COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT   Accompanying document to the   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS  Bringing legal clarity to property rights for international couples   Proposal for a   Council Regulation  on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes   and the   Proposal for a   Council Regulation   on jurisdiction, applicable law and the recognition and enforcement of decisions regarding  the  property consequences of registered partnerships   {COM(2011) 125 final} {COM(2011) 126 final} {COM(2011) 127 final} {SEC(2011) 328 final}
Date: 2011-03-16
Institutions: European Commission
Subjects: civil law, civil register, economic system, enforcement of ruling, family law, heritage protection, judicial cooperation, marriage, matrimonial law

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EUROPEAN COMMISSION 

Brussels, 16.3.2011 
SEC(2011) 327 final 

COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT 

Accompanying document to the 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Bringing legal clarity to property rights for international couples 

Proposal for a  

COUNCIL REGULATION 

on jurisdiction, applicable law and the recognition and enforcement of decisions in 
matters of matrimonial property regimes  

and the 

Proposal for a  

COUNCIL REGULATION  

on jurisdiction, applicable law and the recognition and enforcement of decisions 
regarding  the  property consequences of registered partnerships 

{COM(2011) 125 final} 
{COM(2011) 126 final} 
{COM(2011) 127 final} 
{SEC(2011) 328 final} 

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Disclaimer:  This  report  commits  only  the  Commission's  services  involved  in  its 
preparation  and  does  not  prejudge  the  final  form  of  any  decision  to  be  taken  by  the 
Commission.  

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TABLE OF CONTENTS 

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT 
Accompanying document to the Proposal for a Regulation on jurisdiction, applicable law 
and the recognition and enforcement of decisions in matters of matrimonial property 
regimes  and the Proposal for a Regulation on jurisdiction, applicable law and the 
recognition and enforcement of decisions regarding  the property consequences of 
registered partnerships................................................................................................................ 1 

1. 

2. 

2.1. 

2.2. 

3. 

INTRODUCTION........................................................................................................ 8 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES... 9 

Political mandate .......................................................................................................... 9 

Organisation and timing ............................................................................................... 9 

PROBLEM DEFINITION FOR MARRIED COUPLES .......................................... 11 

3.1. 

The basic problem and its causes ............................................................................... 11 

3.2.  Who is affected?......................................................................................................... 12 

3.3. 

The Scope of the problem .......................................................................................... 12 

4. 

PROBLEM DEFINITION FOR UNMARRIED COUPLES..................................... 13 

4.1. 

The basic problem and its causes ............................................................................... 13 

4.2.  Who is affected?......................................................................................................... 14 

4.3. 

The scope of the problem ........................................................................................... 14 

5. 

5.1. 

A. 

B. 

C. 

IDENTIFIED PROBLEMS........................................................................................ 15 

Problem 1 - Problems relating to the determination of which court and body is 
competent to handle the case...................................................................................... 15 

It is difficult for couples to predict which courts will handle litigation on 
matrimonial property.................................................................................................. 15 

Competence of different non-judicial authorities to handle cases concerning 
matrimonial property regimes. ................................................................................... 15 

Difficulties because of the relationship between jurisdiction on matrimonial 
matters and other rules ............................................................................................... 15 

5.2. 

Problem 2 - Problems relating to the applicable law.................................................. 16 

A. 

B. 

Conflicting laws are applicable to property regimes.................................................. 16 

Unexpected and unintended consequences related to a change in the connecting 
factor concerning matrimonial property regimes ....................................................... 17 

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C. 

D. 

5.3. 

5.4. 

6. 

6.1. 

6.2. 

6.3. 

A. 

B. 

7. 

8. 

9. 

9.1. 

9.2. 

9.3. 

9.4. 

9.5. 

9.6. 

9.7. 

10. 

Differences in the ability to choose the applicable law and, when a choice is 
possible, between what laws a choice is allowed in cases with transnational 
elements...................................................................................................................... 17 

Difficulties because of relationships between applicable laws on property regimes 
and other rules. ........................................................................................................... 18 

Problem 3 - Lack of automatic recognition and enforcement of judgments in 
property regimes......................................................................................................... 18 

Problem 4 – Inadequate information for third parties on the existence of property 
regimes ....................................................................................................................... 19 

NEED FOR ACTION AT EU LEVEL FOR MARRIED COUPLES AND 
REGISTERED PARTNERSHIPS ............................................................................. 20 

Baseline scenario - how would the situation evolve, all things being equal? ............ 20 

Legal framework in place........................................................................................... 21 

Does the EU have the power to act?........................................................................... 21 

Treaty base ................................................................................................................. 21 

Necessity test (Subsidiarity)....................................................................................... 22 

OBJECTIVES AND DESCRIPTION OF POLICY OPTIONS ................................ 23 

DISCARDED POLICY OPTIONS............................................................................ 24 

RETAINED POLICY OPTIONS............................................................................... 26 

Policy Option 1:.......................................................................................................... 26 

Policy Option 2:.......................................................................................................... 26 

Policy Option 3:.......................................................................................................... 26 

Policy Option 4:.......................................................................................................... 27 

Policy Option 5:.......................................................................................................... 28 

Policy Option 6:.......................................................................................................... 28 

Policy Option 7:.......................................................................................................... 29 

ANALYSIS OF THE IMPACTS OF POLICY OPTIONS........................................ 29 

10.1. 

Policy Option 1: Status quo........................................................................................ 29 

10.2. 

Policy Option 2: Targeted provision of information to raise citizens’ awareness 
that the property regime may not be the same in other Member States and that 
they can register their regime ..................................................................................... 30 

10.3. 

Policy option 3: Harmonisation of jurisdiction rules and introduction of rules on 
automatic recognition and enforcement of judgments, decisions and deeds. ............ 31 

10.4. 

Policy option 4: Harmonisation of conflict of law rules. ........................................... 32 

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10.5. 

Policy Option 5: Uniform optional European proforma for a marriage contract ....... 33 

10.6. 

10.7. 

10.8. 

10.9. 

Policy Option 6: Harmonisation of conflict of law rules and jurisdiction rules, and 
introduction of rules on automatic recognition and enforcement of judgments......... 34 

Policy Option 7(a): Creation of a webpage on existing registers of property 
regimes and national rules.......................................................................................... 34 

Policy Option 7(b): Creation of a database/knowledge management system on 
existing registers of matrimonial property regimes and national rules. ..................... 35 

Policy option 7(c): Commission Recommendation on the establishment of 
interconnected national registers of property regimes and the organisation of 
information campaigns. .............................................................................................. 35 

10.10.  Policy option 7(d): Compulsory establishment of interconnected national registers 

of property regimes. ................................................................................................... 36 

11. 

12. 

COMPARISON OF THE POLICY OPTIONS.......................................................... 36 

PREFERRED POLICY OPTION .............................................................................. 40 

12.1. 

The preferred option’s achievement of the policy objectives .................................... 40 

12.2. 

Economic impacts ...................................................................................................... 42 

12.2.1.  Impact on the legal professions .................................................................................. 42 

12.2.2.  Impact on different social groups and impact on existing inequalities ...................... 43 

12.2.3.  Impact on taxation ...................................................................................................... 43 

12.3. 

Sensitive elements, potential draw – backs and risks................................................. 43 

12.4. 

Fundamental rights, proportionality and EU added value.......................................... 44 

12.4.1.  Fundamental rights ..................................................................................................... 44 

12.4.2.  Proportionality............................................................................................................ 44 

12.4.3.  European added value ................................................................................................ 44 

13. 

MONITORING AND EVALUATION...................................................................... 45 

ANNEX I – Glossary................................................................................................................ 46 

ANNEX II – Information on applicable law and competent jurisdiction in Member States ... 48 

1.MARRIED COUPLES .......................................................................................................... 48 

2. REGISTERED PARTNERSHIPS........................................................................................ 55 

ANNEX III – Note on Costs / Benefits of policy options ........................................................ 57 

1. 

Note on Costs / Benefits of policy options................................................................. 57 

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2. 

3. 

4. 

5. 

6. 

Table 1– The estimated costs of problems for married couples................................. 59 

Table 2 – The estimated costs of problems affecting registered partnerships............ 60 

Table 3: Policy Option 6: - Detailed assessment of costs savings compared to the 
current situation.......................................................................................................... 62 

Table 4 – Policy options concerning legislative differences between the Member 
States: for married couples and B.1 couples in registered partnerships:.................... 63 

Table 5 – Policy options concerning registers for matrimonial property regimes 
(married couples) and Patrimonial property regimes (couples in registered 
partnerships). .............................................................................................................. 64 

ANNEX IV – Data on marriages: International marriages in EU............................................ 66 

1. 

2. 

3. 

4. 

Number of marriages in the EU Member States (2007)............................................. 66 

Proportion of international marriages in the EU (2000 to 2007; 12 countries).......... 67 

Numbers of different types of international marriages in EU in 2007....................... 68 

Number of national and international marriages in the EU (2000 to 2007; 20 
countries) .................................................................................................................... 68 

ANNEX V – Data on divorces: divorces in EU in 2007 .......................................................... 70 

1. 

2. 

3. 

4. 

Divorces in the EU Member States (2007) ................................................................ 70 

Proportion of national and international divorces in the EU (2000 to 2007; 15 
countries). ................................................................................................................... 71 

International divorces in 2007.................................................................................... 71 

Number of divorces and international divorces in the EU (2000 to 2007; 16 
countries) .................................................................................................................... 72 

ANNEX VI – Data on registered partnerships ......................................................................... 73 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Magnitude of international registered partnerships and international property 
regimes of registered partnerships.............................................................................. 73 

Number of new civil / registered partnerships by year (trends) ................................. 74 

Number of new PACS (French registered partnerships) in France............................ 74 

The stock of registered partnership in Finland (2002-2008):..................................... 75 

Number of new registered partnerships in Finland (2002-2008): .............................. 75 

Number of dissolutions of national and international registered partnerships, and 
the reasons for these ................................................................................................... 75 

Separations of registered partnerships in Finland (2001-2008) ................................. 76 

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8. 

Separations of international registered partnerships by country group in Finland 
(2004-2008) ................................................................................................................ 76 

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1. 

INTRODUCTION 

For the European Union it is of essential importance to ensure that citizens can move freely 
between all Member States, that they can live there, create a family and acquire property 
without  any  inconvenience  or  uncertainty.  Freedom  of  movement  and  of  residence  are 
fundamental  freedoms  under  European  Union  law  (Article  45  of  the  Charter  of 
Fundamental  Rights  of  the  European  Union;  hereinafter:  the  Charter),  and  any  obstacles 
and hindrances should be tackled. It is also essential to ensure access to justice and respect 
of  fundamental  rights,  in  particular  the  right  to  property  (Article  17),  equality  before  the 
law (Article 20) and the principle of non-discrimination (Article 21). 

More and more citizens in Europe move across national borders to study, to work, to live. 
This leads to an increased number of international couples or couples with an international 
dimension:  spouses  of  different  nationalities,  couples  living  in  a  Member  State  of  which 
they are not nationals, buying or owning assets in different Member States and sometimes 
they divorce or die in a country other than the one of their origin. The basic problem is that 
it is very difficult for people to know which courts have jurisdiction, and which laws are 
applicable, to their personal situation and the situation of their property. As a result, they 
face unintended, and disadvantageous, consequences not only in the daily management of 
their assets, but also when the couple separates, or when a member of the couple dies. 

In 2007 in EU, 13% of all marriages celebrated in EU were international1 (307,158), and in 
the  same  year  approximately  500,000  international  marriages  were  dissolved  through 
divorce or death. 

It is estimated that over 460 millions euro is at stake each year when international married 
couples separate, through divorce or death (see Annex III). As the future initiatives of the 
Commission would concern both married and unmarried couples, other forms of union are 
analysed later in this report. 

Such  initiatives  should  not  only  concern  European  couples  living  in  Europe,  but  also 
couples where one or both parties are third–country nationals living on the territory of the 
EU, or European couples living in a third country. However, it has to be mentioned that in 
accordance  with  the  Protocol  on  the  position  of  Denmark  annexed  to  the  Treaties, 
Denmark is not concerned by the future initiatives of the Union. 

The study undertaken for those initiatives show that international couples, or couples who 
own  property  in  other  Member  States  than  the  one  of  their  origin,  face  many  problems 
related to rules which apply to the couples' assets2.  

The causes of existing problems are complex and the national laws on property matter vary 
greatly between the different Member States – some are based on the principle of separate 
property  of  the  spouses'  assets  (e.g.  Austria),  whilst  others  are  based  on  the  principle  of 
community of property (e.g. France, Italy, Spain). However, even between the community 
property regimes there are significant differences as to the property included. Moreover, in 

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For a definition of international couples and marriages, see annex I 
For married couples, the notion of "Matrimonial property regimes" is used, which means the rules 
which  apply  to  the  spouses'  assets  and  which  define  the  financial  relations  between  spouses  and 
between the spouses and third parties (in particular creditors) – see annex I 

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case  there  are  several  countries  involved  (e.g  international  couples  acquiring  property  in 
another Member State), several courts might have jurisdiction, and this could lead to a risk 
of conflicting law and judicial decisions. In this context, parties could have difficulties in 
enforcing  a  decision  rendered  in  a  State  in  the  one  in  which,  for  example,  a  property  is 
located. All these differences make it difficult for EU citizens to dispose of their properties, 
and  could  make  things  more  complicated  than  expected,  additional  costs,  lengthening  of 
proceedings. 

Europeans  expect  a  clear  set  of  the  rules  to  know  which  court  is  competent  to  deal  with 
their case and which law should be applicable in the daily management of their assets and 
at the moment of the partition of their assets (because of death, divorce, separation). This is 
a  cross–border  problem  which  affects  a  large  and  growing  proportion  of  citizens  in  the 
European Union. Those actions concern international private law, and not substantive laws. 
Member  States  and  stakeholders  have  therefore  urged  actions  at  European  Union  level. 
This impact assessment considers options for taking such actions. 

2. 

PROCEDURAL  ISSUES  AND  CONSULTATION  OF  INTERESTED 
PARTIES 

2.1. 

Political mandate  

The Stockholm programme aims for a Europe of citizens were everybody can benefit from 
the  common  area  of  justice,  freedom  and  security,  and  called  for  the  principle  of  mutual 
recognition to "be extended to fields that are not yet covered but essential to everyday life, 
e.g. <…> matrimonial property rights and the property consequences of the separation of 
couples". 

Much progress has already been made towards the creation of a genuine European Area of 
Civil Justice, with common rules setting out which courts have jurisdiction in cross border 
civil  and  family  law  cases3.  In  addition,  European  Union  Regulations  provide  which  law 
should apply to cross-border cases4. However, the question of what happens when a couple 
separates  in  a  cross-border  situation  is  still  governed  entirely  by  national  law,  and  a 
multitude of different regimes apply in the various Member States. This is usually referred 
to as "matrimonial property regimes"5 and is a field where many Europeans face problems. 

2.2. 

Organisation and timing 

To  support  the  preparation  of  this  impact  assessment,  the  Commission  commissioned  an 
external study6, which was finished in March 2010. To guide the drawing up of this study, 
an inter-services steering group was set up with the departments most concerned, and two 
meetings took place, in October and December 2009. 

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4 

5 

6 

Regulation  (EC)  N°44/2001  OJ  L  12,  16//01/2001,  Regulation  (EC)  N°2201/2003  OJ  L  338, 
23/12/2003 
Regulation  (EC)  N°593/2008,  OJ  L  177,  04/07/2008,  Regulation  (EC)  N°  864/2007,  OJ  L  199 
31/07/2007  
For  the  purpose  of  this  report,  "matrimonial  property  regimes"  will  be  used  only  for  married 
couples, and "patrimonial aspects of unions…" will be used for unmarried couples. 
By  EPEC,  Impact  assessment  study  on  Community  instruments  concerning  matrimonial  property 
regimes and property of unmarried couples with translational elements. 

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In  2003  the  ASSER-UCL  Consortium  was  commissioned  for  a  study  on  matrimonial 
property  regimes  and  the  property  of  unmarried  couples  in  private  international  law  and 
internal  law.  National  reports  were  prepared  for  each  of  the  EU15  Member  States  and  it 
has 
is  available  at: 
the  outline  of  current  problems.  This  study 
http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc/regimes/report_regimes_030
703_fr.pdf 

informed 

Since  the  study  confirmed  the  existence  of  practical  problems,  in  2006  the  European 
Commission adopted a Green Paper on conflict of laws in matters concerning matrimonial 
property  regimes7,  including  the  question  of  jurisdiction  and  mutual  recognition. 
Approximately 40 responses were received from Ministries, regional and local authorities, 
NGOs,  legal  professions  and  community  institutions.  Responses  were  received  from 
stakeholders in a total of fifteen Member States. 

Following a call for proposals, on 19 May 2008 the Commission set up an expert group to 
assist it in its work on a future legislative proposal on matrimonial property regimes, called 
PRM-III,  which  is  composed  of  experts  acting  independently  of  the  Member  States, 
including  several  observer  bodies8.  This  Expert  Group  has  examined  the  whole  range  of 
issues at stake, such as conflict of laws, jurisdiction rules, recognition and enforcement of 
decisions,  registration  and  publicity  of  matrimonial  property  regimes,  civil  partnerships 
and a optional European regime. Five meetings were arranged by the Commission in the 
period 2008 to 2010. 

A public hearing was organised on 28 September 2009: 99 participants, from the Member 
States  (governments  and  Courts),  member  of  the  expert  group  as  well  as  academics, 
lawyers,  notaries  and  member  of  civil  society  attended  to  discuss  the  usefulness  of  a 
European  instrument  on  matrimonial  property  regimes  and  the  consequences  in  terms  of 
property rights of the separation of unmarried couples. 

In addition, in the framework of the study done for the Commission in 2009 and 2010, the 
contractor  contacted  every  Member  State  and  organization  of  legal  professionals,  Bar 
associations, and Citizens Advice Bureau to collect information on the legal situation in the 
27 EU Member States, to identify problems faced by citizens and to assess and compare 
policy  options.  National  registers  of  property  regimes,  national  Statistics  Offices  and  tax 
Authorities were also consulted for this study. 

Moreover,  the  European  Commission  organised  on  23  March  2010  an  informal  meeting 
with representatives of Member States, for which were in particular presented the progress 
of the preparation of this report, the main lines, and to obtain their comments. 

This impact assessment report was presented to the Impact Assessment Board on 2nd June 
2010. This report was completed with additional information, to be in accordance with the 
recommendation of the Impact Assessment Board. 

De facto unions 

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COM(2006)400, 
http://eur-
lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=fr&type_doc=COMfi
nal&an_doc=2006&nu_doc=400 
CNUE  (conseil  des  notariats  de  l'Union  européenne),  CCBE  (conseil  des  barreaux  européens), 
Hague conférence, Council of Europe, CRE (Colegio de Registradores de Espana). 

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Only  eight  Member  States  have  specific  rules  for  de  facto  unions  (for  a  definition  of  de 
facto unions, see on Annex I), and practically no conflict of law rules have been codified in 
the Member States so far for de facto unions. It was impossible to collect precise data and 
figures on the number of de facto unions in the 27 EU member States.  

Legal professionals questioned about current problems for de facto unions referred to the 
absence of substantive law rules, but not to the lack of jurisdiction rules and conflict of law 
rules (the area where the EU has competence to act).  

Citizens who live together without being married or in a registered partnership may have 
made an active choice not to have their property relations governed by a substantive law; 
in most countries, if those citizens wish to have their property relationships governed by a 
substantive law, they could choose to get married or register a partnership. 

The vast majority of experts consider that an EU instrument will not provide appropriate 
answers to the problems faced by de facto unions. It is considered that EU level action on 
de facto unions is premature and cannot be justified at present. In the future, if substantive 
law is introduced across the EU, it may be relevant for the Commission to revisit this issue. 

3. 

PROBLEM DEFINITION FOR MARRIED COUPLES 

3.1. 

The basic problem and its causes  

The starting point for the assessment of current problems is the legal differences between 
Member  States  in  relation  to  property  regimes  for  married  couples.  Although  European 
Union  rules  exist  on  jurisdiction  and  applicable  law  in  civil  and  commercial  law,  and  in 
some areas of family law, no such laws currently exist in the field of matrimonial property 
regimes,  or  in  the  field  of  property  rights  of  unmarried  couples.  The  subject  is  therefore 
governed by national law and bilateral agreements between countries.  

The  concept  of  matrimonial  property  regime  is  used  in  all  the  Member  States,  with  the 
exception  of  common  law  countries.  Most  of  the  continental  European  jurisdictions  use 
this  concept,  and  distinguish  between  a  legal  matrimonial  property  regime  (set  of  rules 
which apply in case  of  lack  of  choice of spouses) and optional regimes based on  pre- or 
post-  nuptial  agreements  (‘marriage  contracts’, in  which  spouses  can,  to  a  certain  extent, 
choose  rules  which  will  apply  to  their  marriages).  According  to  which  matrimonial 
property law applies, rules will be different, and assets will be considered as common or 
individual  property.  Indeed,  in  most  countries  the  legal  matrimonial  property  regime  is 
based on the principle of "community property" (all or part of the movable and immovable 
property  held  or  acquired  by  one  spouse  is  transformed  into  common  property  of  both 
spouses), with some differences between countries (the entire property of both spouses is 
held  in  common,  or  only  acquisitions  of  spouses  after  the  marriage…).  On  the  opposite 
side,  the  system  of  separate  property  exists,  which  has  traditionally  been  the  basis  of 
marriages in the Common law countries. Most community property regimes are restricted 
to property acquired after the marriage, but some of them include the whole property of the 
spouses  (e.g.  the  Netherlands).  Furthermore,  the  common  law  countries  do  not  know 
matrimonial property at all. The same diversity of rules exists in private international law: 

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some  Member  States  apply  the  law  of  the  common  nationality  of  the  spouses9,  others 
prefer the domicile10 or the common residence of the spouses11. Moreover, whilst most of 
the  Member  States  apply  one  and  the  same  law  to  questions  of  matrimonial  property, 
irrespective  of  the  location  of  such  property,  others  prefer  a  system  of  splitting  the 
applicable law and applying the lex rei sitae on movable property belonging to the spouses. 

The  preparatory  work  gave  a  particular  attention  to  take  into  consideration  the 
characteristics of national laws of each Member State12, in particular of the common law 
States (in which the concept of matrimonial property regime does not exist in itself).  

3.2.  Who is affected? 

Those  affected  are  "International  couples",  who  may  be  defined  as  those  who  live  in  a 
Member State other than the one of which they are nationals, where the spouses come from 
different  Member  States,  or  who  have  assets  in  a  number  of  Member  States13.  When  the 
couple is split, whether through divorce, separation or death, couples face great problems 
resolving how their assets should be dealt with – which courts are competent (questions of 
jurisdiction),  which  law  is  applicable?  If  the  couple,  or  one  of  them,  have  debts,  then 
creditors need to know against whom they can proceed, which property they can seize, and 
this will depend upon the type of patrimonial property regime applicable to the couple. 

3.3. 

The Scope of the problem 

In 2007 there were 2, 400, 000 new  marriages (see Annex  IV)  in the  European Union of 
which  approximately  310 000  (13%)  were  international.  In  the  same  year  there  were 
1, 047, 427  divorces  (see  Annex  V),  of  which  also  13%  (137 000)  had  an  international 
element (number and proportion of new international divorces steady increase since 2000). 
It is estimated that the number of married couples abroad getting divorced was 28 000 and 
married couples with assets abroad 8 000. Moreover, in the same year approx. 2.4 million 
marriages were dissolved through death, of which approximately 390 000 were estimated 
to  be  international.  Furthermore,  around  87 000  dissolution  of  matrimonial  property 
regimes  of  married  couples  living  abroad  occurred  in  2007  through  death  and  25 000 
liquidations  of  property  regimes  of  married  couples  with  assets  abroad.  Hence,  the  total 
number of dissolutions of matrimonial property regimes having an international dimension 
because  of  death  in  2007  was  around  500 000.  All  in  all,  in  2007  more  than  637  000 
international  marriages  split  through  divorce  or  death,  and  in  all  these  cases  matrimonial 
property had to be divided up. These numbers do not include dissolutions of matrimonial 
property regimes for other reasons, such as separation and changes of matrimonial property 
regimes. 

For  those  entering  marriage  the  problem  may  be  one  of  lack  of  awareness  that 
complications might arise in the future and it is estimated (see Annex III) that the costs that 
could arise for these couples would be in the order of 318 million euro. 

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13 

For example, Art. 14 I, 15 I German EGBGB; §§ 18, 19 I Austrian IPRG; Art. 14 Nr. 1, 15 Greek 
ZGB; Art. 17 § 1 Polish IPRG; Art. 9 II, III Spanish Código civil. 
For example, United Kingdom, Ireland. 
For example, Art. 51 Nr. 1 Belgian IPRG; Art. 13 I Latvian ZGB. 
a  table  collecting  pieces  of  information  on  the  differences  on  choice  of  law  and  choices  of 
jurisdiction in national legislation of EU Member States is provided in Annex II. 
A more complete definition of "international married couples", including non-EU nationals living in 
the EU, is provided in annex I 

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For those already married the problem may be due to one spouse (aware or not of their lack 
of  rights)  wishing  to  dispose  of  property  without  the  consent  of  their  partner.  Such 
circumstances will cause a problem for the third party potential purchaser and an estimated 
notional cost would be in the order of 160 million euro. 

For those international marriages divorcing the estimated cost that could be addressed by 
the policy options is 205 million euro. 

The  problems  arising  when  international  marriages  are  dissolved  through  the  death  of  a 
partner are similar to those arising through divorce; the estimated notional cost that could 
be addressed by the policy options is 257 million euro.  

In total the order of magnitude of the costs to international married couples of the problems 
that could arise while liquidating the matrimonial property is estimated to be 1.15 billion 
euro per annum (see Annex IV). 

In addition, property may also have been acquired by married couples living in a Member 
State other than their country of origin. The estimated value of the problem per annum that 
may result from these matters is 135 million euro per annum (see Annex III).  

Additionally,  married  couples  (international  and  not)  could  acquire,  for  leisure  or 
investment  purposes,  a  property  in  a  Member  State  other  than  their  country  of  habitual 
residence,  and  it  may  lead  to  the  problems  with  the  total  costs  of  72  million  euro  (see 
Annex  III)  for  marriages  with  property  (either  communal  or  separate)  held  in  different 
Member States.  

4. 

PROBLEM DEFINITION FOR UNMARRIED COUPLES  

4.1. 

The basic problem and its causes 

The  causes  of  current  problems  for  registered  partnerships  are  basically  the  same  as  for 
married couples in terms of differences between jurisdiction rules, conflict of law rules etc. 
in  the  Member  States.  However,  there  are  some  important  additional  challenges  because 
the concept of registered partnerships in itself exists only in 14 Member States: Austria, the 
Netherlands,  France,  Hungary,  United  Kingdom,  Czech  Republic,  Denmark,  Slovenia, 
Finland,  Germany,  Belgium,  Luxembourg  and  Ireland  (in  Sweden,  it  was  possible  to 
register partnerships from 1994 until same-sex marriages were allowed in 2009), and not 
all  Member  States  have  substantive  laws  on  this  matter,  and  even  fewer  have  adopted 
jurisdiction rules and conflict of law rules. As a consequence, the issue of the recognition 
of  the  concept  of  registered  partnership  would  need  to  be  tackled,  while  the  notion  of 
marriage exists in all Member States. 

Furthermore,  it  is  not  possible  to  simply  adopt  the  jurisdiction  and  applicable  law  rules 
developed for matrimonial property regimes: a future regulation on patrimonial aspects of 
registered  partnerships  could  not  determine  the  court  which  has  jurisdiction  if  it  is  in  a 
State that does not recognise registered partnership, or to determine that the applicable law 
if the law of a country that does not recognise registered partnership. Besides, contrary to 
matrimonial  property  regimes,  decisions  on  the  dissolution  on  registered  partnerships 
cannot be recognised under Regulation N°2201/2003: consequently, it cannot be planned 
that the court which has jurisdiction to deal with the "divorce" of a registered partnership 

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under that Regulation has its jurisdiction extended to patrimonial aspects of the dissolution 
of this partnership. 

4.2.  Who is affected? 

Those  affected  are  "International  couples",  who  may  be  defined  as  those  who  live  in  a 
Member  State  other  than  the  one  of  which  they  are  nationals,  where  the  partners  come 
from different Member States, or who have assets in a number of Member States14. When 
the  couple  is  split,  whether  through  separation  or  death,  couples  face  great  problems 
resolving how their assets should be dealt with – which courts are competent (questions of 
jurisdiction),  which  law  is  applicable?  If  the  couple,  or  one  of  them,  have  debts,  then 
creditors need to know against whom they can proceed, which property they can seize, and 
this will depend upon the patrimonial aspects of the registered partnership applicable to the 
couple. 

4.3. 

The scope of the problem 

In 2007 there were approximately 211,000 new registered partnerships in the EU, of which 
over  41,000  had  an  ‘international  dimension’  with  regard  to  their  matrimonial  property 
(total  of  international  registered  partnerships,  registered  partnerships  living  abroad  or 
having  property  abroad).  It  is  difficult  to  compare  the  number  of  registered  partnerships, 
because  it  is  a  more  recent  concept  than  marriage.  However,  these  numbers  are 
significantly  increasing.  Of  these  8500  (4%)  end  in  separation  and  1,266  (0.6%)  end  in 
death per annum (see Annex VI). 

Indeed, it has to be pointed out that the concept of registered partnership is a recent one, 
appeared  in  1989,  which  already  exists  in  13  Member  States.  Statistics  show  that  the 
number of registered partnerships increases regularly, and the number of liquidations of 
patrimonial  property  (including  those  having  an  international  dimension)  due  to  the 
separation of partners, or of the death of the one of them, should increase in the same way. 

The  average  value  of  property  regimes  with  a  transnational  element  is  indicated  to  be 
noticeably higher than for purely national property regimes. Besides,  all the practitioners 
indicated  that  the  proportion  of  property  regimes  of  registered  partnerships  with  cross-
border elements is steadily increasing. 

The  magnitude  of  the  costs  to  international  couples  in  registered  partnerships  relating  to 
the  problems  that  could  be  addressed  by  the  policy  options  is  estimated  to  be  17  million 
euro per annum could not be compared with sums for international marriages, but it could 
be  estimated  at  several  millions  of  euro  each  year.  Moreover,  this  figure  is  expected  to 
increase with the increasing number of registered partnerships and the number of Member 
States which provide internal rules on registered partnerships. 

14 

A more complete definition of "international married couples", including non-EU nationals living in 
the EU, is provided in annex I 

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5. 

IDENTIFIED PROBLEMS 

5.1. 

A. 

Problem 1 - Problems relating to the determination of which court and body 
is competent to handle the case 

It  is  difficult  for  couples  to  predict  which  courts  will  handle  litigation  on 
matrimonial property. 

Due to different national rules at the time of the dissolution of patrimonial assets it is often 
not  clear  which  Member  State  is  competent  to  handle  the  case.  It  might  happen  that  the 
case can be brought to court in different Member States and consequently one couple can 
have two parallel court proceedings and two decisions, which might conflict. The costs of 
several proceedings must also be taken into account. 

This  is  further  complicated  by  the  fact  that  some  countries'  national  laws  cover  both 
movable and immovable property, whereas others have a split system where movable and 
immovable property is covered in the country where it is physically situated. 

If  one  member  of  the  couple  is  aware  of  this  they  might  rush  to  the  court  in  a  Member 
State  where  more  favourable  law  for  him/her  would  be  applied.  This  rush  to  court,  or 
"forum shopping", significantly decreases legal certainty for the other spouse or partner, as 
indicated in the example below: 

Citizens  rush  to  court  as  they  know  that  they  will  have  more  advantages  if  the 
liquidation is done in one Member State rather than another. This is particularly the 
case between France and the United Kingdom as the latter is known to generally be 
more favourable to the most vulnerable party (normally the wife) whereas the former 
is normally more favourable to husbands. 

B. 

Competence  of  different  non-judicial  authorities  to  handle  cases  concerning 
matrimonial property regimes. 

In  different  Member  States  non-judicial  authorities  are  competent  to  handle  matrimonial 
property  regimes.  In  21  of  the  27  EU  Member  States  exists  the  body  of  notaries:  public 
officers  who  establish  and  certify  acts  and  contracts.  They  are  not  always  competent  to 
liquidate  matrimonial  property  regimes  in  other  countries  and  citizens  often  have  to  deal 
with  liquidation  including  immovable  property  in  different  Member  States.  In  this 
situation,  problems  arise  including  having  additional  costs  and  time  delays  and  citizens 
having to rely on different non-judicial authorities in different Member States. 

C. 

Difficulties  because  of  the  relationship  between  jurisdiction  on  matrimonial 
matters and other rules  

When  different  courts  are  competent  for  divorce,  succession  and  matrimonial  property 
liquidation, citizens face different proceedings in different jurisdictions, which may apply 
different  national  laws.  These  proceedings  may  lead  to  different,  and  sometimes 
conflicting, results. The costs of having different proceedings in different Member States 
are high. 

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5.2. 

Problem 2 - Problems relating to the applicable law  

A. 

Conflicting laws are applicable to property regimes. 

If  proceedings  are  started  in  several  countries  at  the  same  time,  the  outcome  will  be 
uncertain because of the differences between Member States’ property regimes, especially 
because  some  Member  States  have  a  system  of  common  property  while  others  consider 
property  to  be  separate.  Connecting  factors  are  factors  in  national  laws,  or  international 
conventions, to determine which law should be applied (as an example, habitual residence 
of the spouse/partner, common nationality…). At the moment each Member State uses its 
own conflict of law rules, under which different connecting factors (common nationality or 
domicile/habitual  residence  of  the  spouses/partners,  physical  location  of  immovable 
property etc.) determine which law should be applicable to the dissolution of the property 
regime. This may result in negative consequence for the spouses/partners: 

Example: the movable property of a German couple living permanently in England is 
governed  by  German  law  according  to  German  conflict  of  law  rules  (common 
nationality), whereas it is governed by English law under English conflict of law rules 
(domicile). As a consequence, conflicting judgments of German and English courts on 
the liquidation of the matrimonial regime are possible, and may lead to problems with 
regard to the recognition of these judgments. 

Even if the same connecting factor is used in the Member States concerned the respective 
conflict of law rules refer to different moments in time: 

Example: A Hungarian husband and his Greek wife married in Greece and lived there 
for  three  years  after  the  marriage,  then  moved  to  Hungary  where  the  marriage  failed 
after  a  further  two  years.  In  this  case  the  liquidation  of  the  matrimonial  regime  was 
governed  by  Greek  substantive  law  under  the  Greek  conflict  of  law  rule  (common 
habitual  residence  of  the  spouses  at  the  time  of  marriage),  whereas  it  is  governed  by 
Hungarian substantive law under the Hungarian conflict of law rule (common habitual 
residence of the spouses at the time of divorce). 

For  registered  partners,  legal  uncertainty  is  extremely  high  because  most  of  the  Member 
States have not even developed any codified conflict of law rules. 

Example:  If  a  same  sex  couple  living  in  France  involved  a  French  national  or  the 
couple  was  habitually  resident  in  France,  they  could  register  a  French  PACS  (civil 
partnership)  and  upon  death  the  survivor  was  exempt  from  French  succession  duty. 
Similarly,  a  French  PACS  is  recognised  in  England  as  a  Civil  Partnership  and  the 
surviving partner is exempt from UK inheritance tax. However, if same-sex couple (both 
UK  citizens),  who  concluded  a  civil  partnership  in  the  UK,  moved  to  France,  their 
partnership was not recognised for tax purposes and upon death the survivor had to pay 
60%  tax  on  the  French  assets,  with  the  result  that  he  had  to  sell  his  home.  France 
modified its law in 2009 to solve this issue. 

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B. 

Unexpected  and  unintended  consequences  related  to  a  change  in  the 
connecting factor concerning matrimonial property regimes  

In  some  countries  the  law  applicable  to  the  matrimonial  property  regime  changes 
automatically following actions by the spouses (for example, moving to another country) 
without them being notified. This may lead to unexpected and unintended consequences as 
a  law  other  than  the  one  expected  may  be  applied,  in  which  the  provisions  may  be  very 
different to the expectations of the spouses: 

Example: an English couple living in France for ten years, without making any choice of 
law,  automatically  becomes  subject  to  the  legal  regime  in  France.  The  couple  was  not 
aware  of  the  automatic  change  of  the  applicable  law.  The  consequences  of  this 
modification are considerable as there are many differences in the substantive laws of the 
two countries. 

Example: in France the principle of mutability applies. At present, there is a problem of 
legal  uncertainty  for  international  couples  or  couples  moving  abroad.  The  couples  are 
usually unaware that a change in their habitual residence will affect the law applicable to 
their property regime. Unmarried couples are also sometimes unaware that some Member 
States do not recognise their form of union and that when moving abroad their partnership 
may  not  be  recognised  under  the  law  of  their  new  country,  leading  to  significant 
complications. 

Legal uncertainty arising from the mutability principle is therefore higher for unmarried 
couples than for married couples.  

C. 

Differences in the ability to choose the applicable law and, when a choice is 
possible,  between  what  laws  a  choice  is  allowed  in  cases  with  transnational 
elements 

As mentioned above, members of a couple can decide to choose which rules will apply to 
their  property  regimes  by  agreement  ("marriage  contracts",  for  married  couples).  When 
spouses/partners are aware of the differences of conflict of law rules governing property in 
the  Member  States  in  which  their  properties  are  situated  and  they  are  also  aware  of  the 
resulting problems, they may wish to get around this by drawing up a marital contract and 
choosing  a  single  law  applicable  to  all  their  assets  irrespective  of  the  countries  in  which 
movable or immovable properties are situated. Choice of law seems to be possible in most, 
but not all Member States. Furthermore, the limits set up by the Member States are very 
different. Therefore, the choice of law made by the spouses/partners may be recognised in 
one Member State, but not in another Member State where property is located, leading to 
the choice not being respected.  

Example: English law is unclear as to whether it is possible to choose different laws for 
different  assets.  The  choice  of  French  law  for  French  real  estate  is  valid  in  France; 
however, there is no case law or any other indication / guidance as to whether it is valid 
in England and Wales as well. 

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D. 

Difficulties  because  of  relationships  between  applicable  laws  on  property 
regimes and other rules. 

It  might  be  problematic  when  both  the  applicable  law  on  property  regimes  and  the 
applicable law on succession provide rules to secure cover the surviving spouse/partner, or 
when both of the laws assume that the surviving spouse/partner will be properly under the 
other regime, thus potentially leaving the spouse/partner without any share in the estate of 
the deceased, contrary to the desire/will of the deceased. 

Example: one member of a Swedish couple owned an apartment in Portugal. According to 
Swedish succession law the ownership should have been transferred to the widow but there 
was  a  risk  that  the  Portuguese  authorities  would  not  accept  the  ruling  so  the  ownership 
was never transferred. 

In case of a split system in which the applicable law for immovable property (lex rei sitae) 
might  be  different  from  the  law  for  movable  property  (domicile  or  nationality  of  the 
spouses/partners)  additional  problems  result  since  both  laws  might  have  to  be  taken  into 
consideration to reach an equitable solution.  

5.3. 

Problem 3 - Lack of automatic recognition and enforcement of judgments in 
property regimes  

The recognition and enforcement of judgments on property matters is regulated either by 
bilateral  Conventions/Treaties  between  certain  Member  States  or  by  the  national 
procedural law of the Member States. Whereas foreign judgments on property regimes are 
automatically  recognised  in  some  Member  States  (Austria,  Czech  Republic,  Greece, 
Germany, Hungary, Italy, Sweden), recognition is granted in special proceedings by court 
(‘exequatur’)  in  other  Member  States  (Belgium,  France,  Lithuania,  Luxembourg  and  the 
Netherlands). 

The  lack  of  automatic  recognition  and  the  variety  of  different  documents  required  in 
different Member States causes problems for international couples – time delays and incurs 
higher expenses than for cases where this is not necessary: 

Example:  A  Spanish  citizen  married  a  man  with  a  double  nationality:  Dutch  and 
German.  The  couple  married  in  Düsseldorf  (Germany)  in  1965.  Their  matrimonial 
property was (automatically) governed by a community regime; both spouses were aware 
of  this.  For  cultural  and  practical  purposes,  the  Spanish  wife  changed  her  nationality, 
after  marriage,  from  Spanish  to  Dutch  and  the  couple  moved  to  the  Netherlands.  They 
owned property both in Germany and in Spain.  

At the time of the divorce, both parties had their habitual residence in the Netherlands and 
were  of  Dutch  nationality,  and  therefore  the  proceedings  took  place  in  the  Netherlands. 
During  the  divorce  proceedings,  the  parties  agreed  that  the  husband  would  keep  the 
property in the Germany whilst the wife would keep the property in Spain, an agreement 
that  was  formalised  by  a  letter  written  and  signed  by  the  husband  confirming  that  he 
passed on the ownership rights of the Spanish property to his ex-wife. However, before the 
conclusion  of  the  divorce  the  wife  had  to  move  back  to  Spain  for  health  reasons  and 
established  her  habitual  residence  there.  This  had  unintended  consequences  when  she 
decided, a year after the divorce, to name their children as the legal owners of the property 
in Spain. As she started the procedures for the transfer of property rights, she discovered 

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that  she  needed  her  husband’s  consent  to  do  so  because  she  was  married  under  the 
community of property regime and the letter drafted by her ex-husband (which would have 
been sufficient to transfer property under Dutch law) was not recognised in Spain. As she 
was now under Spanish law, to confirm that she was the owner of the property she needed 
either  a  notarial  act  or  the  permission  of  her  ex-husband  to  give  the  property  to  their 
children. 

The case is coming to an end after twenty years of legal proceedings and fees after her ex-
husband agreed to sign before a notary a document transferring property ownership rights 
to the children. 

On the recognition of judgments concerning property aspects of registered partnerships, in 
some Member States (in particular, Latvia and Slovakia) judgements concerning property 
of unmarried couples are not recognised and therefore not enforced. On the other hand, few 
Member  States  (in  particular,  Austria,  Czech  Republic,  Malta,  Poland,  Lithuania  and 
Romania)  affirmed  that  the  general  rules  on  recognition  and  enforcement  for  registered 
partnerships are the same as those described for married couples.  

5.4. 

Problem  4  –  Inadequate  information  for  third  parties  on  the  existence  of 
property regimes  

At present only 3 Member States have a central register of marriage contracts, 12 Member 
States have decentralised registers and 4 countries do not have registers. Consequently, it 
may be difficult or impossible to access information on existing property regimes abroad, 
which  in  turn  brings  about  other  negative  effects  for  citizens  (costs,  time  delays  etc.). 
Problems experienced by third parties wishing to buy property or land from a couple will 
persist.  It  is  difficult  for  third  parties  to  know  whether  the  spouse  or  partner  selling  the 
property  is  autonomous  i.e.  if  there  is  separation  of  property  one  can  sell  the  property 
without the consent of the other. 

When a spouse enters into a contract with a third party, or borrows money from a bank, it 
is important for the third party or for the creditor to know what's going on if this spouse 
become insolvent: they need to be aware on the existence, or not, of a marriage contract; 
and to know which law would apply on property assets of the couple. If common property 
exists, creditors have recourse against that and the private capital of both spouses. On the 
other hand, if the spouses or partners have chosen a separate property regime, each spouse 
is only liable for the debts which he or she has contracted, while his or her creditor only 
has  recourse  against  his  or  her  own  capital.  So  there  are  more  citizens  then  only  the 
spouses  and  partners,  who  are  interested  in  gathering  information  about  existing 
matrimonial property regimes as well as the matrimonial property regime of the couple in 
question (common or separate property). 

Example:  as  no  national  register  of  marriage  contracts  and  matrimonial  regimes  is 
currently in place in France, third parties have to go through a long procedure in order to 
access this information. Third parties can access information on the matrimonial property 
regime  chosen  by  the  spouses  by  checking  the  birth  certificate  of  one  the  spouses 
(subsequent a special authorisation). 

Furthermore, extracts of birth certificates cannot be accessed by everyone. According to a 
decree,  only  the  person  concerned,  his/her  spouse,  parents  children,  legal  representative 
or a person with a special authorisation can access this information. A prosecutor can also 

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ask to access this personal information in the frame of a proceeding.  

Example: according to a French lawyer, at present it is not possible to access information 
about  the  regime  applicable  to  the  property  of  a  registered  partnership  as  no  national 
register has been established in France. The Convention (PACS contract) drafted between 
the partners is kept by the partners themselves or by a notary (in case the convention as 
been  drafted  before  the  latter  –  however  this  constitutes  only  a  minority  of  the  cases). 
Creditors  and  other  third  parties  therefore  cannot  know  the  financial  arrangements 
between the members of the couple. 

6. 

NEED  FOR  ACTION  AT  EU  LEVEL  FOR  MARRIED  COUPLES  AND 
REGISTERED PARTNERSHIPS 

6.1. 

Baseline scenario - how would the situation evolve, all things being equal? 

European  citizens  face  problems  related  to  property  regimes  at  several  circumstances: 
when couples get married, for one or both spouses and for third parties when one spouse 
dispose an asset where it is communal, when married couples divorce and when one of the 
spouses  die.  Considering  that  marriages,  partnerships,  divorces  and  separation  will 
continue,  the  problems  which  are  indicated  now  will  not  disappear  as  citizens  will  keep 
facing  them  not  only  in  these  important  time  of  their  life,  but  also  in  their  daily 
management of assets. 

As already mentioned under point 3.3, the total costs that could arise while liquidating the 
matrimonial property are estimated to be 1.15 billion euro per annum. Although there is a 
slight  decrease  in  the  number  of  international  marriages  and  fairly  stable  trend  in 
international divorces, the indicated costs are likely to remain the same. The costs affecting 
the dissolution of registered partnership are estimated to be more then 17 millions. Those 
costs  correspond  to  the  absence  of  Europe  in  matrimonial  property  regimes  and  for 
property  effects  of  registered  partnership.  The  costs  are  link  e.g.  to  the  matrimonial/ 
patrimonial property regime differences and most of these costs accrue as fees to lawyers.  

The scale of the problems related to registered partnerships is small compared with those 
related to marriages with international elements. However unlike the latter, the scale of the 
problem related to registered partnership is likely to increase in the future. This is because 
of the growing number of registered partnerships and particularly international registered 
partnership on one hand, and the increasing number of property acquisitions by EU citizens 
in other EU Member States on the other. Besides, it should be considered that, since 1989, 
12  Member  States  (plus  Sweden)  have  adopted  specific  rules  on  registered  partnerships. 
Furthermore, at national level Lithuania, Estonia and Ireland are examining the possibility 
to  introduce  legislation  allowing  registered  partnerships.  The  number  of  registered 
partnerships is increasing, and consequently difficulties linked with their dissolution due to 
separation or death will increase in the future. 

Not  taking  any  new  action  at  EU  level  does  not  necessarily  mean  there  will  be  no 
improvement  in  the  situation.  Assuming  that  the  Commission's  proposal  on  successions 
and  wills  which  is  currently  being  negotiated  will  be  adopted,  this  should  improve  the 
situation when couples are split by the death of one member of the couple, by providing 
greater legal certainty. 

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Considering  the  problems  citizens  face,  if no  action  is  taken  at  the  European  Union 
level, the legal uncertainty will remain for the future and international couples as well 
as married couples owning property in different Member States will have to face the 
above mentioned problems. 

6.2. 

Legal framework in place 

Matters concerning the right of property arising out of matrimonial property regimes and 
property  of  registered  partnerships  are  excluded  from  the  scope  of  the  existing  European 
Union instruments on mutual recognition and enforcement.  

Spouses (regardless of their nationality) of EU nationals have the right to move anywhere 
in the European Union with their spouse under Council Directive 2004/38/EC15. However, 
the rights of registered partners are more limited, and if they are not EU citizens they only 
have  rights  as  family  members  if  the  host  Member  State  treats  registered  partnerships  as 
marriage. 

There are currently vast differences between Member States’ international conflict rules on 
matrimonial  regimes,  with  very  little  international  cooperation.  Only  few  member  States 
provide  specific  rules  on  conflict  of  law  for  registered  partnerships  in  their  national 
legislation. 

In this field two main international multilateral instruments exist: the Hague Convention of 
17  July  1905  relating  to  conflicts  of  laws  with  regard  to  the  effects  of  marriage  on  the 
rights  and  duties  of  the  spouses  in  their  personal  relationship  and  with  regard  to  their 
estates, and the Hague Convention of 14 March 1978 on the law applicable to matrimonial 
property regimes. However, these Conventions, which concern only married couples, have 
only been ratified by 3 Member States. 

An  ICCS  (International  Commission  on  Civil  Status)  Convention  of  2007  on  the 
recognition  of  registered  partnerships  should  also  be  mentioned,  and  a  number  of 
multilateral and bilateral agreements exist, but they do not resolve all the problems. 

These Conventions are examined bellow in the part on discarded options. 

6.3. 

Does the EU have the power to act? 

A. 

Treaty base  

Article  81  of  the  Treaty  on  the  Functioning  of  the  European  Union  is  the  legal  base  for 
judicial cooperation in civil matters following the entry into force of the Lisbon Treaty. It 
provides that the European Parliament and the Council shall adopt measures, particularly 
when necessary for the proper functioning of the internal market, aimed at ensuring [inter 
alia]: 

15 

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right 
of citizens of the Union and their family members to move and reside freely within the territory of 
the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 
68/360/EEC,  72/194/EEC,  73/148/EEC,  75/34/EEC,  75/35/EEC,  90/364/EEC,  90/365/EEC  and 
93/96/EEC, OJ L 158, 30.4.2004, p. 77–123 

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•  the  mutual  recognition  and  enforcement  between  Member  States  of  judgments  and  of 

decisions in extrajudicial cases  

•  the  compatibility  of  the  rules  applicable  in  the  Member  States  concerning  conflict  of 

laws and of jurisdiction 

•  effective access to justice  

•  the elimination of obstacles to the proper functioning of civil proceedings, if necessary 
by promoting the compatibility of the rules on civil procedure applicable in the Member 
States 

Article 81(3) of the TFEU makes it clear that when such measures concern family law, the 
Council shall act unanimously after consulting the European Parliament. 

B. 

Necessity test (Subsidiarity)  

The problems identified above show clearly that we are dealing with transnational or cross-
border situations which by their very nature cannot be properly dealt with at the level of 
the  individual  Member  States.  EU  level  action  in  the  closely  related  fields  of  divorce, 
parental  responsibility  and  civil  and  commercial  litigation  have  made  a  clear  and 
significant  contribution  to  helping  citizens  solve  cross  border  legal  problems  related  to 
their  day  to  day  lives.  The  Commission's  proposal  on  wills  and  successions  is  a  further 
example  of  the  added  value  of  action  at  EU  level  in  terms  of  solving  problems  due  to 
incompatibilities  of  the  Member  States'  legal  systems.  Actions  on  property  regimes  for 
married couples and registered partners would help solve a large number of problems for 
citizens but would not interfere in purely domestic scenarios, thus going no further than is 
necessary. 

It  has  to  be  kept  in  mind  that  the  future  Union  Instruments  would  not  involve 
harmonisation  of  the  substantive  laws  on  property  relations  between  spouses  or  between 
citizens who have registered a partnership, which is outside the scope of the Commission’s 
competences.  

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7. 

OBJECTIVES AND DESCRIPTION OF POLICY OPTIONS 

The  overall  objective  of  the  Proposals  is  to  contribute  to  the  creation  of  a  genuine 
European area of civil justice in the field of matrimonial property regime and in the field of 
patrimonial aspects of registered partnerships.  

The general and specific objectives are summarised in the following table: 

General and specific objectives 

General objectives 

Specific objectives 

To  remove  the  remaining 
citizens 
restrictions  on 
exercising  their  rights  in 
the  European  judicial  area 
through  the  extension  of 
to 
mutual 
property 
matrimonial 
the  property 
rights  and 
the 
consequences 
separation of couples. 

recognition 

of 

To prevent the occurrence of parallel proceedings and of the 
application of different substantive laws to the property of a 
married or unmarried couple. 

To ensure spouses and partners are able to choose, as far as is 
appropriate, the rules and legal provisions applicable to their 
situation. 

To  facilitate  the  recognition  and  enforcement  of  judgements 
and other decisions relating to international property regimes 
of married and unmarried couples. 

To make it possible for parties of a couple to bring all legal 
matters  relating  to  their  case  (as  a  result  of  separation  or 
death  which  brings  about  the  liquidation  of  the  matrimonial 
regime) before the same court. 

To  ensure  that  spouses  and  partners  know,  where  they  have 
not chosen an applicable law, which law will be applicable in 
the event of liquidation of the property regime. 

To ensure compatibility with other proposed EU rules (e.g. in 
relation  to  successions  and  wills  and,  for  married  couples, 
applicable law in divorce proceedings). 

To  increase  access  to  information  on  matrimonial  and 
property regimes. 

The Study carried out by the contractor  (EPEC  Consortium)  proposed  10  policy  options, 
and  analysed  separately  married  couples,  registered  partnership,  and  problems  on  the 
information on property regimes of spouses and partners. For the purpose of this report, the 
most relevant 7 policy options have been indentified and analysed. 

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Policy options that address problems caused by national legislative differences concerning 
property  regimes  for  married  couples  and  registered  partnerships  with  transnational 
elements: 

Policy Option 1: Status quo 

Policy  Option  2:  Provision  of  targeted  information  provision  to  raise  citizens’  awareness 
that patrimonial property regimes may not be the same in other Member States 

Policy Option 3: Harmonisation of jurisdiction rules and introduction of rules on automatic 
recognition and enforcement of judgments 

Policy Option 4: Harmonisation of conflict of law rules 

Policy Option 5: Uniform optional European proforma for marriage contracts 

Policy  Option  6:  Harmonisation  of  conflict  of  law  rules  and  jurisdiction  rules,  and 
introduction of rules on automatic recognition and enforcement of judgments  

Policy  Option  7:  Provision  of  information  for  third  parties  on  the  existence  of  property 
regimes of married couples and couples in registered partnerships  

8. 

DISCARDED POLICY OPTIONS  

It  was  not  possible  or  relevant  to  assess  in  detail  all  theoretical  policy  options,  or  all 
different  combinations  of  elements  (e.g.  different  connecting  factors,  choice  of  law  etc). 
Certain policy options have therefore been discarded after an initial evaluation, as follows: 

-  Harmonisation  of  jurisdiction  rules:  Simply  harmonizing  jurisdiction  rules  without  a 
parallel harmonization of the rules on recognition and enforcement of judgments does not 
make  sense,  because  harmonization  of  jurisdiction  rules  is  only  a  means  to  facilitate  the 
mutual  recognition  and  enforcement  of  judgments  between  the  Member  States.  On  the 
basis  of  harmonized  jurisdiction  rules  there  is  no  need  for  control  of  jurisdiction  by  the 
courts  in  the  State  where  recognition  and/or  enforcement  is  sought.  For  this  reason,  all 
existing EU regulations on international civil procedure law (Brussels I, Brussels II a) as 
well  as  Regulation  (EC)  No.  4/2009  of  18  December  2008  on  maintenance  matters16 
combine both aspects. 

- Introduction of rules on automatic recognition and enforcement of judgments and other 
decisions:  automatic  recognition  and  enforcement  of  judgments  of  other  Member  States 
requires harmonization of jurisdiction rules. Both aspects are so closely connected that an 
EU instrument on matters of matrimonial property regimes necessarily has to combine both 
elements  (as  explained  above  relating  to  the  option  on  "harmonization  of  jurisdiction 
rules"). 

16 

Council  Regulation  (EC)  No  4/2009  of  18 December  2008  on  jurisdiction,  applicable  law, 
recognition  and  enforcement  of  decisions  and  cooperation  in  matters  relating  to  maintenance 
obligations: 
http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:007:0001:0079:EN:PDF  

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-Mutual recognition of the choice of law made by spouses/partners: not the Member States 
allow  the  choice  of  applicable  law  in  this  field.  Introducing  the  principle  of  freedom  of 
choice  results  to  establish  already  a  common  rule.  However,  when  no  choice  is  made, 
common  rules  are  still  needed,  to  ensure  a  complete  and  coherent  system.  If  only  the 
choice of the applicable law is introduced without any harmonisation of the relevant rules 
in  the  absence  of  such  choice,  national  rules  will  continue  to  apply  in  this  area,  and 
therefore legal security and coherence will not be ensured. For the Member States which 
know  the  possibility  of  choice,  there  must  be  common  rules  to  determine  common 
connecting factors. Otherwise, the strongest part could impose the choice of the law which 
is the most advantageous on the detriment the weaker part. 

- Ratification by the EU and its Member States of the Hague Convention of 17 July 1905 
relating to conflicts of laws with regard to the effects of marriage on the rights and duties 
of  the  spouses  in  their  personal  relationship  and  with  regard  to  their  estates:  this 
Convention17  (which  concerns  only  married  couples)  establishes  rules  with  regard  to  the 
effects (personal and financial) of marriage. In practice, the Convention has principally lost 
its  significance;  because  only  a  small  number  of  countries  are  bound  by  it  (it  applies  in 
Italy, Portugal and Romania). Furthermore, because its rules include the choice of law of 
the  nationality  of  the  husband,  this  international  Convention  is  in  conflict  with  the 
fundamental principle of equality of the spouses making it impractical to apply in full18.  

- Ratification by the EU and its Member States of the Hague Convention of 14 March 1978 
on  the  Law  Applicable  to  Matrimonial  Property  Regimes  (which  concerns  only  married 
couples):  this  Convention  is  restricted  to  the  determination  of  the  law  applicable  to 
matrimonial property regimes. The Convention does not cover the questions of jurisdiction 
and of recognition/enforcement of judgments. The conflict of law rules of the Convention 
are based on a (limited) choice of the applicable law, but if the spouses have not chosen the 
law  applicable,  their  matrimonial  property  regime  is  governed  by  the  internal  law  of  the 
State in which they both establish their first habitual residence. However, this Convention 
provides  a  rule  of  automatic  change  of  applicable  law,  without  the  spouses  necessarily 
being aware of it. Consequently, the result of liquidation of matrimonial property regime 
might  be  unpredictable  and  surprising,  providing  very  little  legal  security.  This  might  be 
the  reason  that  in  more  than  30  years  only  three  States  (the  Netherlands,  Luxemburg, 
France) have ratified the Convention. 

-  A  particular  option  which  was  analysed  with  respect  to  registered  partnerships  is 
accession  of  the  EU  and  Member  States  to  the  ICCS  Convention  on  the  recognition  of 
registered partnerships, opened for signature on 5 September 2007, but this only provides 
rules  on  recognition  of  the  notion  of  partnership  (which  would  be  helpful  for  the 
preliminary question of the recognition in itself of the registered partnership), but does not 
include rules on jurisdiction, applicable law, recognition and enforcement. Moreover, this 
Convention  has  not  been  ratified  by  any  Member  State.  Consequently,  the  ratification  of 
the ICCS convention by all Member States could not solve problems met by couples in a 
registered partnership, although it might be a helpful first step. 

17 
18 

EN 

http://hcch.e-vision.nl/index_en.php?act=text.display&tid=17  

EJN  refers  to  Portugal,  where,  as  a  consequence,  the  law  which  normally  governs  the  effects  of 
marriage  is  the  one  designated  under  conflict  of  laws  rules  in  the  Portuguese  Civil  Code. 
http://ec.europa.eu/civiljustice/applicable_law/applicable_law_por_en.htm  

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to 

the  non-legislative  options,  alternatives  considered 

-  With  regard 
include: 
benchmarking,  training  of  legal  professionals,  codes  of  conduct,  the  adoption  of  a 
Communication  or  an  action  programme  and  the  exchange  of  good  practice.  However, 
none of these alternatives seem to generate many benefits for the achievement of the policy 
objectives on their own. Therefore, they have been discarded as such, but may be borne in 
mind later on as flanking measures for legislative options. 

9. 

RETAINED POLICY OPTIONS 

9.1. 

Policy Option 1:  

Status quo: under this option there would be no new common EU (legislative) action in 
the  area  of  property  regimes,  although  the  present  situation  would  follow  its  natural 
development at national, EU and international level.  

9.2. 

Policy Option 2:  

Targeted  information  provision  to  raise  citizens’  awareness  that  rules  on  property 
regime may not be the same in other Member States: information would be distributed 
to  citizens  who  are  about  to  get  married  or  enter  into  a  registered  partnership  that  the 
property  regime  may  change  in  case  of  a  move  or  acquisition  of  property  abroad.  For 
example, short information leaflets could be prepared and distributed at the time citizens 
register  to  get  married  (or  to  enter  into  a  partnership)  ,  or  when  they  undertake 
administrative  steps  in  relation  to  a  move  to  another  Member  State.  The  leaflets  would 
contain some limited generic information concerning that the fact that their property may 
be subject to different rights and constraints. The leaflet would need to be translated to all 
EU languages. The text would be common for all EU countries. 

9.3. 

Policy Option 3:  

Harmonisation  of  jurisdiction  rules  and  introduction  of  rules  on  automatic 
recognition  and  enforcement  of  judgments.  This  option  would  imply  EU  legislation 
establishing  harmonised  jurisdiction  rules  and  rules  on  automatic  recognition  and 
enforcement  of  judgments  and  other  decisions.  Although  it  is  a  "heavier"  instrument,  a 
Regulation would be more appropriate than a Directive because only a Regulation would 
apply  identically  in  all  the  Member  States,  which  is  essential  if  there  is  to  be  a 
harmonisation of rules. 

Harmonisation of jurisdiction rules 

Special rules on jurisdiction with regard to the dissolution of the matrimonial regime. The 
dissolution of the property regime often coincides with the dissolution of the marriage or 
partnership due to divorce /separation or death. The special rule would imply an extension 
of  the  jurisdiction  of  the  court  dealing  with  this  divorce  (according  to  Regulation 
N°2201/2003) or with the succession (according to the proposed Regulation on succession 
and wills) to have also jurisdiction with regard to the dissolution of the property regime. 

General rule on jurisdiction: In other cases, jurisdiction would be determined on the basis 
of  a  hierarchy  of  connecting  factors.  The  following  criteria  (in  line  with  those  criteria 
already existing in the other Regulations in this field) should be considered: the spouses’ or 

EN 

26 

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partners' common habitual residence; the last habitual residence of the spouses or partners 
if one of them still resides there; the habitual residence of the respondent. 

Rules  on  residual  jurisdiction  and  on  lis  pendens  would  be  introduced  (on  the  basis  of 
those already existing in the other Regulations in this field). 

Rules  on  automatic  recognition  and  enforcement  of  judgments,  other  decisions  and 
authentic acts/deeds 

Rules  concerning  the  automatic  recognition  and  enforcement  of  judgments  and  other 
decisions  would  be  introduced.  The  general  rule  would  be  automatic  recognition  of 
judgments  and  other  decisions  given  in  one  Member  State  in  matters  of  matrimonial 
property regimes in all other Member States. This means that no review as to the substance 
of a decision would be made, and no special procedure of recognition is required. 

Common  grounds for refusing to recognise  foreign judgments and other decisions would 
be introduced, on the basis of those already existing in other Regulations still existing (ex: 
judgment manifestly contrary to the public policy). 

9.4. 

Policy Option 4:  

Harmonisation of conflict of law rules  

Under this option, there would be EU legislative action in terms of adoption of harmonised 
conflict-of-law  rules  on  property  regimes.  As  explained  above,  the  only  appropriate 
instrument would be a Regulation. 

A  (limited)  choice  of  law  would  be  introduced,  but  restricted  to  laws  which  are 
sufficiently connected with the property regime of the spouses or partners. This choice of 
law  could  be  limited  to  the  following  laws:  (i)  Law  of  the  habitual  residence  of  either 
spouse  or  partner;  (ii)  Law  of  the  nationality  of  either  spouse  or  partner.  It  should  be 
possible to make a choice of law at any time during their marriage or partnership and they 
should  also  be  free  to  change  a  choice  of  law  made  at  an  earlier  stage.  It  has  to  be 
considered that the extent of the choice of law could not be the same for married couples 
and couples in a registered partnership. Indeed, partners could not choose as applicable law 
to their partnership the law of a State that does not provide rules on registered partnerships 
in its national legislation. 

If no choice of law was made, a system based on a hierarchy of connecting factors would 
be  applicable:  (i)  Common  or  first  habitual  residence  of  the  spouses  or  partners;  (ii) 
Common  nationality  of  the  spouses  or  partners;  (iii)  Other  close  connection  of  the 
matrimonial regime to the law of a State. The definition of habitual residence would follow 
that of the ECJ ("permanent and usual centre of interests of a person chosen by the person 
with the intention to live there permanently"). For the same reason as mentioned above, the 
list of connecting factors that applied in case of lack of choice of law could not be the same 
for registered partnerships. 

A  unitary  system  would  be  established,  i.e.  all  property,  both  movable  and  immovable 
property, wherever it is situated would be subject to a single law.  

Principle of immutability. The conflict of law rule in property matters should be based on 
the principle of immutability of the property regime. This means that the legal framework 

EN 

27 

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of  the  property  regime  of  the  spouses  will  remain  unchanged  during  the  marriage  or 
partnership. In particular there will be no automatic change of the property regime on the 
ground that a relevant connecting factor has changed. 

Renvoi  (system  by  which  the  applicable  law  provides  that  in  fact  another  national  law 
should apply to the case) is not accepted, and rules would be universally applicable (i.e. 
the conflict of law rules would apply also in relation to third countries). 

The  scope  of  the  rules:  positive  definition  of  the  concept  supplemented  by  a  list  of 
matters that are expressly excluded. In order to have a common definition, because the 
scope  of  matrimonial  property  law  is  defined  very  differently  in  the  national  laws  of  the 
Member  States,  and  the  concept  of  matrimonial  property  law  in  the  sense  of  continental 
law is not even known to the common law countries, it would be defined in a positive way. 

9.5. 

Policy Option 5: 

Uniform optional European proforma for marriage contracts  

The main features of this model are as follows: 

– 

– 

The form of the agreement is an instrument drawn up by a notary in accordance 
with his/her local law. 

The  agreement  contains  the  following  typical  clauses:  (i)  on  the  choice  of  the 
property  regime  (of  a  certain  national  law),  (ii)  on  the  choice  of  the  applicable 
law, (iii) on the information clauses for third parties about the general rules of the 
property  regime  chosen  by  the  spouses  or  partners  (who  is  the  owner  of  which 
property,  what  are  the  responsibilities  of  the  spouses  or  partners  for  debts 
incurred, and the effects of regime chosen for and against third parties).  

A proposal for a uniform optional European proforma for marriage contracts was drafted 
by  notaries  from  different  European  countries19.  This  draft  regime,  of  which  some  parts 
would need to be adapted to the specifics of the national situation, includes an outline of 
provisions as well as guidance for notaries/other legal professionals that would assist with 
the drawing up of the regime. 

This proposal is not a European matrimonial regime in the sense there no harmonisation of 
substantive matrimonial property law, but only the introduction of a optional model form 
for ante- and postnuptial agreements ("marriage contracts"). 

9.6. 

Policy Option 6:  

Harmonisation  of  conflict  of  law  rules  and  jurisdiction  rules,  and  introduction  of 
rules on automatic recognition and enforcement of judgments 

This option, which would imply EU legislative action in the form of a Regulation, would 
combine  options  4  (on  harmonisation  of  conflict  of  law  rules  on  international  property 
regimes) and 3 (jurisdiction rules and rules on automatic recognition and enforcement of 
judgments). 

19 

The  experts  were  from  the  following  countries:  Germany,  England  and  Wales,  Austria,  Spain, 
France, Greece, Italy, the Netherlands, Poland, Romania and Switzerland.  

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28 

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9.7. 

Policy Option 7:  

Provision  of  information  on  property  regimes  of  married  couples  and  registered 
partnerships 

This option could be achieved in a number of different ways: 

•  Creation of a  webpage  of  existing registers of matrimonial property regimes,  property 

regime aspects of registered partnerships and national rules 

•  Creation  of  a  database/knowledge  management  system  on  existing  registers  of 
matrimonial  property  regimes,  property  regime  aspects  of  registered  partnerships  and 
national rules 

•  Commission  Recommendation  on  (i)  the  establishment  of  national  registers  of 
matrimonial  property  regimes  and  property  regime  aspects  of  registered  partnerships; 
and,  (ii)  interconnected  national  registers;  and,  (iii)  the  organisation  of  information 
campaigns on these 

•  Compulsory establishment of interconnected national registers of matrimonial property 

regimes and property regime aspects of registered partnerships.  

10. 

ANALYSIS OF THE IMPACTS OF POLICY OPTIONS  

10.1. 

Policy Option 1: Status quo. 

(i) Objectives to achieve: This option would not meet the objectives indicated above. The 
Member  States  are  unlikely  to  streamline  their  national  rules  (both  with  regard  to 
jurisdiction rules and conflict of law rules) – they may make changes to their national legal 
systems  on  their  own  initiative,  but  it  is  unlikely  that  these  will  be  made  with  a  view  to 
harmonize  the  country’s  rules  with  those  of  other  EU  Member  States.  In  particular, 
variations  between  national  systems  in  terms  of  (i) community  property  and  separate 
property,  as  well  as  (ii) unitary  systems  and  systems  of  separate  conflict  of  law  rules  for 
movable and immovable property are likely to remain. On the contrary, it is possible that 
the existing problems are likely to become aggravated in view of current trends of citizens 
–  moving  to  another  country,  getting  married  with  citizens  from  other  countries,  having 
assets in other countries. In summary, this option does not imply any positive effects for 
citizens or third parties and problems would become worse.  

(ii) Fundamental  rights:  Maintaining  the  status  quo  would  mean  that  the  fundamental 
right to property according to Article 17 of the Charter, which also protects the right of the 
spouse  or  partner  to  property  acquired  during  the  marriage/partnership  in  case  of 
dissolution  of  the  marriage/partnerships,  would  not  be  fully  ensured  because  different 
jurisdictions or laws may apply to the same property which would incur long proceedings 
to determine which court will handle the case or which law will apply, thus significantly 
delaying access to property. Furthermore, the fundamental rights in Articles 20, 21 and 23 
of the Charter (equality before the law, non-discrimination and equality between men and 
women) would not be fully ensured when, in the case of divorce or separation, one party 
can rush to a court that may be more favorable to him/her.  

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29 

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(iii) Social  effects:  The  problems  experienced  by  the  weaker  party  in  the  couple  during 
separation  proceedings  are  also  likely  to  remain  as  the  spouse  or  partner  in  a  better 
financial  situation  may  hire  a  legal  professional  for  advice  and  consequently  rush  to  the 
court where they are most likely to get the most favorable financial outcome for their case. 

(iv) Financial  costs:  This  option  itself  would  not  imply  any  financial  costs  to  the  EU  or 
other public authorities.  

(v) Economic  effects:  The  problems  experienced  by  economically  disadvantaged  are 
likely to remain as legal professionals will be able to charge more for increasing numbers 
of  complicated  cases  due  to  links  to  two  or  more  countries.  Time  delays  and  costs, 
including reduction of the value of assets will become worse than at present. 

10.2. 

Policy  Option  2:  Targeted  provision  of  information  to  raise  citizens’ 
awareness  that  the  property  regime  may  not  be  the  same  in  other  Member 
States and that they can register their regime 

(i) Objectives  to  achieve:  This  option  would  have  some  limited  positive  impacts  with 
regards  to  achieving  the  objectives.  Firstly,  it  could  to  a  very  limited  extent  prevent  the 
occurrence of parallel proceedings and the application of different substantive laws, if the 
information provided would lead to that a higher proportion of couples take precautionary 
measures,  e.g.  in  the  form  of  a  marriage  or  partnership contract and choice of applicable 
law.  Although  this  option  would  not  introduce  any  rules  concerning  the  ability  for  the 
citizens to choose the law applicable to their property, as citizens are made aware that their 
property  regime  may  change  if  they  move  to  another  Member  State,  they  may  be  more 
inclined  to  seek  advice  and  take  necessary  steps  to  ensure  that  this  does  not  have 
significant negative consequences in the future.  

However, it is also possible that despite being aware, couples decide that it is not necessary 
or desirable for them to take precautionary measures, or they may not agree on what law to 
choose.  Furthermore,  given  the  vast  differences  between  national  legal  systems  it  is  also 
possible  that  measures  taken  in  the  contract  may  not  be  valid  in  the  place  where 
proceedings  are  being  handled  or  that  a  choice  of  law  is  not  possible.  An  information 
campaign would raise awareness amongst spouses and partners that it is important for them 
to  be  aware  of  their  property  regime,  and  that  they  have  the  possibility  to  register  their 
property regime and may therefore encourage them to do so.  

(ii) Fundamental  rights:  This  option  would  have  a  positive  impact  on  Article  17  of  the 
Charter (right to property). Upon being informed of the possible consequences of moving 
to  another  country  on  their  property  regime,  a  couple  can  decide  to  draw  up  a  marriage 
contract, or a partnership contract. This would therefore ensure that the parties have agreed 
on the measures to be taken in relation to their property in the event of divorce or death, 
thus respecting both parties’ right to property. Furthermore, this option would also have a 
positive  impact  on  third  parties  wishing  to  purchase  the  property  from  the  couple  as  a 
contract  would  clarify  who  is  entitled  to  sell  and  under  what  conditions.  However,  this 
would be only marginal impact as such measures may not be taken despite awareness of 
potential problems, or that the measures are not valid.  

(iii) Social effects: There would be minor improvements compared to the present situation. 
In particular costs for legal advice and assistance could slightly decrease in case adequate 

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30 

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precautionary  measures  (choice  of  law)  were  taken  to  reduce  the  likelihood  of  problems 
and if these measures are recognised by the Member State handling the proceedings.  

(iv) Financial costs: The costs related to producing the information leaflets would amount 
to  2  million  euro  per  year  including  drafting,  amendments,  translation  and  distribution 
costs.  

(v) Economic effects: it is estimated that this option would lead to maximum 4% savings 
of the estimated costs, which a new initiative should address.  

10.3. 

Policy option 3: Harmonisation of jurisdiction rules and introduction of rules 
on automatic recognition and enforcement of judgments, decisions and deeds.  

(i) Objectives  to  achieve:  This  option  would  have  a  limited  positive  impact;  however  it 
would  have  some  advantages  compared  to  the  current  situation.  The  rules  of  jurisdiction 
would  be  harmonized  and  rules  on  lis  pendens  would  be  introduced,  thus  the  couples 
would  be  able  to  avoid  parallel  court  proceedings.  It  would  also  increase  legal  certainty. 
Problems with regard to the recognition of decisions would be greatly reduced. This means 
that the citizens no longer would have to go to courts in different countries and go through 
the same procedures already finalized in another country. However as the applicable law 
rules  would  be  not  harmonized,  the  lack  of  clarity  for  the  spouses  with  regard  to  the 
applicable law questions would remain unresolved.  

(ii) Fundamental  rights:  This  option  would  have  an  impact  on  Article  17  (right  to 
property) of the European Charter of Fundamental Rights. By extending the jurisdiction of 
the  court  dealing  with  this  separation/divorce  or  with  the  succession  to  have  also 
jurisdiction  with  regard  to  the  liquidation  of  the  matrimonial  property  regime,  and  by 
introducing  lis  pendens  rules  and  rules  on  automatic  recognition  and  enforcement  of 
decisions,  this  option  would  reduce  the  costs  to  parties  in  terms  of  time  delays  and 
administrative procedures (in terms of parallel proceedings and ensuring that the decision 
is  recognised  and  enforced).  The  reduction  of  such  costs  would  therefore  allow  both 
parties,  both  weak  and  strong,  to  have  a  right  to  access  their  property.  This  would  also 
contribute  to  respecting  the  equality  before  the  law  (Article  20,  European  Charter  of 
Fundamental  Rights). However, the possibility that the stronger  party seeks legal advice, 
and consequently ‘chooses’ the court that would be most favourable to him/her (by rushing 
to court), remains.  

(iii) Social impacts: This option would result in costs savings for the citizens because of 
the  prevention  of  parallel  proceedings.  Savings  would  also  be  incurred  because  of  the 
facilitation of recognition and enforcement of decisions throughout the EU. However, this 
option does not address problems faced by the weaker party: the wealthier one may take 
advantage  of  legal  advice  and  rush  to  court  in  order  to  seize  the  court  with  the  most 
advantageous outcome for him/her.  

(iv)  Financial  costs:  Financial  costs  for  administration  would  be  very  low  for  the 
introduction of new jurisdiction rules.  

(v) Economic impacts: This option would lead to cost savings for Member States, which 
are estimated by the study to represent a maximum of 2% of the costs currently pertaining 
to the problems addressed by the policy options. 

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10.4. 

Policy option 4: Harmonisation of conflict of law rules.  

(i) Objectives to achieve: Although this option would not fully achieve the objectives, it 
would  have  some  advantages  compared  to  the  current  situation.  This  option  would 
introduce  harmonised  conflict  of  law  rules  based  on  a  hierarchy  of  connecting  factors. 
Several  jurisdictions  could  still  handle  the  case  (i.e.  the  problem  of  parallel  proceedings 
would remain), but they would apply the same conflict of law rules and, as a result, they 
should also apply the same substantive law on property regimes. This policy option would 
introduce  harmonised  rules  on  a  limited  choice  of  law  for  the  spouses  or  partners.  As  a 
result,  in  those  cases  where  a  choice  was  made,  there  would  be  increased  certainty  as  to 
what  law  will  be  applied  to  the  property  regime  thus  increasing  the  predictability  of  the 
outcome of the proceedings. It would also imply great benefits in terms of eliminating the 
impetus  to  rush  to  court  and  thereby  prevent  forum  shopping.  This  option  would  also 
introduce  the  principle  of  immutability  and  a  unitary  system,  whereby  all  matrimonial 
property (both movable and immovable) and wherever it is situated would be subject to a 
single law. This would greatly improve legal certainty for the parties that have not made a 
choice as  the  hierarchy  of connecting  factors would ensure legal certainty with regard to 
the  applicable  law.  This  option  would  contribute  to  ensuring  compatibility  with  other 
(proposed) EU rules in relation.  

(ii) Fundamental  rights:  This  option  would  have  an  impact  on  Article  17  (right  to 
property) of the European Charter of Fundamental Rights, while this option would reduce 
the costs to parties in terms of time delays and administrative procedures. The reduction of 
such  costs  would  therefore  allow  the  parties,  both  weak  and  strong,  better  rights  to 
property,  consequently  contributing  to  respect  the  equality  between  men  and  women 
(Article 23 of the European Charter of Fundamental Rights). However as this option does 
not include any rules on recognition and enforcement, in case problems arise in relation to 
the  recognition  of  a  decision  the  proceedings  may  nevertheless  be  delayed.  This  would 
have slightly negative consequences on the right to property as it would take longer for the 
parties to access their property in terms of time delays.  

(iii) Social effects: There would be costs reductions for citizens in terms of reduced legal 
fees (in particular in those cases when the spouses or partners made a choice of law). Also 
it  would  be  benefits  for  economically  disadvantaged  persons  as  the  simplification  of  the 
proceedings  through  harmonisation  of  conflict  of  law  rules  will  eliminate  the  reason  for 
rush  to  court  (forum  shopping)  by  the  wealthier  spouses  or  partners.  Moreover,  costs 
would also be reduced as legal professionals would not need to look into other countries’ 
conflict of law rules and since no renvoi would be necessary (which would save time and 
money). However, there would still be costs e.g. due to the lack of adoption of automatic 
rules on recognition and enforcement.  

(iv) Financial  costs:  Financial  costs  for  administration  would  be  very  low  for  the 
introduction of new rules.  

(v) Economic effects: This option would lead to some limited cost savings. These savings 
are  estimated  to  be  maximum  12%  (by  EPEC)  of  the  costs  currently  pertaining  to  the 
problems addressed by the policy options.  

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10.5. 

Policy  Option  5:  Uniform  optional  European  proforma  for  a  marriage 
contract  

As a preliminary remark, it has to be noted that this assumption has been developed only 
for  married  couples,  by  taking  into  account  the  existing  rules  in  Europe  in  matrimonial 
property regimes. 

(i) Objectives to achieve: the introduction of Uniform optional European proforma for a 
marriage contract would ensure that where people have opted to draw up such a contract, 
its format and content would be recognised throughout the EU. For the citizens drawing up 
such  contract  would  be  reminded  that  they  can  use  the  possibility,  offered  by  the 
harmonisation  of  conflict  of  law  rules,  to  choose  the  law  applicable  to  their  matrimonial 
property regime. As the Uniform optional European proforma for a marriage contract also 
includes the possibility to amend the contract if a couple moves to another Member State 
and  in  case  they  are  aware  that  they  can  change  the  law  applicable  to  their  matrimonial 
property regime, they could take the necessary steps to choose the law that would facilitate 
proceedings the most in situations of divorce or death.  

(ii) Fundamental  rights:  this  option  would  have  an  impact  o  Article  17  (right  of 
property). By allowing parties to choose the applicable law, this option would reduce the 
costs  to  parties  in  terms  of  time  delays  and  administrative  procedures.  The  reduction  of 
such  costs  would  therefore  allow  the  parties,  both  weak  and  strong,  to  better  access  to 
property.  This  would  also  contribute  to  respecting  the  equality  between  men  and  women 
(article 23).  

(iii) Social  impacts:  the  introduction  of  the  Uniform  optional  European  proforma  for  a 
marriage  contract  would  increase  legal  certainty  in  that  it  would  increase  the  number  of 
citizens who draw up a marriage contract, choose a law and amend it when necessary. This 
option would also greatly benefit third parties, since the proforma foresees that additional 
information clauses be included informing third parties in relation to matrimonial property 
regime of the spouses20.  

(iv) Financial costs: This option would cause costs for administrative work to produce the 
necessary  legislation  at  EU  level.  This  is  estimated  to  be  the  equivalent  of  one  FTE 
Commission  official  during  one  year.  To  ensure  judicial  cooperation  training  of  legal 
professionals in the Member States also would be required.  

(v) Economic effects: This option would lead to some limited cost savings. These savings 
are  estimated  to  be  maximum  17  %  of  the  costs  currently  pertaining  to  the  problems 
addressed  by  the  policy  options.  Nevertheless,  this  option  has  been  developed  only  for 
married couples, and a vast majority of experts consider that such a proposal is immature, 
because of big differences that still exists between legislation of Member States. 

20 

The Proforma foresees that third parties should be informed in relation to: who is the owner of the 
property; what are the powers of the spouses with regard to the administration of the property; the 
responsibility of the spouses for debts incurred; and the effects of the chosen regime for and against 
third parties. 

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10.6. 

Policy Option 6: Harmonisation of conflict of law rules and jurisdiction rules, 
and  introduction  of  rules  on  automatic  recognition  and  enforcement  of 
judgments 

Harmonised  conflict  of  law  rules  would  ensure,  as  far  as  possible,  that  the  same  law  is 
applied throughout the EU on a same case. They would also help preventing the occurrence 
of forum shopping as there would no longer be a need to rush to the court which could lead 
to the most favourable outcome for one of the parties. 

Moreover,  the  introduction  of  the  rules  on  jurisdiction  and  lis  pendens  provision  in 
combination with rules on recognition and enforcement of judgments would significantly 
reduce  the  possibility  of  parallel  and  conflicting  proceedings  or  of  lack  of  proceedings. 
This set of rules would lead to very few possibilities for parallel proceedings.  

There is a minor risk that despite harmonised conflict of law rules different laws might be 
applied by the courts of the Member States (for instance due to a different interpretation of 
habitual residence). It is expected, however, that legal certainty would increase in the long 
term (e.g. through case law and rulings by the ECJ). 

This  policy  option  would  introduce  harmonised  conflict  of  law  rules  entailing  a  limited 
choice of law for the spouses. As a result, in those cases where a choice was made, there 
would  be  increased  certainty  as  to  what  law  will  be  applied  to  the  matrimonial  property 
regime thus increasing the predictability of the outcome of the proceedings. 

This  option  would  also  introduce  rules  on  automatic  recognition  and  enforcement  of 
judgments, decisions and deeds, thus increasing the likelihood that the choice made by the 
spouses  is  recognised  and  applied  in  all  Member  States.  This  would  contribute  to 
overcoming  problems  related  to  non-recognition  of  foreign  decisions  relating  to  property 
regimes of married couples and registered partners. 

For  Policy  Option  7,  "Provision  of  information  on  property  regimes  of  married 
couples and registered partnerships", several sub-options have been envisaged. 

As a preliminary remark, the idea to create a central EU register of matrimonial property 
regimes and property regime aspects for registered partnership has been discarded, because 
of  its  costs,  and  because  since  it  would  not  be  compulsory  to  register  property  regimes, 
uncertainties as to whether a such a regime exists will remain with the existing difference 
between systems of registration. 

10.7. 

Policy  Option  7(a):  Creation  of  a  webpage  on  existing  registers  of  property 
regimes and national rules 

Access to information would be slightly improved for legal professionals and third parties 
desiring to determine the property regime applying to the property or land they are about to 
purchase. However, there would still be Member States where such registers have not been 
established, and in the other Member States there is not always an obligation for couples to 
register any document indicating which property regime applies. Cost reductions would be 
particularly significant for international marriages when one spouse disposing of property 
under community property regime, and for international registered partnerships and more 
especially  regarding  problems  occurring  at  separation.  Impacts  on  different  social  and 
economic  groups:  costs  for  legal  advice  and  assistance  could  slightly  decrease  if  it 
becomes easier to access information, but the impact of this option would only be limited. 

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Considering  Fundamental  Rights,  it  would  have  a  minor  positive  impact  on  Article  17 
(right to property): if information is easier to access for legal professionals and citizens, by 
speeding time delays in finding the correct information, and accessing their property much 
faster.  Social  impacts:  costs  for  legal  advice  and  assistance  could  slightly  decrease  if  it 
becomes easier to access information, but the impact of this option would be very limited. 
Financial  costs:  this  option  would  lead  to  costs  related  to  the  establishment  of  the 
webpage. These costs are estimated at 5000 euro (and very low maintenance costs). 

10.8. 

Policy  Option  7(b):  Creation  of  a  database/knowledge  management  system 
on existing registers of matrimonial property regimes and national rules. 

As  in  the  previous  case,  access  to  information  would  be  slightly  improved  for  legal 
professionals and third parties. In addition, this option would provide a more user-friendly 
information  tool  which  would  allow  citizens  to  access  information  by  typing  key  words 
concerning  their  case.  This  option  however,  significantly  relies  on  the  ability  and 
willingness  of  Member  States’  authorities  to  update  information  regularly;  if  this  is  not 
done there is a risk that the information provided in the database may be incorrect. For the 
same  reasons  as  those  mentioned  in  the  previous  policy  option,  the  extent  of  the 
information  they  contain  would  remain  limited.  Fundamental  Rights,  social  impacts, 
economic and financial impacts would be the same that those in the previous sub-option. 
Costs: this option would lead to costs related to the establishment of a database/knowledge 
management  system.  The  estimated  annual  costs  are  200  000  euro  including  translation 
costs (and annual technical maintenance). 

10.9. 

Policy  option  7(c):  Commission  Recommendation  on  the  establishment  of 
interconnected national registers of property regimes and the organisation of 
information campaigns.  

This  option  would  increase  access  to  information  on  property  regimes.  However,  even 
though registration of property regimes would be encouraged, registration would still not 
be  compulsory.  This  means  that  although  registers  would  be  available  in  a  higher 
proportion  of  EU  Member  States,  a  confirmation  that  no  property  regime  has  been 
registered does not mean necessarily that no property regimes exist.  

Fundamental rights: the right of property (article 17) is promoted if property regimes are 
identified at a higher degree. When exchanging information between registers, it would be 
necessary to ensure the protection of personal data. 

Financial costs: Overall, costs of implementing the Recommendation are estimated to be 
50 million euro across the EU (borne and organised at national level). Some of these costs 
would be regained from couples who register their property regimes and through fees paid 
for searches for property regimes.  

Social  impacts:  the  option  would  trigger  some  benefits  for  (i)  ordinary  citizens  and 
economic actors (by increasing protection of third parties), (ii) the spouses and partners (by 
increasing  indirectly  their  knowledge  of  the  property  regimes),  and  (iii)  the  legal 
professionals  involved  in  the  liquidation  of  the  property  regime  (this  option  would 
facilitate 
the 
information  about  property 
Recommendation  would  not  impose  any  obligation  on  Member  States.  Besides,  the 
recommendation  would  also  include  registration  of  property  regimes  of  registered 
partnerships.  However,  it  was  generally  emphasised  that  this  option  would  only  apply  to 

regimes).  However, 

their  access  of 

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35 

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countries  that  recognise  partnerships  and  since  it  is  not  (and  should  not  be)  made 
compulsory to establish such register, this option would only have a very limited impact on 
access to information concerning property regimes of registered partnerships.  

10.10.  Policy  option  7(d):  Compulsory  establishment  of  interconnected  national 

registers of property regimes.  

All Member States would be required to establish a national register of property regimes 
and  property  regime  aspects  of  registered  partnerships,  which  would  be  responsible  for 
storing  data  concerning  the  existence  of  all  the  property  regimes.  The  national  registers 
would  be  interconnected,  (through  a  system  similar  to  the  one  developed  concerning  the 
interconnection of national registers of wills).  

Compared to the previous option, this policy option would increase access to information 
on matrimonial property regimes to a greater extent. This would reduce costs for legal fees 
and  time  delays  as  information  on  the  property  regime  would  be  quickly  and  easily 
available. However, it would not be compulsory to register property regimes. This option 
could  lead  to  reduction  of  costs,  particularly  significant  for  international  marriages  and 
international registered partnerships.  

Social impacts: these would be the same than in the previous option.  

Financial costs: Considering the costs of maintenance and registers, the initial costs vary 
greatly between Member States (from 26,000 to 600,000 euro). This option could lead to 
reduction  of  costs,  particularly  significant  for  international  marriages  and  registered 
partnerships. Regarding impacts on different social and economic groups, they would 
be the same than in the previous option. On the same way, and as in the previous option, 
more citizens may register their property regimes and it would be easier to gain access to 
these  whilst  liquidating  the  property.  The  positive  benefits  are  primarily  reduced  time 
delays and costs. 

On the basis of the assessments made in terms of the achievement of objectives, and cost 
estimations  made,  the  preferred  option  on  information  on  property  regimes  is  the 
creation  of  a  webpage  on  existing  registers  of  matrimonial  property  regimes  and 
national  rules.  Although  some  of  the  other  policy  options  achieve  the  objectives  to  a 
slightly  higher  extent,  the  predictable  costs  for  those  outweigh  the  limited  additional 
benefits. 

11. 

COMPARISON OF THE POLICY OPTIONS 

Policy  Option  1:  Status  quo.  This  option  would  not  meet  the  objectives,  and  variations 
between national systems are likely to remain. The situation would worsen in view of the 
trends of EU citizens’ increasing international connections; negative economic effects are 
likely to become aggravated for citizens. 

Policy Option 2: Targeted information provision to raise citizens’ awareness that the 
matrimonial  property  regime  may  not  be  the  same  in  other  Member  States.  This 
option would not solve any of the current problems as the existing legal differences would 
remain,  implying  that  it  would  only  benefit  those  citizens  that  made  an  active  choice 
because of the information received. Benefits would be very limited and dependent on how 

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36 

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well  the  information  is  distributed  and  the  willingness  of  the  spouses/partners  to  take 
additional steps to protect themselves against potential future problems. 

Policy  Option  3:  Harmonisation  of  jurisdiction  rules  and  introduction  of  rules  on 
automatic  recognition  and  enforcement  of  judgements,  other  decisions  and  deeds. 
This  option  would  prevent  several  jurisdictions  from  handling  the  same  case  in  parallel, 
offer citizens a possibility to bring all legal matters relating to their case before the same 
court,  and  would  also  lead  to  cost  reductions  as  there  would  be  less  problems  of  non-
recognition. However, the lack of harmonisation of conflict of law rules could be abused 
by  the  wealthier  spouse/partner  and  lead  to  forum  shopping  as  difference  laws  (with 
different outcomes) could be applied in different Member States. 

Policy Option 4: Harmonisation of conflict of law rules. There would be increased legal 
certainty with regard to the applicable law and thereby the outcome of the liquidation of 
the patrimonial property. This reduces problems of forum shopping. There would be costs 
reductions for citizens in terms of reduced legal fees, in particular in those cases when the 
spouses/partners have made a choice of law. However, parallel proceedings would still be 
a  possibility.  Furthermore,  there  would  still  be  costs  due  to  non-recognition,  legal 
uncertainty would still be a problem due to the lack of harmonised jurisdiction rules and 
the lack of recognition and enforcement of decisions. 

Policy Option 5: Uniform optional European proforma for a marriage contract. This 
option could reduce problems in terms of time delays and costs since it would prompt the 
spouses to make a choice of law and reduce the likelihood that a decision is not recognised. 
It  will  also  reduce  costs  for  legal  fees  as  the  same  conflict  of  law  rules  will  be  applied 
across  the  Union  and  increase  legal  certainty.  However,  the  drawing  up  of  a  marriage 
contract is sometimes costly, and the benefits of the marriage contract would only benefit 
those that make an active choice to draw up such. Besides, it could be only envisaged for 
married  couples,  and  could  not  solve  the  problems  faced  by  couples  in  registered 
partnership. 

Policy  Option  6:  Harmonisation  of  conflict  of  law  rules  and  jurisdiction  rules,  and 
introduction of rules on automatic recognition and enforcement of judgements. This 
option  is  more  advantageous  than  the  previous  options  as  it  is  combining  the  three  main 
legal  elements  at  disposal  to  handle  international  property  regimes  (jurisdiction  rules, 
conflict  of  law  rules  and  rules  on  recognition  and  enforcement).  Harmonised  jurisdiction 
rules in combination with conflict of law rules and rules on recognition and enforcement 
would  significantly  reduce  the  scope  for  parallel  and  conflicting  proceedings  or  lack  of 
proceedings.  Furthermore,  the  introduction  of  special  rules  of  jurisdiction  would  ensure 
that  spouses/partners  can  bring  all  matters  relating  to  their  case  in  front  of  one  court. 
Predictability  of  the  outcome  of  the  liquidation  of  the  patrimonial  property  would  be 
greatly  improved  in  those  cases  a  choice  of  law  was  made.  The  choice  is  likely  to  be 
recognised  in  other  Member  States  due  to  the  rules  on  automatic  recognition  and 
enforcement. However, also in cases where no choice was made, the harmonised conflict 
of law rules would imply that all jurisdictions across the EU should apply the same law to 
the case. 

Policy Option 7: regarding to the achievements of objectives of each sub-options, and cost 
estimations  made,  the  preferred  sub-option  on  information  on  property  regimes  is  the 
creation  of  a  webpage  on  existing  registers  of  matrimonial  property  regimes  and 
national  rules.  Although  some  of  the  other  policy  options  achieve  the  objectives  to  a 

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slightly  higher  extent,  the  predictable  costs  for  those  outweigh  the  limited  additional 
benefits. 

On the basis of the assessments of the policy options, the preferred policy option amongst 
policy options is Policy Option 6 completed by Policy Option 7a. Indeed, this option would 
address current, as well as potential, problems. It will lead to the greatest cost reductions, 
whilst at the same time only imply minimal establishment and implementation costs. 

EN 

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Effectiveness of options against policy objectives 

Prevent parallel 
proceedings and 
application of 
different substantive 
laws 

Ensure choice of 
applicable rules 
and legal 
provisions  

Facilitate the 
recognition and 
enforcement of 
judgements and other 
decisions 

Facilitate 
bringing all legal 
matters before 
the same court 

Ensure spouses and 
partners know 
applicable law in 
case of liquidation 

Ensure 
compatibility with 
other proposed EU 
rules  

Increase access to 
information on 
property regimes 

Option 1 

no effect 

no effect 

no effect 

no effect 

no effect 

no effect 

no effect 

Option 2 

limited effect 

limited effect 

no effect 

no effect 

limited effect 

no effect 

positive effect 

Option 3 

positive effect 

no effect 

positive effect 

positive effect 

no effect 

positive effect 

no effect 

Option 4 

positive effect 

positive effect 

no effect 

no effect 

positive effect 

no effect 

no effect 

Option 5 

no effect 

positive effect 

no effect 

no effect 

positive effect 

limited effect 

no effect 

Option 6 

positive effect 

positive effect 

positive effect 

positive effect 

positive effect 

positive effect 

no effect 

Option 7 

no effect 

limited effect 

no effect 

no effect 

positive effect 

no effect 

positive effect 

EN 

39 

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12. 

PREFERRED POLICY OPTION 

This section describes the preferred policy option and the expected impacts of the preferred 
policy option. 

The harmonisation of conflict of law rules and jurisdiction rules, the introduction of rules 
on automatic recognition and enforcement of judgments, other decisions and deeds and the 
creation of a webpage on existing registers of property regimes and national rules. 

This option would involve EU level action in the form of: 

•  The adoption of two Regulations (there could be one Regulation or two, one dealing with 
married couples, the other with registered partnerships) on the harmonisation of conflict of 
law rules and jurisdiction rules and the introduction of rules on automatic recognition and 
the enforcement of judgments, other decisions and deeds; and, 

•  The  creation  of  a  webpage  on  existing  registers  of  matrimonial  property  regimes  and 

national rules. 

Why  two  Regulations?  As  mentioned  in  the  problem  definition,  couples  in  registered 
partnerships face some specific difficulties because partnerships do not exist in all Member 
States. As a result jurisdiction rules and rules on applicable laws cannot be the same as those 
for marriages. Indeed, the applicable law should not be the law of a Member State which does 
not recognise registered partnerships. Additionally, the competent court should be in such a 
Member  State.  To  put  together  all  the  different  rules  that  apply  to  matrimonial  property 
regimes  and  property  regime  aspects  of  registered  partnerships  would  lead  to  an  extremely 
long  and  complicated  instrument,  which  would  be  very  difficult  to  understand  and 
implement.  Furthermore,  in  view  of  the  outcome  of  the  consultation  with  Member  States, 
which  revealed  that  whilst  there  is  a  general  agreement  in  favour  of  including  registered 
partnerships, the majority of country representatives did not believe that it this was feasible in 
a  single  instrument,  and  given  the  different  scale  of  the  problems  for  married  couples  and 
couples  in  registered  partnerships,  two  separate  instruments  would  be  more  practical  and 
more feasible politically. 

12.1.  The preferred option’s achievement of the policy objectives 

As indicated in the assessment of the individual policy options, this option would address the 
following identified problems better that any other of the options: 

•  Parallel  proceedings  and  application  of  different  substantive  laws  to  the  same  property 

regime; 

•  Insufficient (limited) choice of law for the spouses and the acceptance of this in other EU 

Member States; 

•  Non-recognition  and  enforcement  of  judgments,  other  decisions  and  deeds  on  the 

liquidation of property regimes; 

•  The possibility to bring all legal matters relating to one case before the same court; 

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•  The ability of the spouses or partners to know, where no applicable law was chosen, which 

law will be applicable in the event of liquidation of their property regime;  

•  Compatibility  with  other  proposed  EU  rules  in  relation  to  succession  and  wills  and 

applicable law in divorce proceedings; and, 

•  The limited availability and access to information on property regimes. 

Considering  all  the  described  positive  impacts  of  the  preferred  option,  it  has  to  be  outlined 
that  only  having  an  EU  wide  property  regime  where  all  countries  have  the  same  rules 
(including  substantive  law)  would  reduce  the  problems  further  than  the  preferred  option. 
Such an EU wide matrimonial property regime would be politically and culturally unfeasible.  

The  introduction  of  rules  on  jurisdiction  with  regard  to  the  liquidation  of  property  regimes 
would  extend  the  jurisdiction  of  the  court  dealing  with  a  divorce  or  with  a  succession  to 
matters also relating to the liquidation of the property regime. This would give greater legal 
certainty  to  citizens  as  the  jurisdiction  handling  the  divorce  or  succession  would  also  deal 
with the liquidation of the property regime.  

The  harmonised  jurisdiction  rules  would  lead  to  very  few  possibilities  for  parallel 
proceedings,  and  would  increase  legal  certainty  for  couples.  The  introduction  of  the  lis 
pendens  provision  in  combination  with  rules  on  recognition  and  enforcement  of  judgments 
(as  described  below)  would  significantly  reduce  the  possibility  of  parallel  and  conflicting 
proceedings.  

Moreover, the harmonised conflict of law rules would ensure, as far as possible, that the same 
law  is  applied  throughout  the  EU  with  regard  to  the  same  case.  The  conflict  of  law  rules 
would also help in preventing the occurrence of forum shopping as there would no longer be 
a need to rush to the court which could lead to the most favourable outcome for one of the 
parties (normally the wealthier party with access to legal advice). There is a minor risk that, 
despite harmonised conflict of law rules, different laws might be applied by the courts of the 
Member States21 or that the same law might be applied in a slightly different way in case it is 
applied  as  a  foreign  law.  It  is  expected,  however,  that  legal  certainty  would  increase  in  the 
long term (e.g. through case law and rulings by the ECJ). 

The  introduction  of  rules  on  a  limited  choice  of  law  for  the  spouses  would  increase  legal 
certainty, when a choice of law has been made, in relation to the law that will apply to the 
property regime in case of e.g. divorce, separation or death.  

Problems in relation to recognition of judgments, decisions and deeds are likely to be almost 
completely  eliminated.  This  means  that  citizens  no  longer  would  have  to  experience  time 
delays through the national exequatur procedure, go to courts in different countries, and go 
through  the  same  procedures  as  those  already  finalised  in  another  country  (resulting  in 
additional  costs).  This  would  also  increase  the  predictability  of  the  outcome  of  the 
proceedings. 

Problems  concerning  citizens  who  have  not  made  a  choice  of  law  would  also  be  addressed 
through the introduction of a system based on a hierarchy of connecting factors that would be 

21 

As an example, due to different interpretation of habitual residence. 

EN 

41 

   EN 

 
                                                 
applicable to property regimes and would be common to all Member States. Furthermore, the 
principle of immutability and a unitary system would be included, thus ensuring that the law 
applicable  to  the  matrimonial  property  regime  does  not  change  when  the  spouses  move  to 
another Member State and applies to all assets. 

Under  the  preferred  option,  there  would  be  increased  access  to  information  on  property 
regimes  in  other  Member  States  through  the  creation  of  a  webpage.  This  webpage  would 
provide  contact  details  on  existing  registers  and  would  also  facilitate  access  to  information 
concerning  national  legislation  on  property  regimes.  More  specifically,  this  option  would 
provide third parties with better access to information on the property regime applying to the 
property or land they are about to purchase. 

Overall the preferred option would increase the likelihood that the rights of each spouse or 
partner, private and public creditors etc. would be respected in an efficient way. The option 
would also lead to an increased likelihood that the initial choices of the spouses would not be 
affected by any decision to move to, or acquire property, in another country. 

12.2.  Economic impacts 

According  to  the  EPEC  Consortium,  who  carried  out  the  impact  assessment  study,  the 
preferred policy option could lead to cost reductions of up to an estimated maximum 32% of 
the costs currently pertaining due to the problems addressed, i.e. 0.4 billion euro (25% of 1.1 
billion euro)22.  

Financial costs: the preferred policy option would lead to the following financial costs: 

At EU level this preferred policy option would lead to the costs for administrative work to 
produce  the  necessary  legislation  at  EU  level.  At  national  level  costs  would  occur  while 
establishing  the  necessary  additional  national  rules  (e.g.  regarding  the  jurisdiction  of 
applicable  law  rules),  also  in  training  of  legal  professionals  (e.g.  lawyers,  judges,  notaries, 
solicitors)  and  judicial  cooperation.  Both  –  EU  and  the  Member  States  –  would  have 
additional costs for information campaign, presenting the new legislative element.  

12.2.1.  Impact on the legal professions 

The implications of simplifying the law (and reducing legal costs) would be reduction in the 
fees  for  legal  professionals.  The  limited  choice  of  law  for  the  spouses  and  partners  in  the 
preferred  option  is  likely  to  increase  the  proportion  of  marriage  contracts  and  partnerships 
contracts drawn up, thus it would lead to the extent of the work for legal professionals. By far 
the most significant effects would be on legal professionals involved in difficult cases. Here, 
there  is  a  clear  potential  for  fee  reductions  for  clients,  and  thus  revenue  foregone  for  legal 
professionals. However, these effects are likely to be twofold. First, a reduction in the volume 
of  work,  second,  an  increase  in  the  ‘quality’  of  the  work  which  could  be  associated  with 
improved financial returns and efficiency. However legal professions are always a subject to 

22 

The  creation  of  a  webpage  on  existing  registers  of  matrimonial  property  regimes  and  national  rules 
would lead to approx. 1.5% costs reduction of 1.1 billion euro. The remainder of costs saving would be 
an outcome of harmonization of conflict of law rules and jurisdiction rules, and introduction of rules on 
automatic recognition and enforcement of judgments, other decisions and authentic acts/deeds.  

EN 

42 

   EN 

 
                                                 
market changes and the magnitude of those associated with the preferred option is likely to be 
small and gradual.  

12.2.2.  Impact on different social groups and impact on existing inequalities 

There would be benefits for economically disadvantaged citizens as the simplification of the 
proceedings  through  harmonisation  of  conflict  of  law  rules  will  decrease  the  legal  fees; 
normally  different  laws  will  not  be  applied  by  the  courts  of  different  Member  States. 
Furthermore, the ability to choose the applicable law would also greatly reduce the chances 
that the wealthier party in the couple rushes to court (i.e. forum shopping) where the outcome 
of the proceedings is more likely to be in his/her favour. 

12.2.3.  Impact on taxation 

The preferred option would be tax neutral, in so far as the future Regulations would not result 
in any changes  to the Member States'  national  legislation on taxation (tax base, allowances 
and tax rates). 

12.3. 

Sensitive elements, potential draw – backs and risks 

Potential draw-backs and risks include: 

•  The use of habitual residence as primary connecting factor. 

•  The extent to which citizens take advantage of the possibility to make a choice of law. 

All  options  assessed  have  assumed  that  common  habitual  residence  would  apply  as  the 
primary connecting factor rather than common nationality. Habitual residence seems to be a 
more natural and appropriate connecting factor in cross-border matrimonial property regimes, 
it is an autonomous concept in private international law which is detached from all national 
legal  systems.  It  is  accepted  within  the  framework  of  the  Hague  Conference  on  private 
international law by almost all countries in the world.  

With  regard  to  the  extent  to  which  citizens  take  advantage  of  the  possibility  to  make  a 
choice  of  law,  this  will  impact  on  the  benefits  and  level  of  costs  reductions  the 
implementation of the preferred option will lead to. The more citizens who choose law (and 
make a marriage contract), the greater the benefits will be. At present the tradition of drawing 
up  a  marriage  contract  varies  between  Member  States,  thus  the  proportion  of  citizens  who 
take  the  possibility  to  make  a  choice  of  law  (in  a  marriage  contract)  may  therefore  vary 
between Member States. It is likely that the proportion would increase in the long term. 

This decision is based on the balance between the need to ensure legal certainty on the one 
hand (in such a case transfer of jurisdiction and choice of jurisdiction would not be included 
in the content of the preferred option) and flexibility to take account of the closest connection 
of the parties in individual cases. It is also related to the consistency between the content of 
this proposal and other related legislation. As previously mentioned, the extent of choice of 
law for partners in registered partnerships could not be the same that for married couples. 

EN 

43 

   EN 

 
12.4. 

Fundamental rights, proportionality and EU added value 

12.4.1.  Fundamental rights 

The  preferred  policy  option  respects  fundamental  rights  and  observes  the  principles 
recognised  in  the  Charter  of  Fundamental  Rights  of  the  European  Union  and  in  particular 
Article 21 - non-discrimination, Article 7 - respect for private and family life, Article 9 - right 
to marry and right to found a family, Article 17 – right to property.  

Furthermore, the proposals aim at increasing legal certainty, access to justice as foreseen in 
Article 47 of the Charter of Fundamental Rights of the European Union. In particular, they 
will be beneficial for the exercise of the right of free movement and of residence by European 
citizens.  

12.4.2.  Proportionality 

The present proposal respects the principle of proportionality, as it concerns EU Instruments 
on property regimes only for married couples and registered  partnerships with international 
elements,  i.e.  only  cases  with  cross-border  elements  are  concerned.  It  would  not  harmonise 
substantive  laws;  it  would  merely  aim  to  achieve  a  situation  where  parallel  proceedings  do 
not  occur  and  where  different  substantive  laws  are  not  applied  to  the  same  liquidation  of 
matrimonial property. Thus, in this sense, the policy option would be adopted to ensure ‘the 
smooth  co-existence’  of  different  national  substantive  laws.  For  this  purpose  the  policy 
option  would  imply  changes  to  national  legal  systems  in  terms  of  harmonised  jurisdiction 
rules, harmonised conflict of law rules, introduction of a limited choice of law and rules on 
recognition and enforcement of judgments, decisions and deeds.  

The  adoption  of  Regulations  incorporating  these  elements  would  imply  more  changes  in 
some Member States than others (most countries for example already provide the possibility 
for spouses to choose law, although the limits for making this choice may be different or no 
limits  exist).  However,  in  order  to  address  the  problems  and  achieve  the  objectives,  such 
changes  are  necessary.  Indeed,  EU  level  legislative  action  is  necessary;  as  outlined  in  the 
assessments of the individual policy options and comparison of these assessments, Member 
States  would  not  be  able  to  address  the  problems  individually  or  multilaterally  (they  are 
unlikely  to  harmonise  or  otherwise  improve  their  national  rules  to  facilitate  international 
successions without EU level action). 

12.4.3.  European added value 

The  preferred  option  has  the  potential  to  promote  trust  in  the  internal  market.  The 
problems addressed by the preferred policy option are in part a consequence of the internal 
market.  At  the  same  time  if  the  current  problems  are  not  solved,  trust  in  the  EU  internal 
market  and  the  EU  area  of  freedom,  security  and  justice  without  internal  borders  may  be 
damaged.  By  ensuring  more  efficient  handling  of  the  liquidation  of  matrimonial  property 
regimes  with  international  elements,  the  preferred  option  would  promote  trust  in  and  the 
operation of the internal market. 

EN 

44 

   EN 

 
13. 

MONITORING AND EVALUATION 

In order to monitor the effective implementation of the Regulations as well as the success of 
the  webpage,  regular  evaluation  and  reporting  by  the  Commission  will  take  place.  In  this 
respect,  the  proposed  Regulations  will  include  a  requirement  on  Member  States  to  provide 
information on the  application of the Regulations and of all the measures taken by them to 
improve  their  application.  Furthermore,  the  European  Judicial  Network  for  civil  and 
commercial  matters  could  play  an  important  role  to  strengthen  the  cooperation  between 
Member States when applying the Regulations. 

When evaluating the effective implementation of the Regulations, following indicators can be 
taken into account: 

– 

– 

the number of possible parallel proceedings concerning the same case could allow to 
determine if the objective of prevention of the occurrence of parallel proceedings has 
been fulfilled, 

information on the number of couples who made a choice of law for their property 
rights would allow to evaluate if the right to choose the law has been used, 

Furthermore,  for  statistical  purposes  it  could  be  very  useful  to  receive  information  by 
Member State on the number of international marriages/registered partnerships, international 
divorces, separations and successions. 

The Commission will also monitor the webpage on existing registers of property regimes and 
national rules to assess its effective use. 

EN 

45 

   EN 

 
ANNEX I – Glossary 

International  jurisdiction:  Competence  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 (or pre-nuptial agreement): 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. 

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”. 

De facto union / 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. 

"International marriages" include marriages between: 

•  One  national  of  the  country  and  one  national  of  (i)  another  EU  country  or  (ii)  a  third 

country 

•  Two EU nationals from other EU countries 

•  Two nationals from third countries 

•  One EU national from another EU Member State and one national from a third country. 

•  Two EU nationals living in a third country 

•  Two EU nationals having assets in a third country 

Could  also  be  considered  as  "international  married  couples",  couples  which  acquire  or  are 
owners of a property in a Member State other than their country of origin. 

"International divorces" include divorce between:  

EN 

46 

   EN 

 
•  One  national  of  the  country  and  one  national  of  (i)  another  EU  country  or  (ii)  a  third 

country 

•  Two EU nationals from other EU countries 

•  Two nationals from third countries 

•  One EU national from another EU Member State and one national from a third country 

•  Two EU nationals living in a third country 

•  Two EU nationals having assets in a third country 

Could  also  be  considered  as  "international  divorce";  the  divorce  of  a  couple  who  own 
property in a Member State other than their country of origin. 

International registered partnerships" include registered partnership between: 

•  One  national  of  the  country  and  one  national  of  (i)  another  EU  country  or  (ii)  a  third 

country 

•  Two EU nationals from other EU countries 

•  Two nationals from third countries 

•  One EU national from another Member State and a third country national 

Partners do not have the nationality of the place where they register 

lis pendens: a pending lawsuit; a dispute or matter which is the subject of ongoing or pending 
litigation 

renvoi  rule:  the  process  by  which  a  court  adopts  the  rules  of  a  foreign  jurisdiction  with 
respect  to  any  conflict  of  laws  that  arises.  In  some  instances,  the  rules  of  the  foreign  state 
might  refer  the  court  back  to  the  law  of  the  forum  where  the  case  is  being  heard,  or  might 
refer the court to the law of another jurisdiction. 

EN 

47 

   EN 

 
ANNEX II – Information on applicable law and competent jurisdiction in Member States 

1. MARRIED COUPLES 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of choice 
provided if possible) 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

Austria 

√ 

Common nationality 

Habitual  residence  of  the 
spouses  at  the  time  of  the 
conclusion of the marriage 

Belgium 

Czech Republic 

√ 

EN 

Nationality of the spouses 

Lex fori 

Habitual  residence  of  the 
spouses 

48 

√ 

√ 

Specific rules on matrimonial 
regimes 

Domicile or residence  

Nationality 
contentious cases 

in 

non-

(Order unknown) 

Domicile or residence  

Nationality 

(Order unknown) 

Domicile or residence 

Nationality 

EN 

 
  
 
 
 
 
 
 
 
 
 
1. MARRIED COUPLES 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of choice 
provided if possible) 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

Denmark 

Estonia 

Finland 

France 

EN 

√ 

(no further information 
has been obtained 
concerning whether this 
is free or limited) 

Common residence 

Nationality of the spouses 

Last common residence 

Closest connection 

√ 

Limited choice 

√ 

Limited choice 

Specific rules on matrimonial 
regimes 

√ 

Domicile or residence  

Nationality 

(Order unknown) 

Domicile or residence 

Nationality 

√ 

√ 

Competence  based  on  the  domicile 
or residence  

Domicile or residence  

Nationality 

49 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
1. MARRIED COUPLES 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of choice 
provided if possible) 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

Germany 

Greece 

Hungary 

√ 

EN 

Common nationality 

√ 

Limited choice 

Habitual residence when the 
marriage was celebrated 

The  joint  personal  law  of 
the  spouses  at  the  time  of 
the marriage 

The last joint personal law  

Last 

common 

habitual 

50 

(Order unknown) 

Specific rules on matrimonial 
Domicile or residence  

√ 

Nationality 

(Order unknown) 

Specific rules on matrimonial 
regimes 

Domicile or residence  

Nationality 

(Order unknown) 

Specific rules on matrimonial 
regimes 

Competence  based  on 
domicile or residence  

the 

(Order unknown) 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
1. MARRIED COUPLES 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of choice 
provided if possible) 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

residence 

Lex fori 

Lex fori 

Domicile 

Common citizenship 

Place  where  the  marriage 
was celebrated 

(Order unknown) 

√ 

Limited choice 

√ 

√ 

(no further information 
has been obtained 
concerning whether this 
is free or limited) 

√ 

√ 

Domicile or residence 

Domicile or residence  

Domicile or residence  

Domicile or residence  

Nationality 

(Order unknown) 

Domicile or residence  

Nationality 

(Order unknown) 

51 

EN 

Italy 

Ireland 

Latvia 

Lithuania 

Luxembourg 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1. MARRIED COUPLES 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of choice 
provided if possible) 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

Malta 

Netherlands 

Poland 

√ 

Portugal 

Romania 

Romania 

EN 

Nationality 

Common nationality 

Common habitual residence 
of the spouses 

Lex fori 

Common nationality 

Common habitual residence 
of the spouses 

Closest connection 

Common habitual residence 

52 

√ 

Limited choice 

√ 

Limited choice 

Domicile or residence  

(Order unknown) 

√ 

Domicile or residence 

Domicile or residence  

Domicile or residence  

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1. MARRIED COUPLES 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of choice 
provided if possible) 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

New  Civil  code 
to be adopted 

Slovenia 

Spain  

EN 

of the spouses 

Common nationality  

Place  where  the  marriage 
was celebrated 

Common 
citizenship 

nationality 

or 

Common habitual residence 
of the spouses 

Closest connection 

√ 

Limited choice 

Nationality 

Domicile or residence 

√ 

Specific rules on matrimonial 
regimes 

Competence  based  on 
domicile or residence  

the 

based 

on 

Competence 
nationality 

(Order unknown) 

53 

EN 

 
  
 
 
 
 
 
 
 
Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

1. MARRIED COUPLES 

Connecting 
order, if known. 

factors 

in  hierarchical 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

Country 

Yes  

(info on limitation of choice 
provided if possible) 

No 

√ 

√ 

Limited choice 

√ 

Lex fori 

(England and Scotland)

Specific rules on matrimonial 
regimes 

Domicile or residence  

Nationality 

(Order unknown) 

Domicile or residence  

√ 

√ 

Slovakia 

Sweden 

UK 

EN 

54 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
2. REGISTERED PARTNERSHIPS 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Yes  

No 

(info on limitation of 
choice provided if 
possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

No 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order,  if 
known. 

Habitual residence 

Place  where 
situated 

the  property 

is 

The 
rules  concerning  property 
issues  would  apply  concerning  the 
liquidation  of  property  of  registered 
partnerships  and  therefore  Czech 
courts  would  be  competent 
for 
proceedings  concerning  immovable 
property located in Czech Republic. 

rules 

Specific 
developed 
partnerships. 

for 

have 

been 
registered 

The  general  and  patrimonial 
effects  and  the  dissolution  of  a 
is 
registered 
governed  by  the  substantive  law 

partnership 

55 

Brussels  I  Regulation;  which  gives 
the  competence  to  the  court  of  the 
domicile of the defendant. Moreover, 
German 
gives 
international competence to German 
courts when the partner is a German 
national, if his/her habitual residence 
is in Germany and if the partnership 

family 

law 

EN 

Country 

Austria 

Belgium 

Czech Republic 

√ 

Denmark 

Finland 

France 

Germany 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2. REGISTERED PARTNERSHIPS 

Choice of law 

Connecting factors 

Choice of jurisdiction (forum) 

Connecting factors 

Country 

Yes  

No 

(info on limitation of 
choice provided if 
possible) 

Connecting  factors  in  hierarchical  order, 
if known. 

No 

of the place of registration. 

Yes 

(info on limitation of choice 
provided if possible) 

Connecting  factors  in  hierarchical  order,  if 
known. 

was  registered  before  a  German 
authority. 

Hungary 

Luxembourg 

Netherlands 

Portugal 

Slovenia 

Sweden 

UK 

EN 

The  law  of  the  State  where  the 
partnership was registered. 

The same rules apply to registered 
partnerships 
for  married 
as 
couples 

√ 

Limited choice  

Competence  based  on 
domicile or residence  

the 

√ 

Competence 
nationality 

(Order unknown) 

based 

on 

56 

EN 

 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX III – Note on Costs / Benefits of policy options 

1. 

NOTE ON COSTS / BENEFITS OF POLICY OPTIONS 

The  purpose  of  this  note  is  to  clarify  the  basis  for  the  estimations  of  the  benefits  that 
would be brought about by the policy options considered in the Impact Assessment Study. 
These  benefits  have  been  expressed  in  monetary  terms  because  this  may  assist  in  the 
Commission’s Impact Assessment process. However, estimating such monetary values is 
difficult  because  the  nature  of  current  problems  are  varied  and  the  problems  occur 
alongside  other  issues  that  need  to  be  addressed  by  married  couples  and  registered 
partnerships  when  forming  a  union,  during  the  union  and  when  unions  are  dissolved 
through divorce or death. 

The  estimates  come  from  the  "Impact  Assessment  Study  on  Community  Instruments 
concerning  matrimonial  property  regimes  and  property  of  unmarried  couples  with 
transnational  elements",  commissioned  by  Directorate-General  Justice,  Freedom  and 
Security  of  the  European  Commission.  It  was  conducted  by  the  European  Policy 
Evaluation  Consortium,  and  the  work  was  led  by  one  of  the  EPEC  partners,  GHK 
Consulting.  External  expertise  was  provided  by  Prof.  Dr.  Rainer  Hausmann.  The 
methodology used is more fully explained in their report, referenced at footnote 6, and is 
summarised here with the aim of highlighting strengths and weaknesses. Fieldwork took 
place from August 2009 to March 2010. Data and assumptions used in the estimates were 
chiefly  based  on  stakeholder  consultation  (e.g.  questionnaires  to  statistical  and  tax 
authorities and legal professionals across EU-27, interviews in case study countries) and 
desk-based research (e.g. Eurostat and legal studies). 

The  approach  to  estimating  the  benefits  has  been  similar  for  both  married  couples  and 
registered partnerships and was as follows: 

1. 

To  identify  the  types  and  estimate  the  numbers  of  couples  affected.  There  are 
three types: international couples (couples made up of citizens from two different 
countries),  couples  living  abroad  and  couples  having  property  abroad.  The 
evidential  basis  for  these  quantitative  estimates  is  good.  Eurostat  and  national 
statistical  offices'  data  provides  the  number  of  new  marriages  and  divorces  per 
annum both in total and indicates around 13% have an international element with 
limited adjustment (see Annex IV and V). This 13% proportion has been applied 
to  data  on  the  stock  of  marriages  to  estimate  "international  couples".  Data  on 
citizens  living  abroad  and  number  of  second  homes  owned  has  been  used  to 
estimate  numbers  of  'married  couples  living  abroad'  and  'married  couples  with 
assets abroad'.   

2. 

To  identify  the  problems  that  might  occur  in  the  current  situation  at  different 
stages of the “couples’ evolution”: getting married (or registering a partnership); 

EN 

57 

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3. 

4. 

5. 

during a marriage (or registered partnership); and, at the dissolution of a marriage 
(or  registered  partnership)  through  divorce/separation  or  death.  The  nature  of 
these  problems  is  clear,  however,  they  vary  considerably  between  individual 
couples and combinations of matrimonial/patrimonial property regimes. 

To  estimate  the  incidence  of  the  key  events  that  might  trigger  problems 
(marriages  or  partnerships  being  registered,  and  the  dissolution  of  marriages  or 
registered partnerships through divorce/separation or death). The evidential basis 
for  these  quantitative  estimates  is  good.  Data  is  available  on  new  international 
divorces and marriages with limited adjustment, see step 1 above. The proportion 
with  an  international  element,  13%,  was  applied  to  an  estimate  of  the  total 
number  of  dissolutions  of  marriage  through  death  each  year  to  predict 
dissolutions of international marriage via death.23 

To estimate the incidence of problems for different types of couples at different 
stages. Unfortunately these estimates are poorly informed by evidence. There are 
no surveys of the different types of couples that could inform these estimates and 
lawyers  and  other  professionals  who  may  deal  with  the  problems  are  not  well 
placed  to  provide  estimates.  However,  the  assumptions  used  in  the  study  are 
consistent with the observations made by stakeholders consulted during the study. 
These  assumptions are discussed further below. 

To  estimate  the  average  costs  of  the  problems  due  to  variations  in  matrimonial 
property  regimes  that  are  encountered  for  different  types  of  couples  at  different 
stages  of  their  unions.  The  difficulty  with  such  estimates  is,  as  stressed  above, 
apportioning  costs 
to 
matrimonial/patrimonial  property  regime  differences,  as  opposed  to  other  costs 
incurred  as  a  result  of  drawing  up  a  marriage  contract,  dealing  with  property 
transactions during unions and the dissolution of unions. However, the estimates 
of average costs used are relatively conservative and reflect the time that should 

the  current  situation  due 

the  problems 

to 

in 

23 The EPEC study found that "Of the estimated 3.0 million marriages in the EU that end 
each  year  through  the  death  of  one  partner,  around  390K  (13%)  are  international 
marriages".  It  says  "Eurostat  data  have  been  exploited  in  order  to  obtain  an  estimated 
aggregate figure on the number of married people who died in one year in the EU27. More 
precisely,  in  2007  the  total  number  of  EU27  population  was  495,305,424  and  the  crude 
marriage rate in the EU27 4.87. In other words, 48.7% of the total EU population (circa 
241,213,741)  was  married  in  2007.  In  order  to  estimate  the  number  of  dissolutions  of 
marriages through the death of one spouse, the following logic has been applied: in 2007 
the  total  number  of  the  EU27  population  was  495,305,424.  The  same  year,  4,783,670 
persons died. The ratio of the number of people who died in 2007 to the population of the 
same year is 0.97%. This result is confirmed by 2008 figures. Applying this ratio to the 
total  number  of  persons  who  were  married  suggests  that  2,363,895  people  who  died  in 
2007  were  married.  It  can  therefore  be  estimated  that  approximately  this  number  of 
marriages were dissolved through death."    

EN 

58 

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be  needed  to  clarify  the  issues  involved  related  to  matrimonial/patrimonial 
property regimes to the satisfaction of interested parties. These  assumptions are  
discussed further below. 

6. 

To calculate the total costs by multiplying the types couples affected at different 
the  stages  of  the  unions  per  annum  by  the  estimated  incidence  per  annum  of 
problems  and  the  estimated  average  costs  of  the  problems.  The  resulting 
monetary  values  are,  in  effect,  the  costs  of  non-Europe  in  matrimonial  or 
patrimonial  property  regimes.  That  is  the  estimated  costs  for  problems  that  are 
due to the current different legal provisions in the Member States. Most of these 
costs  would  accrue  as  fees  to  lawyers.  If  all  EU  countries  shared  the  same 
matrimonial/patrimonial property regime no such costs would occur. 

The results of applying these steps to married couples and those in registered partnerships 
are  shown  in  Table  1  and  Table  2  respectively. Thus  the  tables  indicate  the  scale  of  the 
problems  that  could  be  addressed  by  the  policy  options  in  monetary  terms.  As  stressed 
above, these problems stem from variations in matrimonial/patrimonial property regimes 
across the EU. 

2. 

TABLE 1– THE ESTIMATED COSTS OF PROBLEMS FOR MARRIED COUPLES 

Type of marriage 
affected by MPR 
issues

The stock of 
marriages

International 
marriages

16,000,000

New 
marriages 
per annum
310,000
310,000

3,500,000

1,000,000

Sub total 

Married couples 
living abroad

Sub total 

Married couples 
with assets 
abroad

Sub total 

TOTAL

Dissolutions 
through 
divorces per 
annum 

Dissolutions 
through death 
per annum

137,000

390,000

28,000

8,000

87,500

25,000

Proportion 
of problem 
cases per 
annum
50%
50%
1%
50%
33%

Cost per 
problem, €
50
2,000
1,000
3,000
2,000

1%
50%
33%

1%
50%
33%

1,000
3,000
2,000

1,000
3,000
2,000

Estimated 
cost per 
annum, €
7,750,000
310,000,000
160,000,000
205,500,000
257,400,000
940,650,000
35,000,000
42,000,000
57,750,000
134,750,000
10,000,000
12,000,000
16,500,000
38,500,000

1,113,900,000

EN 

59 

   EN 

 
 
3. 

TABLE  2  –  THE  ESTIMATED  COSTS  OF  PROBLEMS  AFFECTING  REGISTERED 
PARTNERSHIPS  

The stock of 
partnership

New 
partnerships 
per annum
13,000
13,000

Dissolutions 
through 
separations 
per annum 

Dissolutions 
through death 
per annum

36,000

2,800

2,500

2,100

112

100

211

3

3

Type of 
partnership 
affected by MPR 
issues

International 
registered / civil 
partnerships

Sub total 

Civil partners 
living abroad

Sub total 

Civil partners with 
assets abroad

Sub total 

TOTAL

Proportion 
of problem 
cases per 
annum
50%
50%
1%
50%
33%

Cost per 
problem, €
50
2,000
1,000
3,000
2,000

1%
50%
33%

1%
50%
33%

1,000
3,000
2,000

1,000
3,000
2,000

Estimated 
cost per 
annum, €
325,000
13,000,000
360,000
3,150,000
139,260
16,974,260
28,000
168,000
1,848
197,848
25,000
150,000
1,650
176,650

17,348,758

The most crucial assumptions underpinning these estimates concern; the incidence of the 
problem (Step 4) and the average cost of the problem (Step 5). The arguments in support 
of these assumptions are as follows: 

•  For those entering an ‘international’ union the problem may be one of lack of 
awareness that complications might arise in the future. The costs of increasing 
this  awareness  are  likely  to  be  low  (a  matter  of  say  50  euro  per  couple)  and 
this cost can be used as a proxy for the cost of the problem. However, if, for 
example,  the  prospective  spouses  of  the  ‘international  union’  already  have 
significant assets and wish them to remain separate then significant costs may 
be incurred in creating a marriage contract. It is reasonable to assume that 50% 
of all international unions nevertheless need the benefit of the clarity of such a 
contract and that this would cost on average 2,000 euro. The remaining 50% 
experience only a problem of lack of awareness.  

•  For those already in a union the problem may be due to one spouse (aware or 
not of their lack of rights) wishing to dispose of property without the consent 
of  their  partner.  Such  circumstances  will  cause  a  problem  for  the  third  party 
potential  purchaser.  There  may  also,  be  other  ‘daily  management’  problems 
including  the  problem  of  lack  of  knowledge  of  matrimonial/patrimonial 
property  regimes  amongst  interested  parties.  It  is  reasonable  to  assume  that 
such  problems  occur  in  just  1%  of  international  unions  per  annum  and  each 
problem has a notional cost of 1,000 euro. 

•  For  those  international  unions  dissolved  through  divorce  or  separation, 
problems could arise because: the differences in legislation between Member 
States  might  lead  to  parallel  proceedings;  dealing  with  the  assets  may  be 
overly  complex;  and,  decisions  made  by  one  court  may  not  be  accepted  in 
another. The costs of the problem could accrue to courts, the spouses and third 

EN 

60 

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7. 

parties.  As  divorce  settlements  may  be  contested  this  could  add  further 
complications.  It  is  reasonable  to  assume  that  such  problems  might  occur  in 
50%  of  international  divorces  per  annum  and  that  the  average  cost  is  3,000 
euro.  

•  For  those  international  unions  dissolved  through  the  death  of  a  partner,  the 
problems are similar to those arising through divorce or separation. However, 
it is reasonable to assume that the average costs are lower, say 2,000 euro per 
case and that problems will only arise in a minority (say 33%) of cases where 
the value of the assets are relatively high.  

To  estimate  the  proportion  of  the  problems  in  the  current  situation  that  may  be 
eliminated by the policy options. This process involved the consideration of the 
likely effects of the policy options on the different types of problems that affect 
different unions at different stages. Table 3 provides an example of the estimates 
that  have  been  made  of  benefits  (ie  reductions  in  costs)  that  would  accrue  if  a 
specific  policy  option  would  be  adopted  –  in  this  case  Policy  Option  6.  Similar 
tables  have  been  prepared  for  all  of  the  policy  options  concerning  legal 
differences  between  the  Member  States.  The  effects  have  then  been  aggregated 
for  each  policy  option  as  part  of  the  comparative  assessment  of  policy  options. 
The aggregated estimates for each policy option are shown in Tables 4 and 5. As 
none  of  the  policy  options  involve  the  creation  of  a  single  matrimonial  or 
patrimonial  property  regime  in  the  EU  then  some  problems  will  remain.  In  the 
case  of  Policy  Option  6,  the  process  has  led  to  an  estimate  that  68%  of  the 
problem would remain. 

This  process  is  systematic  and  transparent.  Of  course  the  judgements  concerning  the 
reductions in the problems that could occur are open to question. However, the details of 
the individual policy options do allow for more certain judgements of the relative effects 
of each option on each component problem.  

The  process  used  is  whilst  logical  and  transparent  open  to  challenge.  In  particular  the 
estimates of the total costs in the current situation are sensitive to the assumptions on the 
incidence of problems which are the least well informed. However, these assumptions are 
conservative. Also, the following remarks can be made which contribute to the robustness 
of the analysis: 

•  There are a very large number of unions affected or potentially affected by the 

current variations in matrimonial and patrimonial property regimes.  

•  The problems are widespread and various.  

•  The estimated scale of benefits that could accrue through reducing the costs of 
problems  in  the  current  situation  considerably  outweigh  the  costs  of  the 
preferred policy option. 

The  policy  options  have  also  been  carefully  assessed  against  their  contribution  to 
achieving  the  policy  objectives  and  other  criteria  (feasibility,  acceptability  etc.).  The 

EN 

61 

   EN 

 
estimates of monetary benefits should be seen as a complement to the other aspects of the 
assessment process. 

4.  TABLE  3:  POLICY  OPTION  6:  -  DETAILED  ASSESSMENT  OF  COSTS  SAVINGS  COMPARED  TO  THE 

CURRENT SITUATION 

Type  of  marriages 
affected  by  MPR 
issues  

Specification of type of costs 

Costs of current problems 
(million euro) 

Costs savings (proportion & million 
euro): estimates based on analysis of 
the content of the policy option 

(million euro) 

International 
Marriages 

Unawareness of potential problems 

Costs  for  marriage  contract  /  choice  of 
law 

7.8 

310 

One spouse disposing of property under 
community property regime 

160 

Problems at divorce 

Problems at death 

205.5 

257.4 

940.7 

Sub-total 

Married  couples  living 
abroad 

One spouse disposing of property under 
community property regime 

35 

42 

57.8 

134.8 

10 

12 

16,5 

38.5 

Problems at divorce 

Problems at death 

Sub-total 

Married  couples  with 
assets abroad 

One spouse disposing of property under 
community property regime 

Problems at divorce 

Problems at death 

Sub-total 

Ex-ante total costs 

Total 
achieved by the P.O. 

reduction 

Cost 
that 
could not address 

the  P.O. 

45% 

3.5 

10% 

31 

15% 

24 

50% 

102.8 

50% 

128.7 

289.9 

15% 

50% 

5.3 

21 

50% 

28.9 

55.1 

15% 

1.5 

50% 

6 

50% 

8.3 

15.8 

1,113.9 

100% 

1,113.9 

32% 

360.8 

68% 

753.1 

EN 

62 

   EN 

 
  
  
  
  
  
  
  
  
  
  
  
 
5. TABLE 4 – POLICY OPTIONS CONCERNING LEGISLATIVE DIFFERENCES BETWEEN THE MEMBER STATES: FOR MARRIED COUPLES 

AND B.1 COUPLES IN REGISTERED PARTNERSHIPS: 

Estimated reductions of costs (i.e. benefits) pertaining to current problems for each policy option 

Policy  options  concerning  married 
couples 

Total reduction achieved 
by the PO 

Cost that the PO could 
not address 

Costs reductions 
(i.e. benefits); 
million euro 

% 

(million euro) 

Policy 
registered partnerships 

options 

concerning 

Total reduction achieved 
by the PO 

Cost that the PO could 
not address 

Costs 
reductions (i.e. 
benefits); 
million euro 

(million euro) 

Current costs (euro) 

1,114 

1,114 

Current costs (euro) 

17.3 

17.3 

Policy Option.1: Status quo 

Policy Option A.2: Targeted information 
provision 

Policy  Option  3:  Jurisdiction  rules  and 
recognition 

Policy Option 4: Conflict of law (C-O-L) 
rules 

Policy  Option  5  Uniform  option 
marriage proforma 

Policy  Option  6:  Jurisdiction  rules  and 
recognition plus C-O-L rules 

0 

46 

18 

135 

185 

361 

0% 

1,114 

4% 

1,068 

2% 

1,096 

12% 

979 

17% 

929 

32% 

753 

Policy Option 1: Status quo 

Policy  Option 
information provision 

.2: 

Targeted 

Policy  Option  3:  Jurisdiction  rules 
and recognition 

Policy  Option  4:  Conflict  of  law 
(C-O-L) rules 

Policy  Option  6  :  C-O-L  rules  and 
jurisdiction rules 

0 

0.4 

0.2 

1.0 

3.3 

0% 

17.3 

3% 

16.9 

1% 

17.1 

6% 

16.3 

19% 

14.0 

EN 

63 

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6. TABLE 5 – POLICY OPTIONS CONCERNING REGISTERS FOR MATRIMONIAL 

PROPERTY REGIMES (MARRIED COUPLES) AND PATRIMONIAL PROPERTY 
REGIMES (COUPLES IN REGISTERED PARTNERSHIPS). 

Estimated reductions of costs (i.e. benefits) pertaining to current problems 
for each policy option 

Policy options  

Married couples  

Registered partnerships  

Total costs reductions 
(benefits); million euro 

Cost that the 
PO could not 
address 

Total costs reductions 
(benefits); million euro 

Cost that the 
PO could not 
address 

Costs 
reduced 

% 

Costs 
reduced 

% 

Current costs (euro) 

1,114 

17.3 

Policy  Option 
Webpage 

7a: 

16 

Policy  Option 
Database 

7b: 

16 

Policy  Option 
Information campaign 

7c: 

10 

1.5% 

1,098 

0.06  

0.34% 

17.3 

1.5% 

1,098 

0.06 

0.34% 

17.3 

0.9% 

1,104 

0.05 

0.27% 

17.3 

7d: 

Policy  Option 
Compulsory 
establishment 
of 
national  registers  that 
are 
interconnectedPolicy 
Option  A/B.2.5:  EC 
on 
Recommendation 
interconnected  national 
registers 
info 
campaigns 

& 

2824 

2.5%2.2% 

1,0861,090 

0.10.1 

0.61%0.57% 

17.217.2 

EN 

64 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
•   

EN 

65 

   EN 

 
ANNEX IV – Data on marriages: International marriages in EU 

1. 

NUMBER OF MARRIAGES IN THE EU MEMBER STATES (2007) 

Marriages in 2007

Austria
Belgium
Bulgaria
Czech Republic
Cyprus
Denm ark
Estonia
Finland
France
Germ any 
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxem bourg
Malta
Netherlands
Poland
Portugal 
Rom ania
Slovakia
Slovenia
Spain 
Sw eden 
UK

Total m arriages
1%
2%
1%
2%
1%
2%
0%
1%
11%
15%
3%
2%
1%
10%
1%
1%
0%
0%
3%
10%
2%
8%
1%
0%
9%
2%
11%

35,996
45,561
29,640
57,157
13,422
36,576
7,022
29,497
273,833
368,922
61,377
40,842
22,544
250,360
15,486
23,065
1,969
2,479
72,485
248,777
46,329
189,240
27,437
6,373
208,057
47,898
268,386

National
27,689
35,110
27,227
52,188
3,532
30,821
4,536
27,050
228,864
318,082
53,952
38,990
19,096
215,801
14,579
20,339
837
1,582
61,848
244,732
39,648
183,803
23,778
5,299
173,834
38,043
232,154

1%
2%
1%
2%
0%
1%
0%
1%
11%
15%
3%
2%
1%
10%
1%
1%
0%
0%
3%
12%
2%
9%
1%
0%
8%
2%
11%

International 
3%
3%
1%
2%
3%
2%
1%
1%
15%
17%
2%
1%
1%
11%
0%
1%
0%
0%
3%
1%
2%
2%
1%
0%
11%
3%
12%

8,295
10,451
2,413
4,969
9,890
5,753
2,486
2,447
44,969
50,840
7,425
1,852
3,448
34,559
907
2,726
1,132
881
10,637
4,045
6,681
5,437
3,659
946
34,223
9,855
36,232

Total

2,430,730 100% 2,123,414

87% 307,158

13%

Source and notes:
Eurostat; International marriages and divorces in the Member States and National Statistical Offices
*International marriages include "unknow n marriages" for: AT (12), DK (2), Malta (16), Slovenia (128). 
2007 data for the UK has been estimated from the total number of new  marriages for the period 2000-2006
2007 data on new  international marriages for Ireland has been estimated by using 2006 census on marriages

EN 

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2. 

PROPORTION  OF  INTERNATIONAL  MARRIAGES  IN  THE  EU  (2000  TO  2007;  12 
COUNTRIES)24 

11.7%

12.9%

13.9%

14.8%

15.0%

14.7%

14.4%

13.5%

88.3%

87.1%

86.1%

85.2%

85.0%

85.3%

85.6%

86.5%

2000

2001

2002

2003

2004

2005

2006

2007

National Total

International Total

24 

These  are:  Belgium,  Cyprus,  Czech  Republic,  Denmark,  Estonia,  Germany,  Hungary, 
Luxembourg, Malta, Slovakia, Slovenia and Spain.  

EN 

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3. 

NUMBERS  OF  DIFFERENT  TYPES  OF  INTERNATIONAL  MARRIAGES  IN  EU  IN 
2007.  

Total 
international 
m arriages
8,295
10,451
2,413
4,969
9,890
5,753
2,486
2,447
44,969
50,840
7,425
1,852
3,448
34,559
907
2,726
1,132
881
10,637
4,045
6,681
5,437
3,659
946
34,223
9,855
36,232

100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%

Austria
Belgium
Bulgaria
Czech Republic
Cyprus
Denm ark
Estonia
Finland
France
Germ any 
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxem bourg
Malta
Netherlands
Poland
Portugal 
Rom ania
Slovakia
Slovenia
Spain 
Sw eden 
UK

International Marriages in 2007

Marriages betw een 
a national and 
another EU27 
national

Marriages betw een a 
national and a third 
country national

2,858
3,217
973
2,658
72
1,004
159
706
7,629
17,747
1,638
1,046
1,142
8,640
242
1,001
409
88
2,421
1,639
576
1,884
2,653
133
5,219
1,965
12,681

34%
31%
40%
53%
1%
17%
6%
29%
17%
35%
22%
56%
33%
25%
27%
37%
36%
10%
23%
41%
9%
35%
73%
14%
15%
20%
35%

3,664
4,908
1,417
2,127
1,090
1,459
620
1,210
29,004
25,794
2,497
678
1,081
15,552
630
1,683
166
185
2,753
2,317
5,101
3,323
1,004
802
20,835
2,610
16,304

44%
47%
59%
43%
11%
25%
25%
49%
64%
51%
34%
37%
31%
45%
69%
62%
15%
21%
26%
57%
76%
61%
27%
85%
61%
26%
45%

Marriages 
betw een foreign 
nationals
1,746
2,202
6
184
7,554
1,792
800
500
8,311
7,299
3,273
123
790
8,699
24
23
557
588
1,557
85
1,003
0
2
11
8,169
2,153
7,246

21%
21%
0%
4%
76%
31%
32%
20%
18%
14%
44%
7%
23%
25%
3%
1%
49%
67%
15%
2%
15%
0%
0%
1%
24%
22%
20%

Other/unknow n 
international 
m arriages

27
72
17
0
647
1,498
907
31
25
0
17
5
435
1,668
11
19
0
20
3,906
4
1
230
0
0
0
3,127
0

0%
1%
1%
0%
7%
26%
36%
1%
0%
0%
0%
0%
13%
5%
1%
1%
0%
2%
37%
0%
0%
4%
0%
0%
0%
32%
0%

Total

307,158

100%

80,400

26%

148,814

48%

64,697

21% 12,667

4%

Notes and source:
National statistical offices and Eurostat
Data for IE have been estimated according to 2006 census
Data for IT have been estimated basing on marriage statistics w ith national / international breakdow n
Data for the UK have been calculated from 2006 aggregate data + information from ONS and by applying the average ratio for international marriages

4. 

NUMBER OF NATIONAL AND INTERNATIONAL MARRIAGES IN THE EU (2000 TO 
2007; 20 COUNTRIES) 

s
e
g
a

i
r
r
a
m

l

a
t
o
T

1,880,000

1,860,000

1,840,000

1,820,000

1,800,000

1,780,000

1,760,000

1,740,000

1,720,000

1,700,000

1,680,000

258,351

264,947 258,702

300,000

1,852,717

246,077

226,950

216,995

250,510

241,224

250,000

200,000

1,782,414

150,000

I

n
t
e
r
n
a
t
i
o
n
a

l

m
a
r
r
i

a
g
e
s

1,766,193

1,763,786

1,757,764

1,747,065

1,759,130

1,741,578

100,000

50,000

0

2000

2001

2002

2003

2004

2005

2006

2007

Total

International Total

EN 

68 

   EN 

 
 
 
 
 
Note: The left axis of the graph provides the figures for the total number of marriages, 
while  the  figures  relating  to  the  number  of  international  marriages  are  provided  on  the 
secondary axis. 

EN 

69 

   EN 

 
ANNEX V – Data on divorces: divorces in EU in 2007 

1. 

DIVORCES IN THE EU MEMBER STATES (2007) 

Divorces in 2007

Total divorces

Austria
Belgium
Bulgaria
Czech Republic
Cyprus
Denm ark
Estonia
Finland
France
Germ any 
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxem bourg
Malta
Netherlands
Poland
Portugal 
Rom ania
Slovakia
Slovenia
Spain 
Sw eden 
UK

20,516
29,881
16,347
31,129
1,648
14,066
3,809
13,224
152,954
187,072
13,500
25,160
3,684
49,003
7,403
11,336
1,106
0
31,983
66,586
25,255
36,308
12,174
2,617
125,777
20,669
144,220

National

5,111
5,535
691
2,151
694
2,337
1,311
1,405

2% 15,390
3% 24,546
2% 15,656
3% 28,978
0%
954
1% 11,728
0%
2,483
1% 11,819

International
4%
2%
4%
3%
1%
2%
2%
3%
1%
0%
2%
1%
1%
0%
1%
1%
15% 132,611 15% 20,343 15%
18% 152,972 17% 34,100 25%
1%
1%
0%
3%
1%
0%
2%
5%
1%
1%
1%
1%
0%
0%
0%
0%
4%
3%
6%
6%
1%
3%
0%
4%
0%
1%
0%
0%
12% 111,472 12% 14,305 10%
4%
2%
14% 124,750 14% 19,470 14%

1% 11,678
2% 24,649
0%
2,689
5% 47,536
1%
6,418
1% 10,579
574
0%
0%
0
3% 26,269
6% 57,730
2% 23,915
3% 35,900
1% 11,918
2,343
0%

1,823
511
995
3,133
985
753
532
0
5,714
8,856
1,235
408
256
269

2% 15,019

5,650

Total

1,047,427 100% 910,577 87% 136,850 13%

Source and notes:
Eurostat; International marriages and divorces in the Member States and National Statistical Offices
2007 data on new  international marriages for Ireland has been estimated by using 2006 census 
Data for FR, GR, LV, PL and the UK have been estimated by using 13.5% for international divorces
13.5% is the average share of international divorces in total for the period 2003-2006

EN 

70 

   EN 

 
 
2. 

PROPORTION  OF  NATIONAL  AND  INTERNATIONAL  DIVORCES  IN  THE EU (2000 
TO 2007; 15 COUNTRIES). 

11.4%

11.6%

11.7%

12.0%

12.5%

12.9%

13.4%

13.3%

88.6%

88.4%

88.3%

88.0%

87.5%

87.1%

86.6%

86.7%

2000

2001

2002

2003

2004

2005

2006

2007

National Total

International Total

3. 

INTERNATIONAL DIVORCES IN 2007 

International Divorces in 2007

Total 
international 
divorces

Divorces betw een 
a national and 
another EU27 
national

Divorces betw een a 
national and a third 
country national

Other/unknow n 
international 
divorces

Austria
Bulgaria
Czech Republic
Cyprus
Denm ark
Estonia
Finland
Germ any 
Hungary
Lithuania
Luxem bourg
Malta
Netherlands
Portugal 
Rom ania
Slovakia
Slovenia
Sw eden 

Total

5,111
691
2,151
694
2,337
1,311
1,405
34,100
511
753
532
0
5,714
1,235
408
256
269
5,650

63,128

100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
100%
0%
100%
100%
100%
100%
100%
100%

1,226
199
694
170
493
44
271
1,328
298
192
172
0
736
204
181
139
15
724

7,086

24%
29%
32%
24%
21%
3%
19%
4%
58%
25%
32%
0%
13%
17%
44%
54%
6%
13%

3,224
492
1,344
95
1,038
290
711
3,463
186
459
69
0
1,518
839
168
112
136
2,411

63%
71%
62%
14%
44%
22%
51%
10%
36%
61%
13%
0%
27%
68%
41%
44%
51%
43%

Divorces 
betw een foreign 
nationals
613
0
113
160
628
503
271
7,965
25
24
291
0
890
177
9
5
0
1,389

48
12%
0
0%
0
5%
148
23%
178
27%
474
38%
19%
152
23% 21,344
2
78
0
0
2,570
15
50
0
118
1,126

5%
3%
55%
0%
16%
14%
2%
2%
0%
25%

1%
0%
0%
21%
8%
36%
11%
63%
0%
10%
0%
0%
45%
1%
12%
0%
44%
20%

16,555

13,063

26,303

Notes and source:
National statistical offices and Eurostat
* Member States for w hich there is no breakdow n data available are excluded. 
These countries are: Belgium, France, Greece, Ireland, Italy, Latvia, Poland, Spain and the UK.  

EN 

71 

   EN 

 
 
 
4. 

NUMBER  OF  DIVORCES  AND  INTERNATIONAL  DIVORCES  IN  THE  EU  (2000  TO 
2007; 16 COUNTRIES) 

61,055

63,879 67,275

67,579

68,851

69,016

531,461 537,145

522,698

522,621

516,864

513,528

s
rce
ivo
tal d
To

550,000

540,000

530,000

56,181

58,906

520,000

510,000

500,000

490,000

480,000

470,000

506,532

493,419

80,000

70,000

60,000

50,000

40,000

30,000

20,000

10,000

0

In
te
rn
atio
n
al d
ivo
rce
s

2000

2001

2002

2003

2004

2005

2006

2007

Total

International Total

EN 

72 

   EN 

 
 
ANNEX VI – Data on registered partnerships  

1. 

MAGNITUDE  OF 
INTERNATIONAL PROPERTY REGIMES OF REGISTERED PARTNERSHIPS 

INTERNATIONAL  REGISTERED 

PARTNERSHIPS  AND 

This table indicates the number of registration of new civil / registered partnerships for 
seven countries (of the eleven countries in which such partnerships existed by the end of 
2009) for the period 2000-2009. 

Number of civil / registered partnerships 

Country 

2000 

2001 

2002 

2003 

2004 

2005 

2006 

2007 

2008 

2009 

Denmark 

Finland 

446 

190 

186 

200 

191 

213 

249 

6,433 

6,900 

France 

15,935 

15,435 

20,588 

25,819 

33,147 

52,800  64,271 

95,708 

141,099 

Netherlands 

2,922 

3,377 

8,321 

10,119 

11,156 

11,307 

10,801 

10,550  10,93925 

Slovenia26 

8 

8 

2 

Sweden 

1,788 

2,066 

2,408 

2,803 

3,259 

3,730 

4,188 

4,649 

5,294 

UK 

3,906 

32,212 

17,456 

14,338 

25 

26 

In  order  to  find  an  aggregate  data  for  2008,  this  figure  has  been  extrapolated  by  using  the  data 
2003-2007. 
Although both same-sex and opposite-sex civil / registered partnership exist in Slovenia, data for 
Slovenia covers same-sex civil partnership only. 

EN 

73 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
2. 

NUMBER OF NEW CIVIL / REGISTERED PARTNERSHIPS BY YEAR (TRENDS) 

12,000

10,000

8,000

6,000

4,000

2,000

0

160,000

140,000

120,000

100,000

80,000

60,000

40,000

20,000

0

2000

2001

2002

2003

2004

2005

2006

2007

2008

Finland

Netherlands

Sweden

France

Note: The plot line for France is on the secondary axis, while for other countries the plot 
lines are on the primary axis.  

3. 

NUMBER OF NEW PACS (FRENCH REGISTERED PARTNERSHIPS) IN FRANCE 

year 

Total 

man-
man 

Woman-
woman 

Man-
woman 

Non 
determined Dissolutions 

1999  6 139 

2000  22 108 

2001  19 410 

2002  24 979 

2003  31 161 

2004  39 576 

2005  59 837 

2006  76 680 

7 

620 

1 859 

3 143 

5 229 

6 935 

8 595 

9 470 

2007  101 045 

3 665 

2 485 

94 797 

98 22 553 

2008  144 730 

4 742 

3 399 

136 582 

7 23 299 

EN 

74 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4. 

THE STOCK OF REGISTERED PARTNERSHIP IN FINLAND (2002-2008): 

100%
98%
96%
94%
92%
90%
88%
86%
84%
82%
80%

34

365

58

74

94

113

139

149

488

608

734

835

950

1,095

2002

2003

2004

2005

2006

2007

2008

Number of national registered partnerships

Number of international registered partnerships

5. 

NUMBER OF NEW REGISTERED PARTNERSHIPS IN FINLAND (2002-2008): 

500

400

300

200

100

0

446

399

155

190

152

186

163

200

149

191

166

249

213

203

47

35

34

37

42

47

46

2002

2003

2004

2005

2006

2007

2008

New national registered partnerships

New international registered partnerships

New registered partnerships

6. 

NUMBER  OF  DISSOLUTIONS  OF  NATIONAL  AND  INTERNATIONAL  REGISTERED 
PARTNERSHIPS, AND THE REASONS FOR THESE 

As  with  married  couples,  data  have  been  collected  concerning  the  dissolution  of 
registered  partnerships  through  separation,  death  and  regime  alterations,  leading  to  a 
division of property.  

Separation: Data have been collected from Eurostat, national statistics offices and legal 
professionals.  Relevant  data  have  been  collected  only  for  Finland.  Tables  3.4  and  3.5 
present data on the separation of registered partnerships in Finland (with a country group 
breakdown). According to these figures, while the total number of separations increased 

EN 

75 

   EN 

 
 
 
sharply in 2007 to then diminish again in 2008, there has been a steady increase in the 
proportion of international dissolutions.  

7. 

SEPARATIONS OF REGISTERED PARTNERSHIPS IN FINLAND (2001-2008) 

2001 :
2002 :
2003 :
2004
2005
2006
2007
2008

National
:
:
:

International
:
:
:

:
:
:

19
23
23
54
30

83%
74%
77%
81%
67%

4
8
7
13
15

17%
26%
23%
19%
33%

Total
:

:

2
7
23
31
30
67
45

100%
100%
100%
100%
100%
100%
100%

International  separations  between  Finnish  nationals  and  non-EU  nationals  are  more 
common than between Finnish nationals and other EU nationals. 

8. 

SEPARATIONS  OF  INTERNATIONAL  REGISTERED  PARTNERSHIPS  BY  COUNTRY 
GROUP IN FINLAND (2004-2008) 

Between 
nationals and 
EU nationals
0
0%
25%
2
0%
0
0
0%
27%
4

2004
2005
2006
2007
2008

Between 
nationals and 
non EU 
nationals

4 100%
5
63%
7 100%
92%
67%

12
10

Between two 
other EU 
nationals
0
0
0
0
0

0%
0%
0%
0%
0%

Between two 
non EU 
nationals
0
1
0
1
1

0%
13%
0%
8%
7%

Total
4
8
7
13
15

EN 

76 

   EN