This article is part of our special report Reform of EU family law.
The new regulations on property regimes for international couples were welcomed on Tuesday (23 October) by professionals and academists as a step forward that will benefit European citizens, but some questions remain ahead of their entry into force in January 2019.
In 2016, 18 member states decided to move forward and clarify the applicable rules and courts in case of divorce or the decease of one of the spouses for handling the property of international marriages or registered partnerships in the EU.
The participating countries in the enhanced cooperation are Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria, Finland and Cyprus.
Around 16 million were living in the bloc in 2011, according to the European Commission,
“We are very happy to see these regulations”, said Christiane Wendehorst, president of the European Institute of Law during a conference on this topic held in Brussels on Tuesday.
In her view, the two new laws represent an “achievement” that will bring “great benefits” to European citizens.
These are ambitious regulations, given the level of harmonisation that would bring, added Patrick Wautelet, a professor at the University of Liege.
“We like new rules that solve more problems than they create”, summarised Paolo Pasqualis, an Italian notary and former president of Notaries of Europe.
But despite the general consensus on the progress made, Ilaria Viarengo, a professor at the University of Milan, pointed out that “some questions” remain open.
The new rules aim to harmonise the procedure for those member states that were part of the enhanced cooperation when dealing with the property regimes of international couples.
After four years of negotiations, 10 member states refused to move forward with the majority as some of them were concerned about the impact of the new rules on the recognition of marriages, in particular of gay couples.
The new rules introduced procedures to clarify the applicable law and the competent court. However, some issues would require further clarification when it comes to implementing the new rules, including how to deal with non-participating countries.
Some lack of clarity was due to the political sensitivity of the topic, as the definition of marriage or registered partnerships was not included in the regulation for not interfering with national law.
“A lot of leeway was given to member states in this field”, said Wautelet.
However, a landmark decision by the EU Court of Justice on a case brought by a Romanian gay couple, whose freedom of movement was limited because their marriage was not recognised in the country, was seen an early signal of further harmonisation down the road.
In the longer term, Wautelet predicted that EU judges would dislike cases where marriages are not recognised across the Union, reducing in practice the leeway given to member states.
In the new rules, the applicable law prioritises the national law of where the spouses live, and secondly their common nationality.
But if the couple lacks a common residence or common nationality, or when one or both have double nationality, the new rules also leave room for interpretation.
“The discretion is going to exist”, commented Pedro Carrión, a public notary in Spain.
In order to address some of the shortcomings of the regulation and facilitate the work of professionals, Carrión proposed to issue certificates to clarify what the couple’s regime is and what it implies in the applicable national law, both if they have chosen it and if it is applicable in the absence of choice.
His proposal was welcomed by many of his peers.
“It would state the matrimonial regime, if you are separate property system or community property system, and it would be very helpful for those who are not law experts”, said Pasqualis.
For example, bankers would know what spouses’ signatures are required for different procedures, depending on the regime.
Cristina González, a professor at the University of Barcelona, agreed that this certificate would be “meaningful”.
However, she warned that people should first get informed of their regimes and their consequences, a role that notaries could play. In Spain, notaries are also allowed to marry couples.
“People don’t know what is a matrimonial regime, and even if they do, they are not familiar with theirs”, Pasqualis pointed out.
The issue of the certificate was not raised during the long negotiations, Commission officials commented.
Salla Saastamoinen, director at Directorate-General Justice at the European Commission, said that the institution will collect all issues raised during the implementation.
But she recalled that this is only the beginning of a long process, given that member states will only start applying the new rules next January.
The EU executive also poured some cold water on finetuning the rules any time soon, given how difficult it was to reach an agreement and the benefits that the new rules would already bring once they are in place.