The Proposal for a Regulation on Matrimonial Property: A Critique of the Proposed Rule on the Immutability of the Applicable Law

Summary

INTRODUCTION

The 2011 Proposal for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (hereinafter, ‘the Proposal’) is designed to fill in a very serious gap in the process of the European unification of private international law rules in the field of family law.

The main aspects of the Proposal have already been analysed in detail by several distinguished scholars. Subject to some qualifications and possible improvements, most of the solutions envisaged are very reasonable and deserve clear and unqualified support. This is true with respect to all the main areas covered by the proposed instrument, i.e. jurisdiction, applicable law, and the recognition and enforcement of decisions and authentic instruments.

In particular, the choice of submitting, to the jurisdiction of the courts of one single country, questions of the dissolution of matrimonial property regimes and the connected issues of succession and divorce (Articles 3 and 4 of the Proposal) is very sensible. With respect to the determination of the applicable law, the adoption of a unitary system (Article 15) and the broad admission of party autonomy (Articles 16 and 18 of the Proposal) are also entirely satisfactory.

However, in our view, the weakness of the proposed system lies in the choice of an immutable connecting factor for the determination of the law which is applicable to the matrimonial property regime. In this contribution we focus on the shortcomings of this solution and on the possible alternatives.

THE IMMUTABILITY SYSTEM FROM A COMPARATIVE LAW PERSPECTIVE

Pursuant to Article 17(1)(a) of the Proposal, the applicable law is – in the absence of a choice of law by the spouses – ‘the law of the State of the spouses’ first common habitual residence after the marriage’.

The reference to the first common habitual residence implies that a change of the common habitual residence of the spouses during the marriage does not entail any change of the law governing the matrimonial property. A ‘conflitmobile’ is excluded through a crystallisation of the applicable law, as determined immediately after the marriage.