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
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 
COM(2011) 125 final 

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  

{COM(2011) 126 final} 
{COM(2011) 127 final} 
{SEC(2011) 327 final} 
{SEC(2011) 328 final} 

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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  

1. 

INTRODUCTION 

The  main  purpose  of  creating  a  European  judicial  area  is  to  offer  European  citizens  legal 
certainty and ease of access to justice in any cross-border situation they may find themselves 
in. Various instruments have been adopted by the European Union with this goal in mind. 

However,  as  shown  in  the  2010  EU  Citizenship  Report  presented  by  the  Commission  on 
27 October 20101, many obstacles remain that impede the full exercise of Union citizenship 
rights,  in  particular  the  right  to  free  movement.  Among  the  obstacles  identified  by  the 
Commission  was  the  uncertainty  surrounding  the  property  rights  of  international  couples 
made up, inter alia, of nationals of different Member States or living in a Member State other 
than their State of origin.  

Of the approximately 122 million marriages in the EU, around 16 million (13%) have such a 
cross-border dimension. Of 2.4 million marriages celebrated in the EU in 2007, about 300 000 
fell into this category. So did 140 000 (13%) of the 1 040 000 divorces that took place in the 
EU in the same year. In addition, 8 500 international couples in registered partnerships were 
dissolved by separation and 1 266 were ended by the death of one of the partners. 

The  differences  between  national  legal  systems  often  produce  unexpected  and  sometimes 
unwelcome consequences for international couples when it comes to the management of their 
property.  

When  a  union  is  dissolved  by  divorce,  separation  or  the  death  of  one  of  the  partners,  the 
couple or the surviving partner faces many difficulties, including the division of the property 
acquired during their life together, as shown by the following example: 

A Greek-Hungarian couple marry in Greece and live there together for three years. 
They then decide to go and live in Hungary. After two years in Hungary the marriage 
breaks  up.  According  to  the  conflict-of-law  rule  that  applies  in  Greece,  the 
liquidation of the matrimonial property is subject to Greek law (the connecting factor 
that decides the law that applies is the common habitual residence of the spouses at 
the  time  of  their  marriage).  According  to  the  Hungarian  conflict-of-law  rule, 
however,  it  is  Hungarian  law  which  governs  the  liquidation  of  the  marriage  (the 
connecting factor being the common habitual residence of the spouses at the time of 
their divorce). 

How to establish jurisdiction in such a case? The couple have lived in both Greece 
and  Hungary.  Should  the  Greek  courts  or  the  Hungarian  courts  deal  with  the 
liquidation of the matrimonial property? 

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EU Citizenship Report 2010: Dismantling the obstacles to EU citizens' rights, COM(2010) 603. 

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In  this  example,  if  the  Hungarian  husband  believes  that  Hungarian  law  might  be 
more advantageous because it will better protect his interests, he may rush to bring 
an action in the Hungarian courts. This is called 'rush to court'. So, under the current 
rules, the better informed spouse can initiate proceedings and put the other spouse at 
a disadvantage. 

Currently,  the  rules  applicable  to  the  property  relationships  of  international  couples  fail  to 
prevent such situations and do not provide the legal certainty necessary for the management 
and division of couples' property.  

2. 

LEGAL FRAMEWORK 

The  Union  is  currently  formulating  a  policy  to  make  life  easier  for  citizens,  particularly 
international couples, in cross-border situations.  

A number of instruments dealing with private international law in the area of family law have 
been adopted, including the Brussels IIa Regulation of 27 November 20032 and the Rome III 
Regulation of 20 December 20103.  

When  an  international  couple  decides  to  divorce  or  separate,  the  Brussels  IIa  rules  enable 
them to identify which court has jurisdiction to rule on their divorce, and how the decision on 
the dissolution of their union can 'move' from one Member State to another and be recognised 
and enforced in a Member State other than the State where the decision was delivered. 

The  Rome  III  Regulation  supplements  these  rules  by  offering  spouses  the  possibility  of 
choosing the law applicable to their divorce proceedings. This Regulation is the outcome of 
enhanced  cooperation  on  the  law  applicable  to  divorce4,  which  was  the  first  example  of 
enhanced judicial cooperation. 

These  instruments  provide  legal  certainty,  predictability  and  greater  flexibility  for  spouses 
engaged  in  divorce  and  legal  separation  proceedings.  They  are  used  to  determine  the 
applicable law and the court with jurisdiction on the basis of objective criteria.  

But  nothing  in  these  instruments  covers  issues  of  private  international  law  relating  to  the 
property relationships of international couples.  

The  same  is  true  of  the  proposal  for  a  Regulation  on  successions,  which  is  currently  being 
negotiated5. The objective of that proposal is to enable people living in the European Union to 
organise  their  succession  in  advance  and  to  effectively  guarantee  the  rights  of  heirs  and  of 
other persons linked to the deceased and of creditors of the estate. However, it does not cover 
the property aspects of marriage and registered partnerships.  

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Council  Regulation  (EC)  No  2201/2003  of  27  November  2003  concerning  jurisdiction  and  the 
recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  the  matters  of  parental 
responsibility, repealing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003. 
Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in 
the area of the law applicable to divorce and legal separation.  
This  enhanced  cooperation  has  involved  14  Member  States:  Austria,  Belgium,  Bulgaria,  France, 
Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. 
Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, 
recognition  and  enforcement  of  decisions  and  authentic  instruments  in  matters  of  succession  and  the 
creation of a European Certificate of Succession, COM(2009) 154. 

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3. 

PROPERTY ASPECTS: THE REASON FOR ACTING NOW  

Recently, in the  Stockholm Programme (An open and secure Europe serving and protecting 
citizens6),  the  European  Council  asked  that  mutual  recognition  be  extended  to  areas  crucial 
for the daily lives of citizens. Issues relating to matrimonial property regimes and the property 
consequences of the separation of couples are explicitly included among them7.  

Furthermore,  the  European  Parliament  has  backed  a  Commission  initiative  on  matrimonial 
property regimes8, stressing that the priorities in the field of civil justice should be to fulfil the 
needs of citizens by simplifying judicial machinery and introducing simpler, more transparent 
and more accessible procedures. 

In  July  2006  the  Commission  adopted  a  Green  Paper  on  the  conflict  of  laws  in  matters  of 
matrimonial property regimes9, including jurisdiction and mutual recognition. This launched 
wide-ranging  public  consultations,  the  results  of  which  confirmed  the  need  for  European 
legislation,  both  for  matrimonial  property  regimes  and  the  property  consequences  of 
registered partnerships. 

The Commission considers that if the expectations of citizens are to be fully met the time has 
come to supplement the existing legal framework with provisions on property relationships. 
This is why, in accordance with the undertaking it made in the 2010 Citizenship Report, it is 
presenting  proposals  to  offer  clear  European  answers  to  the  problems  experienced  by 
international couples in these areas.  

4. 

A PRIVATE INTERNATIONAL LAW APPROACH FOR CITIZENS 

The management of spouses' property during their life together and when the union between 
them comes to an end is governed by the national laws of the Member States.  

The  substantive  law  of  matrimonial  property  regimes  varies  from  one  Member  State  to 
another, although most Member States draw a distinction between legal matrimonial regimes, 
on one hand, and contractually agreed regimes, on the other. The legal regime is the one that 
will be applied if the spouses do not opt for any other arrangement. Where the spouses make a 
choice, this is referred to as a contractually agreed regime.  

Whether  property  owned  or  acquired  by  the  spouses  belongs  to  both  of  them  jointly  is 
determined  by  the  rules  of  the  matrimonial  regime  to  be  applied.  In  the  community-of-
property system some or all of the property owned or acquired by a spouse becomes common 
property and belongs to both spouses, whereas in the separation-of-property system, property 

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OJ C 115, 4.5.2010. 
In 1998 these issues were referred to in the Vienna Action Plan (OJ C 19, 23.1.1999), and two years 
later in the programme for mutual recognition of decisions in civil and commercial matters (OJ C 12, 
15.1.2001). 
European Parliament Resolution of 25 November 2009 on the communication from the Commission to 
the European Parliament and the Council - An area of freedom, security and justice serving the citizen - 
Stockholm  Programme;  European  Parliament  Resolution  of  23  November  2010  on  civil  law, 
commercial law, family law and private international law aspects of the Action Plan Implementing the 
Stockholm Programme. 
Green  Paper  on  conflict  of  laws  in  matters  concerning  matrimonial  property  regimes,  including  the 
question of jurisdiction and mutual recognition, COM(2006) 400 and SEC(2006) 952. 

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belongs to one or other of the spouses. These are general principles, which operate in different 
ways in the laws of the Member States. 

There is a registered partnership where two people live as a couple and have registered their 
union with a public authority of their Member State of residence. This is a recent institution, 
which  is  currently  recognised  in  law  in  14  Member  States10.  Like  marriage,  a  registered 
partnership  has  effects  on  the  property  relationship  of  the  partners,  which  are  governed  by 
national law. Differences between national laws are even more pronounced here than in the 
case of matrimonial property regimes.  

Like  substantive  law  on  the  property  rights  of  international  couples,  the  national  rules  of 
private international law applied to the matter vary greatly from one Member State to another. 
This situation does not offer sufficient legal security to couples who have decided to exercise 
their right to free movement.  

Given  these  differences,  to  offer  citizens  all  the  legal  certainty  they  need  there  are  three 
approaches that could be envisaged at European level: 

–  One,  which  is  already  followed  in  practice,  is  to  leave  it  to  the  Member  States  to  find 
solutions within the framework of bilateral agreements. The Franco-German agreement of 
February 2010 is an example of this approach11. But even when open to accession by other 
Member States (as the Franco-German agreement is), such agreements cannot deal with all 
the  practical  problems  that  arise  nor,  consequently,  provide  a  comprehensive  European 
response. 

–  Another  approach  would  be  to  harmonise  the  substantive  law  governing  the  property 
consequences of marriage and registered partnerships. However, this approach is excluded 
by  the  Treaty,  which  do  not  endow  the  Union  with  powers  in  these  areas,  nor  indeed  as 
regards the forms of union that give rise to the property relationships, namely marriage and 
registered partnerships. 

–  A  third  approach,  which  is  possible  under  the  Treaty,  is  to  adopt  rules  of  private 
international  law  at  European  level  covering  the  property  consequences  of  marriage  and 
registered partnerships. 

For  this  reason,  as  it  promised  in  the  Action  Plan  Implementing  the  Stockholm  Programme 
that it approved on 20 April 201012, the Commission is proposing the following initiatives: 

–  a  proposal  for  a  Council  Regulation  on  jurisdiction,  applicable  law  and  the 
recognition  and  enforcement  of  decisions  in  matters  of  matrimonial  property 
regimes; 

–  a  proposal  for  a  Council  Regulation  on  jurisdiction,  applicable  law  and  the 
recognition  and  enforcement  of  decisions  on  the  property  consequences  of 
registered partnerships. 

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Austria,  Belgium,  the  Czech  Republic,  Denmark,  Germany,  Finland,  France,  Hungary,  Ireland, 
Luxembourg, Netherlands, Slovenia, Sweden and the United Kingdom. 
A  bilateral  agreement  concluded  between  Germany  and  France  in  February  2010  establishing  an 
optional matrimonial property regime with sharing of acquired property. 
COM(2010) 171. 

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Although  the  two  proposals  are  very  similar  in  structure  and  in  content,  the  Commission 
believes  it  will  be  easier  to  deal  with  the  specific  features  of  each  type  of  union  in  two 
separate  pieces  of  legislation  rather  than  one  covering  both.  Across  the  EU  marriage  and 
registered partnership are different legal institutions. Marriage is a long-established institution 
that  exists  in  all  27 Member States,  whereas  the  registered  partnership  is  a  more  recent 
institution  that  exists  in  only  14 Member States,  as  mentioned  earlier.  Some  of  the  legal 
arrangements proposed for the two institutions will inevitably differ. 

Because  both  marriage  and  registered  partnerships  may  or  may  not  be  open  to  opposite-sex 
couples or to same-sex couples, depending on the Member State, the two proposals are gender 
neutral13. While the objective of giving a clear legal answer to the problems experienced by 
international couples in this area is the same, presenting two separate instruments will ensure 
that the rules governing each institution are clear, and more easily comprehensible to citizens 
and professionals alike.  

In view of their close links, the two proposals are being presented together, as a package, to 
underline the Commission's determination to facilitate the daily lives of international couples 
regardless  of  whether  they  have  entered  into  a  marriage  or  a  registered  partnership.  The 
Commission calls on the Council to follow this comprehensive approach. 

Both  proposals  are  fiscally  neutral  and  will  not  entail  any  changes  in  the  Member  States' 
national tax laws. 

5. 

RESPECT FOR FUNDAMENTAL RIGHTS 

In  accordance  with  the  strategy  for  the  effective  implementation  of  the  Charter  of 
Fundamental  Rights  by  the  European  Union14,  the  Commission  has  checked  that  the  two 
proposals comply with the rights set out in the Charter. 

They do not affect the right to respect for private and family life nor the right to marry and to 
found a family according to national laws, as provided for in Articles 7 and 9 of the Charter.  

The  right  to  property  referred  to  in  Article  17  of  the  Charter  is  strengthened.  The 
predictability of the law applicable to all the couple's property will in fact enable spouses and 
partners to exercise their property rights more effectively.  

The Commission has also checked that the proposals comply with Article 21, which prohibits 
any discrimination, and has therefore made certain that the two proposals are gender neutral. 
Thus the Commission does not differentiate on the basis of sexual orientation.  

Finally,  the  proposal  would  increase  citizens'  access  to  justice  in  the  EU,  in  particular  for 
married couples and registered partnerships. It will facilitate implementation of Article 47 of 
the Charter of Fundamental Rights, which guarantees the right to an effective remedy and to a 

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Under  the  proposal  dealing  with  matrimonial  property  regimes,  for  example,  a  same-sex  marriage 
allowed by Portuguese law will be treated in the same way as an opposite-sex marriage. A partnership 
registered in France may be between persons of the opposite sex or persons of the same sex, and both 
kinds  of  partnership  will  be  covered  by  the  proposal  on  the  property  consequences  of  registered 
partnerships.  
Communication from the Commission, COM(2010) 573 of 19.10.2010. 

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fair trial. By setting out objective criteria for establishing the courts with jurisdiction, parallel 
proceedings and appeals precipitated by the most active party can be avoided. 

6. 

SUBSTANCE OF THE PROPOSALS  

The Commission's proposals set out to answer the following questions: 

•  Which court has jurisdiction over the liquidation of a matrimonial property regime or the 

property consequences of a registered partnership? 

•  Which law is applicable to this liquidation? 

•  Is  the  decision  of  the  court  or  other  competent  authority  of  a  Member  States  easily 

recognised and enforced in another Member State? 

6.1. 

Determining  the  court  with  jurisdiction:  centralisation  of  procedures  and 
consistency with the existing European Union law 

The  proposed  Regulations  would  establish  which  court  has  jurisdiction  to  liquidate  a 
matrimonial  property  regime  or  the  property  consequences  of  a  registered  partnership.  The 
Commission proposes that a single court should handle a divorce or legal separation and the 
consequent liquidation of the matrimonial property regime.  

Consistency  is  sought  with  the  existing  or  proposed  European  rules  on  jurisdiction  in  other 
Union legislative instruments.  

The  courts  with  jurisdiction  to  rule  on  divorce  or  legal  separation  proceedings  under  the 
Brussels  IIa  Regulation  already  referred  to  would  have  their  jurisdiction  extended  to  the 
liquidation of the matrimonial property regime as a result of a divorce or legal separation. 

Similarly,  if  one  of  the  spouses  or  partners  dies,  the  court  with  jurisdiction  over  the 
succession15 would have its jurisdiction extended to matters of matrimonial property regimes 
and the property consequences of partnerships.  

Grouping proceedings before a single court will represent a substantial saving, which can be 
estimated  at  between  €2 000  and  €3 000  per  case.  Citizens  will  not  have  to  petition  in  a 
number  of  different  jurisdictions  depending  on  the  particular  matter  at  issue,  such  as 
liquidation of an estate or division of property on dissolution of a registered partnership by a 
death.  

6.2. 

Determining the applicable law: spouses given the option to choose 

Different approaches are proposed for marriage and for registered partnerships because of the 
specific features of each institution. 

Married spouses are given the option of choosing the applicable law. Their choice is limited, 
however,  to  prevent  them  from  choosing  a  law  with  no  connection  to  their  marriage.  The 
choice  is  between  the  law  of  their  common  habitual  residence  or  that  of  their  country  of 

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In accordance with the instrument under negotiation. 

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nationality. The proposal also contains a list of connecting factors to identify the applicable 
law in cases where no law has been chosen. 

These  solutions  take  into  account  the  mobility  of  citizens  and  respect  the  free  will  of  the 
spouses, while providing legal certainty for each. If they change their habitual residence from 
one Member State to another, the spouses may, for example, easily change the law applicable 
to their matrimonial property regime. This is also the approach adopted in the recent Rome III 
Regulation on the law applicable to divorce and legal separation.  

The same freedom is not however proposed for registered partners. The law applicable to the 
property  consequences  of  registered  partnerships  is  clearly  defined  in  the  proposal.  It  is  the 
law of the State where the partnership was registered. Given that registered partnerships are 
not  recognised  in  all  EU  Member  States  and  there  are  many  differences  in  the  laws  of 
Member  States  which  have  introduced  this  institution  into  their  legal  system,  the  proposal 
would apply the law of registration.  

This rule will, however, have the advantage of making it clearer which law applies to a couple 
in a registered partnership and what the possible property consequences might be in the event 
of their separation.  

The Commission will inform the public of the legislation and national procedures relevant to 
matrimonial regimes and the property consequences of registered partnerships by appropriate 
means, in particular via the website of the European Judicial Network in civil and commercial 
matters. It will do the same for national rules on effects in respect of third parties.  

6.3. 

Recognition and enforcement of decisions: faster movement and enforcement of 
decisions in the Union 

The  proposed  provisions  on  recognition  and  enforcement  of  decisions  and  instruments  are 
similar  to  those  of  the  draft  Regulation  on  successions16.  These  in  turn  are  aligned  on  the 
existing provisions for civil and commercial matters17. 

They are designed to ensure the free movement of decisions within the EU and their effective 
enforcement,  whereas  at  present  each  Member  State  has  its  own  national  rules  for  the 
recognition and enforcement of decisions on these matters.  

These  proposals  are  the  first  measures  proposed  at  EU  level  concerning  the  property 
relationships  of  international  couples.  They  cover  matters  which  are  part  of  family  law. 
According  to  the  Treaty  on  the  Functioning  of  the  European  Union,  measures  which  affect 
family law need a unanimous decision of the Council. The Commission therefore thought it 
appropriate to leave the control of decisions in these matters in the hands of the Member State 
in  which  recognition  and  enforcement  is  sought.  Consequently,  decisions  made  in  one 
Member State will be recognised before the courts of the Member State where enforcement is 
sought  on  the  basis  of  exequatur.  This  is  a  procedure  that  basically  consists  of  a  formal 

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Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, 
recognition  and  enforcement  of  decisions  and  authentic  instruments  in  matters  of  succession  and  the 
creation of a European Certificate of Succession, COM(2009) 154. 
The Brussels I Regulation, Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and 
enforcement  of  judgments  in  civil  and  commercial  matters,  OJ  L  12,  16.1.2001,  p.1.  A  proposal  for 
recasting the Brussels I Regulation was adopted on 14 December 2010, COM(2010) 748. 

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verification  of  the  documents  submitted  by  the  applicant,  as  happens  presently  in  civil  and 
commercial proceedings. 

These  new  provisions  are  a  considerable  step  forward  compared  with  the  current  situation 
where  each  Member  State  applies  its  own  procedural  rules  and  has  its  own  grounds  for 
refusing enforcement of foreign decisions, something which seriously hampers the movement 
of decisions in this area.  

At  a  later  stage,  once  the  implementation  of  the  proposed  measures  and  the  equivalent 
provisions  of  Regulation  Brussels  IIa  has  been  evaluated,  the  Commission  will  consider 
whether a simpler, more automatic procedure might be envisaged.  

7. 

CONCLUSIONS 

The two Regulations proposed are designed to simplify the lives of citizens in what are often 
difficult moments. They thus fulfil the undertakings made by the Commission in the report on 
European citizenship. 

They  will  provide  greater  legal  certainty  for  international  couples,  whether  married  or  in  a 
registered  partnership.  They  will  make  it  possible  to  identify  the  applicable  law  for  the 
division  of  property  and  the  relevant  jurisdiction  if  a  union  comes  to  an  end.  The  free 
movement  of  decisions  will  also  be  ensured  by  their  automatic  recognition  throughout  the 
Union, and there will be a uniform simplified procedure for having decisions enforced. 

These two proposals, taken with the existing EU law and the instruments under negotiation, 
will complete the current legal framework and provide the necessary consistency for judicial 
cooperation in civil matters, particularly family law. Like the other measures in this area, the 
proposals will not affect the Member States' substantive law on matrimonial property regimes 
and  the  property  consequences  of  registered  partnerships.  In  accordance  with  the  Treaties, 
substantive law remains a matter of national competence. 

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