation is not altered by the mere fact that you now live in the Netherlands.

In the old days, you might have been able to change the applicable matrimonial property law to, say, Dutch law after you had spent a period of 10 consecutive years living in the Netherlands or after you had acquired Dutch nationality. However, the new Regulation would now seem to rule this out, as it does not contain a clause providing for an automatic change in the applicable law. I believe that this is a step in the right direction for international couples.

Like to find out more about the new EU Regulation on matrimonial property regimes?

Do feel free to get in touch with me (or one of my colleagues in our family law practice) if you would like more information about the new Regulation or if you have any questions about your own situation.