Tuesday 19. October 2021
#141 - September 2011


Commission tries to tackle the issue of property rights for ‘international couples’


It is estimated that about 16 million ‘international couples’ currently exist in the European Union. One of the most relevant aspects of such situations concerns the regulation of the property rights of these couples.


The European Commission recently presented two legislative proposals aimed at regulating the criteria for determining in cross-border situations the jurisdiction and the applicable law, as well as the recognition and enforcement of decisions, for the property consequences of registered partnerships and for matrimonial property regimes respectively. Despite the laudable objective of improving the legal clarity of the legislative framework concerning the management and division of couples’ property, some elements of the texts are somewhat questionable.


Property consequences of registered partnerships

The first proposal does not seem to adequately protect the legal systems of those Member States of the Union that do not recognise registered partnerships and could lead them to apply the law of States which foresee and regulate them. According to the text, considerations of public interest may allow the courts of a Member State to invoke overriding mandatory provisions which must be complied with in order to safeguard their political, social or economic organisation; and the same courts can set aside the foreign law in a given case where its application would be manifestly incompatible with the forum’s public policy. However both options are deemed acceptable only 'in exceptional circumstances'. Both possibilities are also strictly denied where their application would be contrary to Article 21 of the Charter of Fundamental Rights (Non-discrimination). Such safeguards may also be undermined by the fact that, according to the proposal, the courts of a Member State cannot set aside the law which is applicable according to the Regulation merely on the grounds that the forum’s public policy does not recognise registered partnerships. These provisions are only partially compensated by the fact that, in the cases identified by the proposal, the courts of a Member State can decline jurisdiction if the domestic law does not provide for registered partnerships. It is, on the other hand, a positive that no provisions on the choice of the applicable law by the members of the union were included and that de facto cohabitations were opportunely kept out of the scope of the text.


Matrimonial property regimes

The second proposal also presents some debatable aspects. The text does not contain any provision covering cases in which certain kinds of ‘marriage’ do not exist in a given Member State. The Regulation on the enhanced cooperation concerning the law applicable to divorce and legal separation more correctly states that none of its provisions can oblige the courts of a Member State - whose law does not deem the marriage in question valid for the purposes of divorce proceedings - to pronounce a divorce by virtue of its application. Secondly, the proposal leaves to citizens the possibility to choose the law applicable to their matrimonial property regimes. This may lead to the phenomenon of ‘law shopping’, as the concrete risk exists that choices will be determined by mere convenience. The fact that it would become possible to dispose freely of the patrimonial effects deriving from marriage could also devalue the institution of marriage and its peculiarity vis-a-vis any other contract. As for the forum's public policy, the proposal negatively repeats the restrictive reference to Article 21 of the Charter.


Success is linked to some corrections

The two analysed proposals are based on Article 81(3) of the Treaty on the Functioning of the European Union (establishment of measures concerning cross-border family law, with unanimity required in the Council). However, in the light of the doubts expressed above, the texts may not feature the proper balance needed to obtain the backing of each delegation in the Council. A suitably solid protection for the options chosen by each Member State in the matter at issue will be essential. A possible enhanced cooperation, at least as regards the proposal on registered partnerships, has been hinted at. While this confirms the perplexities raised by the Commission's approach, a repeat of the solution adopted for the divorce/legal separations Regulation would not be a good sign, creating the basis for a two-speed Union in a delicate area like family law and placing undue pressure on those Member States that would not join the process. This further strengthens the cause of an amended approach as a necessity, if the texts are to successfully be passed into Union law.


Alessandro Calcagno

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