English

Summary

MEMORANDUM

GENERAL SECTION

BACKGROUND

International marriages are commonplace. In 2009 in 13% of the married couples living in Germany one or both spouses were foreign nationals. In addition, there are German couples living abroad and foreign couples living in Germany. Since the legal consequences of a marriage vary according to, among other things, the spouses’ citizenship, international marriages may lead to legal difficulties, in particular with respect to property issues. The statutory matrimonial property regime in the Federal Republic of Germany is the community of accrued gains. The assets of the spouses remain separate and the gains accrued during the marriage are settled only at the termination of the property regime, e.g. in the case of divorce. The statutory matrimonial property regime in the French Republic is the community of acquisitions, under which all assets acquired during the marriage become common property. Given these divergent matrimonial property regimes, problems may arise. For example, if a couple lives in Germany under the community of property regime in accordance with French law and they acquire a plot of land in the Federal Republic of Germany. Since this French property regime is not generally known in German law, the precise valuation of the scope of each spouse's rights in the registration of a property right in the Land Register, for example, may lead to considerable uncertainties. For a German bank, the consequences of the liabilities of one spouse or his or her insolvency on the assets subject to community of property are particularly uncertain. The prevailing practical solution of choosing a German matrimonial property regime for assets situated in the Federal Republic of Germany in accordance with Article 15(2)(3) of the German Einführungsgesetz zum Bürgerlichen Gesetzbuch ('EGBGB’) solves these problems, but imposes a split matrimonial regime which might bring about other problems in the calculation of the debt on the accrued gains. German couples may encounter similar problems in the French Republic, given the completely different traditions. Marriage law also varies considerably in the other states of the European Union. This situation gives rise to the need to create provisions at an international level which are identical, or as closely comparable as possible, in order to provide the parties involved with legal clarity and certainty.