This article is part of our special report Reform of EU family law.
New rules on property regimes for international couples will enter into force next year. Věra Jourová, the EU’s Justice Commissioner, says the new legal system is “clear, robust and flexible” and hopes more countries will join them once they see the benefits for their citizens.
Věra Jourová is the commissioner for justice, consumers and gender equality. She replied in writing to questions from EURACTIV.com.
Next year, new EU rules on property regimes of international couples will start to apply. What will be the main advantages for Europeans?
In June 2016, the Union adopted rules to help international couples, whether in a marriage or a registered partnership, to manage their property on a daily basis and also share it in the unfortunate case of divorce or death. These rules will apply as of 29 January 2019.
Currently, in the framework of enhanced cooperation, 18 member states have agreed to apply these new rules: Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria, Finland and Cyprus. Any other member state may join the rules at any time.
In case of divorce or death of a partner, the lives of 16 million international couples can become even more difficult through burdensome procedures and unclear legal situations cross-border.
The new rules will help international couples know what courts should deal with matters concerning their property and what national law should apply to such matters.
They will also facilitate the recognition and enforcement of a judgment in one Member State on property matters given in another Member State.
These rules will fill an important gap in the field of Union family law and will allow the full operation of the Union regulations on divorce and succession.
The new regime would give the option to decide what national rules or courts apply in case of divorces or inheritance. At the same time, not all EU member states are part of the new framework.
Is it the new system clear and robust enough to address discrepancies?
Yes, the system is clear, robust and flexible as well. Let me explain.
Non-participating member states will keep their current status. This means that non-participating member states will continue to apply, as they do today, their national law to cross-border situations dealing with the property regimes of marriages and registered partnerships in order to determine what court should deal with a case on these matters and what law should apply to such matters.
Non-participating member states will also continue to apply, as they do today, their national law to the recognition and enforcement of decisions on these matters given in one of the participating Member States.
For their part, participating member states will continue to apply, as they do today, their national law to the recognition and enforcement of decisions given in a non-participating member state.
The situation in the area of the property regimes of international couples will therefore be similar to the situation in other civil justice areas which do not cover all member states, such as divorce and succession.
In any event, the application of the regulations on the property regimes of marriages and registered partnerships will not depend on the nationality of the members of the couple, that is, on whether or not the members of the couple are nationals of a participating member state.
The authorities of the participating member states will apply the regulations on the property regimes of marriages and registered partnerships to all citizens that bring a matter before them regardless of the nationality of the citizens.
There is therefore no potential negative impact of the enhanced cooperation on the internal market.
The new rules will apply only to 18 member states. Some countries including Poland feared that the institutions of marriage and partnership would be altered.
Are you hopeful that other countries would join soon? Or would there be ‘two Europes’ when it comes to family and property laws in the EU?
The first time that the Union used the procedure of enhanced cooperation was to adopt the Rome III Regulation on the law applicable to divorce. The Rome III Regulation was adopted by 14 member states and, subsequently, three others joined the enhanced cooperation.
The regulations on the property regimes of international couples were adopted by 18 member states, and I am hopeful that additional member states will join the enhanced cooperation when they perceive the benefits of the regulations for citizens.
Indeed, the larger the number of members that participate in the enhanced cooperation the larger the number of citizens that will benefit from the regulations.
Last June, the European Court of Justice ruled that certain rights and benefits of spouses are granted regardless of what national laws say when it comes to gay marriages.
What will be the impact of this ruling on countries that did not join the new regime?
In accordance with the EU Treaties, member states are competent in matters of substantive family law. This means that it falls within the competence of member states to define family and marriage and, therefore, to decide whether or not they allow the marriage of persons of the same sex under their national law.
The recognition in a member state of a marriage concluded in another member state is also currently governed by national law. However, member states must apply their national law respecting Union law, including the case law of the Court of Justice, on free movement of citizens within the Union.
On 5 June 2018, the Court of Justice gave a judgment in the Coman case. The judgment does not affect the competence of member states to legislate on substantive family law and, therefore, to decide whether or not to allow same-sex marriage.
As the Court pointed out, the legal issue at the heart is not that of legalisation of marriage between persons of the same sex but that of the freedom of movement of a Union citizen.
Member states are free to provide or not for marriage for persons of the same sex in their internal legal order. Nevertheless, member states may not limit the freedom of movement of a Union citizen, by refusing to grant his or her same-sex spouse, a derived right of residence in their territory.
Given that the ruling in the Coman case does not affect the competence of member states to legislate on substantive family law, the decision of member states on whether or not to join the enhanced cooperation should not be affected by this ruling.
The goal of the new framework aimed at clarifying what rules and courts are applicable to cross-border couples and properties. But the situation will become more complex after the UK’s departure from the EU. Are you concerned about the impact of Brexit in this area?
The UK decided not to join into the enhanced cooperation that led to the adoption of the two regulations on the property regimes of international couples.
As is the case of other Union instruments on civil law, non-participating member states are treated as a non-EU country for the purposes of these regulations.
This means that the treatment of the UK in this context will not change after Brexit.