Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition (SEC(2006) 952)
Date: 2006-07-17
Institutions: European Commission
Subjects: judicial cooperation in criminal matters in the EU, jurisdiction, matrimonial law, mutual recognition principle

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.07.2006 
COM(2006) 400 final 

GREEN PAPER 

ON CONFLICT OF LAWS IN MATTERS CONCERNING MATRIMONIAL 
PROPERTY REGIMES, INCLUDING THE QUESTION OF JURISDICTION AND 
MUTUAL RECOGNITION 

(presented by the Commission) 

(SEC(2006) 952) 

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1. 

INTRODUCTION 

This Green Paper launches a wide-ranging consultation exercise on the legal questions which 
arise  in  an  international  context  as  regards  matrimonial  property  regimes  and  the  property 
consequences of other forms of union. It presents the various aspects of the matter on which 
there is apparent need for the adoption of Community legislative rules. 

The Commission calls on all interested persons to send in their replies and any other useful 
contributions by no later than 30 November 2006 to the following address: 

European Commission 

Directorate-General Justice, Freedom and Security 

Unit C1 – Civil Justice 
B-1049 Brussels 
Fax: + 32 (0) 2 299 64 57 
E-mail: jls-coop-jud-civil@ec.europa.eu  

Respondents  should state whether  they  object to their replies and observations being placed 
on the Commission's website.  

TERMS USED 

International  jurisdiction:  Aptitude  of  the  courts  in  a  particular  country  to  judge  an 
international dispute. 

Conflict  of  laws:  Situation  in  which  two  or  more  national  laws  may  be  applicable  to 
relationships  (facts,  contracts,  family  relationships,  etc.)  that  are  connected  with  more  than 
one State. The conflict rules determine which country’s domestic law is best placed to govern 
the legal relationship in question. 

Marriage contract: Contract concluded prior to the celebration of the marriage with a view 
to organising property relationships between the spouses. 

Exequatur:  Procedure  allowing  a  court  judgment,  an  arbitration  award,  a  notarial  act  or  a 
legal settlement given or ordered in one State to be enforced on the territory of another State. 

Forum: Court having jurisdiction in, or dealing with, a dispute. 

Matrimonial  property  regime:  Matrimonial  property  rights  of  the  spouses.  Matrimonial 
property  regimes  are  the  sets  of  legal  rules  relating  to  the  spouses'  financial  relationships 
resulting from their marriage, both with each other and with third parties, in particular their 
creditors. 

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Registered partnership: Partnership of two people who live as a couple and have registered 
their union with a public authority established by the law of their Member State of residence. 
For  the  purposes  of  the  Green  Paper,  this  category  will  also  include  relationships  within 
unmarried couples bound by a “registered contract” along the lines of the French “pacs”1 

Non-marital cohabitation (living together): Situation in which two people live together on a 
stable and continuous basis without this relationship being registered with an authority. 

The adoption of a European instrument relating to matrimonial property regimes was among 
the  priorities  identified  in  the  1998  Vienna  Action  Plan2.  The  programme  of  measures  for 
implementation  of  the  principle  of  mutual  recognition  of  decisions  in  civil  and  commercial 
matters,  adopted  by  the  Council  and  the  Commission  at  the  end  of  20003,  provided  for  the 
development  of  an  instrument  on  jurisdiction  and  the  recognition  and  enforcement  of 
decisions  as  regards  matrimonial  property  regimes  and  property  consequences  of  the 
separation of unmarried couples. The Hague programme, which was adopted by the European 
Council  on  4  and  5  November  2004  and  established  the  implementation  of  the  mutual 
recognition  programme  as  a  first  priority,  and  the  Council  and  Commission  Action  Plan 
implementing it4 called on the Commission to submit a Green Paper on “the conflict of laws 
in  matters  concerning  matrimonial  property  regimes,  including  the  question  of  jurisdiction 
and mutual recognition”.5 

To  ensure  that  all  property  aspects  of  family  law  are  examined,  the  Green  Paper  addresses 
issues  touching  both  on  matrimonial  property  regimes  and  on  the  property  consequences  of 
other forms of union. In all the Member States, more and more couples are formed without a 
marriage bond.  To  reflect this new social reality, the Mutual Recognition Programme  states 
that  the  question  of  the  property  consequences  of  the  separation  of  unmarried  couples  must 
also be addressed. The area of justice must meet the citizen’s practical needs. 

A particular consequence of the increased mobility of persons within an area without internal 
frontiers is a significant increase in all forms of unions between nationals of different Member 
States  or  the  presence  of  such  couples  in  a  Member  State  of  which  they  do  not  have  the 
nationality,  often  accompanied  by  the  acquisition  of  property  located  on  the  territory  of 
several  Union  countries.  The  preliminary  study  commissioned  by  the  Commission  in  20026 
revealed that more than 5 million foreign EU nationals lived in another Member State of the 
Union,  while  there  were  around  14  million  non-EU  foreign  residents  in  the  Union  in  2000. 
This study estimates that almost 2.5 million items of real property were owned by spouses and 
located  in  Member  States  different  from  that  of  their  residence.  The  Commission  impact 
study7 relating to its proposal for a Regulation on applicable law and jurisdiction in divorce 

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See Study in comparative law on the rules governing conflicts of jurisdiction and laws on matrimonial 
property regimes and the implemention for property issues of the separation of unmarried couples in the 
Member States, 30 April 2003, ASSER-UCL Consortium commissioned by the Commission, pp. 206 et 
seq., at http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 
OJ C 19, 23.1.1999. 
OJ C 12, 15.1.2001. 
Hague Programme, “Strengthening freedom, security and justice in the European Union”, included in 
the conclusions of the Presidency of the European Council of 4 November 2004. 
Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, 
security and justice in the European Union; (OJ C 198, 18.8.2005, p. 1). 
See footnote 1. 
This impact study will be published at the same time as the Commission adopts this proposal. 

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matters shows that there are approximately 170 000 international divorces in the Union each 
year, i.e. 16% of all divorces. 

Practical  and  legal  difficulties  frequently  occur  at  the  time  of  the  distribution  and/or 
management of these couples’ property. They are often linked to the great disparity between 
rules both of substantive law and of private international law governing the property effects of 
marriage and of other forms of union in the Member States.  

2. 

MATRIMONIAL PROPERTY REGIMES 

Matrimonial property regimes are excluded from Community instruments adopted so far. The 
Hague Convention on the law applicable to matrimonial property regimes of 14 March 1978 
has been ratified only by France, Luxembourg and the Netherlands. 

Since it is currently not possible to harmonise the rules of substantive law, this Green Paper 
will deal with the fundamental issue of the conflict rules. A summary of the rules laid down in 
the Member States’ national laws is annexed to this Green Paper. 

The scope of the conflict rules could potentially cover a broad range of questions (the validity 
of contracts, liquidation and division of the property, etc).  

The  question  of  jurisdiction  will  naturally  be  addressed  in  order  to  guarantee  consistency 
between  the  future  rules  and  those  covering  judicial  proceedings  in  matters  of  divorce  and 
succession. In addition, solutions should be sought which leave room for autonomous choice 
of court by the parties. 

The  property  aspects  of  marriage  are  frequently  settled  on  a  non-contentious  basis.  To 
simplify matters for practitioners and to offer an effective response to the citizen’s practical 
problems, the role and powers of non-judicial authorities and the recognition of extrajudicial 
documents established by them should also be considered.  

Lastly, European legislation should probably also facilitate the citizen’s life by envisaging the 
registration of matrimonial property agreements in the Member States. 

2.1. 

Scope 

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 
responsibility8,  which  came  into  force  on  1  March  2005,  does  not  cover  the  property 
consequences of the dissolution of the marriage. 

Matters already covered by previous legal instruments, such as maintenance responsibilities, 
which are governed by Regulation (EC) No 44/2001 on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters9, in operation since 1 March 2002, 
and by the Commission proposal for a Regulation on jurisdiction, applicable law, recognition 
and  enforcement  of  decisions  and  cooperation  in  matters  relating  to  maintenance 
obligations10, should logically be excluded from the scope of the future instrument.  

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OJ L 338, 23.12.2003, p.1. 
OJ L 12, 16.1.2001, p. 1. 
COM (2005) 649 final, 15.12.2005; 2005/0259 (CNS) 

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It  will  also  be  worth  checking  whether  other  personal  aspects  of  the  marriage  need  to  be 
covered  by  the  future  instrument  in  so  far  as  they  can  have  consequences  for  the  couple’s 
property  (the  right  of  representation  between  spouses,  the  protection  of  the  family  home, 
contribution to the costs of married life, etc.).  

The subject of matrimonial property regimes is generally seen as including both the property 
consequences  of  the  dissolution  of  marriage  and  those  arising  during  its  lifetime.  While  the 
couple are still living together, debts incurred as a result of the common or individual acts of 
the spouses have to be attributed to their common or individual property, in order to divide the 
burden both as between them and in relation to third parties. 

Question 1: 

a)  Should  certain  personal  aspects  of  the  marriage  settlement  not  covered  by  the 
instruments referred to above or only the property consequences of the marriage bond be 
included in the future instrument? If so, which ones and why? 

b)  Should  the  future  instrument  apply  to  the  property  consequences  of  that  bond  arising 
while the parties are still living together or only when they separate or the marriage bond is 
dissolved? 

2.2. 

Conflict of laws 

2.2.1.  Connecting factors and choice of applicable law 

To make matters easier for legal practitioners, the future rules should be of a universal nature, 
enabling either the law of a Member State or the law of a third country to be applicable.  

The  determination  of  the  law  applicable  to  matrimonial  property  regimes  presupposes  the 
identification of one or more connecting factors. 

And it will be necessary to determine whether the selected connecting factor must be the same 
for all aspects of the matrimonial property regimes covered by the applicable law or whether 
different criteria should be used for certain aspects of the situation (“dépeçage”)? An example 
here concerns immovable property, for which the connecting factor sometimes used is the lex 
loci situationis. 

Question 2: 

a) What connecting factors should be used to determine the law applicable to matrimonial 
property  regimes?  And  what  should  be  the  order  of  priority  where  there  are  several  such 
factors  (the  spouse’s  first  habitual  residence  of  the  spouses,  their  nationality,  etc.?  Other 
connecting factors?)  

b) If the future instrument applies to all the property consequences of the marriage bond, 
should the same criteria be envisaged both for the lifetime of the bond and for the time of 
its dissolution?  

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Question 3:  

Should the same connecting factors be used for all aspects of the situation covered by the 
applicable law or could different factors be used for different aspects (“depeçage”)? If so, 
what situations should be taken into account? 

Moreover, thought must given to a solution in cases where connecting factors designated by 
the  conflict  rule  (such  as  residence)  have  changed  or  moved  with  the  passage  of  time.  The 
Hague  Convention  of  14  March  1978,  for  instance,  allows  the  law  applicable  to  the 
matrimonial property regime to change automatically when the spouses change residence or 
nationality (Article 7) if they did not designate themselves the applicable law or conclude a 
marriage  contract.  The  effects  of  the  change  of  law  applicable  to  the  matrimonial  property 
regime may or may not have retroactive effect, depending on the national solution. 

Question 4: 

Should the automatic change of the law applicable to the matrimonial property regime be 
allowed in the event of changes in certain connecting factors, such as the spouses' habitual 
residence? 

If so, can such change have retroactive effect? 

2.2.2.  The autonomy of the parties’ will 

Most of the Member States allow the spouses to choose the law applicable to the matrimonial 
property  regime.  If  one  envisages  allowing  such  a  choice  in  a  future  instrument,  a  limited 
number of connecting factors should obviously be provided for, in particular those involving 
an  actual  link  with  the  spouses  (e.g.  the  law  of  the  State  of  the  habitual  residence  or 
nationality of one or both spouses). The question whether the choice of applicable law should 
be subject to formalities and, if so, what formalities will also have to be considered. 

There is also the question whether or not this agreement between spouses should be subject to 
a limitation in time, being applicable only in the event of the couple separating or while the 
parties are still living together. In that case, care must be taken not to undermine third parties’ 
rights. 

Question 5: 

a)  Should  there  be  the  possibility  for  the  spouses  of  choosing  the  law  applicable  to  their 
matrimonial property regime?  If  so,  what connecting factors can be taken into  account to 
allow this choice? 

b) Should a multiple choice be allowed whereby some assets would be governed by one law 
and others by another law? 

c) Should it be possible to make or change this choice at any time, before and throughout 
the marriage or only at a specific time (at the time of dissolution of the marriage bond)?  

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d) In this case, in the event of a change of applicable law, must the change have retroactive 
efefct? 

Question 6:  

Should the formal requirements for the agreement be harmonised?  

2.3. 

Rules on jurisdiction 

2.3.1. 

Jurisdiction of the judicial authorities 

The  Member  States  have  adopted  a  wide  variety  of  criteria  to  determine  international 
jurisdiction as regards matrimonial property regimes.  

Account will have to be taken of existing Community rules, in particular Regulation (EC) No 
2201/2003 referred to above, which regulates certain effects of the marriage in personal terms. 
Moreover, in view of the interests affected by the future instrument, it would be advisable to 
preserve a degree of consistency between the rules on jurisdiction and the conflict rules, and 
to provide for a choice of court by the spouses. 

Question 7: 

a) In the event of dissolution of the regime by divorce and in the event of separation, should 
the  court  having  jurisdiction  in  these  matters  under  Regulation  No  2201/2003  also  have 
jurisdiction to rule on the liquidation of the matrimonial property? 

b) In the event of succession, should the court having jurisdiction in disputes regarding the 
succession also have jurisdiction to rule on the liquidation of the matrimonial property? 

Question 8: 

a)  If  not,  which  rules  of  international  jurisdiction  should  be  adopted,  in  particular  for 
property questions arising while the couple are still living together (e.g. donations between 
spouses, contracts between spouses)? 

b) Should there be a single general criterion or several alternative criteria as provided for 
by Regulation No 2201/2003 (e.g. habitual residence, common nationality)?  

Question 9: 

a) Is it possible to provide for a single court to rule on all the types of assets, movable and 
immovable, even when they are located on the territory of several Member States? 

b) Where a third party is party to the dispute, should the rules of the ordinary law apply? 

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Question 10: 

Is it possible to provide that the parties may choose the court? If so, how and on the basis of 
what rules? 

Question 11: 

Would it be useful to allow cases to be transferred from a court in one Member State to a 
court in another Member State in this respect? And if so, on what terms?  

2.3.2. 

Jurisdiction of non-judicial authorities 

Given the importance of the functions exercised by non-judicial authorities in this field (such 
as  notaries  and  advocates),  it  might  be  worthwhile  settling  the  question  of  their  powers.  It 
should  also  be  examined  whether  couples  could  carry  out  certain  formalities  with  the 
authorities of their Member State of residence even if an authority of another Member State 
were designated by the principal rule of jurisdiction. 

Question 12: 

Should  there  be  rules  governing  the  jurisdiction  of  non-judicial  authorities?If  so,  should 
grounds of jurisdiction similar to those applicable to judicial authorities be applied? To that 
end, could the broad  definition of the term “jurisdiction” in Article 2 of Regulation (EC) 
No 2201/2003 be taken as a starting point?  

Question 13: 

Should  the  authority  responsible  for  the  liquidation  and  division  of  the  property  also  be 
empowered  to  act  when  part  of  the  property  is  located  outside  the  territory  in  which  it 
exercises its powers? 

Question 14: 

If  not,  should  there  be  a  provision  to  the  effect  that  certain  formalities  can  be  performed 
before the authorities of a Member State other than the one designated by the principal rule 
of conflict of jurisdiction?  

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2.4. 

Rules of recognition and enforcement 

2.4.1.  Recognition and enforcement of judgments 

By  laying  down  uniform  rules  on  the  applicable  law  and  jurisdiction,  the  future  instrument 
will allow a very high degree of mutual trust so that intermediate measures for the recognition 
and enforcement of judgments can be dispensed with.  

Question 15: 

Should the future European instrument abolish the exequatur for judgments given within 
its scope? If not, what grounds for non-recognition of judgments should be provided for? 

Question 16: 

Could there be a provision to the effect that judgments given in a Member State as regards 
the  property  consequences  of  the  marriage  should  automatically  be  recognised  so  as  to 
allow  property  registers  to  be  updated  without  further  procedures  in  the  other  Member 
States? Should Article 21(2) of Regulation (EC) No 2201/2003 be the inspiration for this? 

2.4.2.  Recognition and enforcement of non-judicial acts 

Given the major role played by non-judicial authorities, it would also be advisable to facilitate 
the recognition of acts established by them. 

Question 17:  

Should the same rules as to recognition and enforcement be applied to acts established by 
non-judicial authorities, such as marriage contracts, as to judgments? 

If not, what rules should apply? 

2.5. 

Registration and publicity of matrimonial property regimes 

It would be worth  improving the  publicity of  matrimonial property regimes in the Union in 
order  to  guarantee  legal  certainty  for  all  parties  concerned,  in  particular  creditors.  It  would 
also  be  desirable  to  exempt  spouses  from  the  obligation  to  renew  the  formalities  regarding 
publicity about changes affecting their matrimonial property regimes each time they change 
their residence.  

Question 18:  

How can the registration of matrimonial property regimes in the Union be improved? For 
example, should the adoption of a registration system in all the Member States be provided 
for?  

And how should people interested in using this system be informed of it? 

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3. 

OTHER FORMS OF UNION 

The significant increase in the number of unmarried couples in the Member States is reflected 
in  the  corresponding  increase  in  the  number  of  international  legal  situations  facing  them. 
Community  law  already  addresses  parental  responsibility  for  the  children  of  unmarried 
couples  through  Regulation  (EC)  No  2201/2003  and  maintenance  responsibilities  through 
Regulation (EC) No 44/2001. 

3.1. 

Registered partnerships 

More  and  more  Member  States  provide  for  contracts  and  partnerships  registered  with  an 
official  authority11.  This  question  is  therefore  of  specific  interest  in  these  States  but  also  in 
others that may be confronted with a variety of legal problems in the event of dissolution of a 
registered partnership stemming, for example, from the fact that one of the partners resides or 
has property on their territory.  

3.1.1.  Conflict of laws 

In general, the rules concerning conflict of laws applicable to matrimonial property regimes 
have  not  been  transposed  to  the  other  existing  forms  of  union.  Different  criteria  for  the 
property consequences of registered partnerships could therefore be sought. 

Question 19:  

a)  Should  provision  be  made  for  specific  conflict  rules  for  the  property  consequences  of 
registered partnerships? 

b) Should the law applicable to the property consequences of registered partnerships be the 
law of the place where the partnership was registered? Other laws? 

c) Should the designated law have to govern all matters at issue or should other criteria be 
used, such as the lex loci situationis? 

3.1.2. 

Jurisdiction of the judicial authorities 

Few  Member  States  have  adopted  specific  rules  of  jurisdiction  as  regards  property 
consequences for unmarried couples. Regulation (EC) No 2201/2003 is not applicable to the 
dissolution  of  registered  partnerships,  which  are  not  within  its  scope.  Regulation  (EC)  No 
44/2001, which does not apply to matrimonial property regimes, could be applicable in certain 
cases 
the  property  consequences  of  registered  partnerships  (e.g.  contractual  or 
non-contractual disputes).  

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The authorities of the country of the place where the partnership is registered have jurisdiction 
to  terminate  partnerships  registered  on  their  territory.  For  all  that,  it  could  be  useful  to 
determine  which  authorities  have  jurisdiction  to  rule,  e.g.  at  the  time  of  separation,  on  the 
distribution of the assets of a couple who acquired registered partnership status abroad. 

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Denmark (1989), Sweden (1994), the Netherlands (1998), Belgium, Spain and France (1999), Germany 
(2000), Finland (2001), Portugal and Luxembourg (2004) and the United Kingdom (2005). 

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Question 20:  

Should there be rules of international jurisdiction to regulate the property consequences of 
registered partnerships?  

If so, what rules? Exclusively the court of the place where the partnership was registered 
(having jurisdiction to dissolve it)? Or other criteria, such as the habitual residence of the 
defendant or of one of the partners within the jurisdiction, or the nationality of one or both 
partners? 

3.1.3.  Recognition and enforcement of decisions on registered partnerships 

Some  Member  States  allow  recognition  of  the  dissolution  of  registered  partnerships  in 
accordance with the general rules on recognition or with those applied to the decisions on the 
marriage (e.g. Germany and the Nordic countries).  

Question 21:  

By  what  rules  should  judgments  given  in  a  Member  State  as  regards  the  property 
consequences of a registered partnership be recognised in all the Member States?  

3.2. 

De facto unions 

Most national laws comprise certain rules laid down by statute or in the case law relating to 
couples who are neither married nor in a registered partnership. In theory, in the absence of 
specific rules, the conflict rules applicable to contracts (Rome Convention of 1980 on the law 
applicable to contractual obligations) and to civil liability or, generally speaking, the law of 
the country where damage occurred would be expected to apply. 

3.2.1.  Conflict of laws 

Question 22:  

a)  Should  there  be  specific  conflict  rules  for  property  relationships  based  on  de  facto 
unions (non-formalised cohabitation)? 

If so, what rules?  

c) If not, should there at least be specific rules for the effects of separation of such unions 
in relation to third parties (liability to third parties for the debts of such couples, rights that 
its members can exercise against a third party, e.g. life assurance? 

d)  With  regard  to  immovable  property,  should  the  lex  loci  situationis  be  applied 
exclusively? 

3.2.2. 

Jurisdiction of the judicial authorities, recognition and enforcement of judgments 

The  law  on  these  points  is  not  highly  developed,  and  the  ordinary  rules  of  international 
jurisdiction  generally  tend  to  apply,  which  means  in  particular  that  Regulation  (EC)  No 
44/2001 could regulate certain property disputes between members of such couples. 

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Question 23:  

Should there be specific rules on jurisdiction and the recognition of property relationships 
resulting from de facto unions? 

Even  if  the  answers  to  Questions  22  and  23  are  negative,  clarity  and  legal  certainty  for  the 
citizen  and  the  practitioner  would  nevertheless  be  served  if  the  future  instrument  brought 
together  the  scattered  rules  which  already  apply  to  the  property  consequences  of  the 
separation of such couples (e.g. common assets, housing) in international situations. 

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