3 Applicable law, jurisdiction and mutual
recognition in matrimonial property regimes
|Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition
|17 July 2006
|Deposited in Parliament
|26 July 2006
|Basis of consideration
|EM of 6 September 2006
|Previous Committee Report
|To be discussed in Council
|Legally and politically important
|Not cleared; further information requested
3.1 The Green Paper forms part of the European Community's ongoing
programme towards the establishment of a common judicial area
based on the principle of mutual recognition of judgments. The
issue of a legal instrument at EC level relating to matrimonial
property regimes was first identified in the 1998 Vienna action
plan. The Council and the Commission adopted the programme of
measures which included matrimonial property rights at the end
of 2000. The Hague Programme, adopted by the European Council
in November 2004, called on the Commission to submit a Green Paper.
3.2 The Commission Green Paper follows a previous Green Paper
on applicable law and jurisdiction on divorce matters. In the
preceding Green Paper, published in March 2005, the Commission
described the practical difficulties facing the increasing number
of "international couples who are divorced each year within
the European Union". In the case of divorce between spouses
of different nationalities, or resident in different Member States
or in a Member State of which there are different nationals, proceedings
may be initiated in more than one jurisdiction and several systems
of law may be in issue. The aim of the rules on applicable law,
often referred to as "conflict of laws rules", is to
determine which of the different laws will apply; jurisdiction
rules determine where proceedings should be initiated. In view
of the large number of divorces within the European Union, applicable
law and international jurisdiction in divorce matters affect a
large number of citizens.
3.3 The present Green Paper emphasises that there
are currently more than 5 million EU nationals who live outside
their own Member State and there were approximately 170,000 international
divorces in the Union each year, about 16% of all divorces. The
2002 Commission study,
from which the previous figures are drawn, also indicates that
there are about 2.5 million items of real property owned by spouses
and located in Member States different from their Member State
of residence. The very considerable differences in national substantive
law governing matrimonial property regimes following divorce,
together with the considerable variations in the cost of litigation,
can have very considerable effects on the results of property
settlements after divorce.
3.4 The Green Paper notes that matrimonial property
regimes have so far been excluded from the scope of Community
instruments, and that it is "currently not possible"
to harmonise the rules of substantive law. The Green Paper accordingly
examines the issue of the conflict rules under existing regimes
and explores avenues in which these may be improved. Member States
are invited to reply to a detailed Commission questionnaire which
outlines these avenues, together with options for future legislative
action at Community level. The questions cover the following areas
- What connecting factors should
be used to determine the law applicable to matrimonial property
- Should the same connecting factors be used for
all aspects of matrimonial property or could different factors
be used to apply different legal regimes to different aspects?
- Should spouses be allowed to choose the law applicable
to their matrimonial property regime and, if so, under what circumstances?
- Should such choice be possible at any time, before
and throughout the marriage or only at a specific time?
- Should a similar agreement allow these spouses
to choose the jurisdiction for proceedings governing the matrimonial
- Should registered partnerships be subject to
the same regime as regular marriages?
The Government's view
3.5 In her Explanatory Memorandum of 6 September
2006 the Minister (Ms Harriet Harman) cautiously outlines the
Government's position in the following terms:
"The underlying policy of the Commission is
to simplify and facilitate, through a variety of proposed means
including jurisdictional rules, proceedings settling matrimonial
property following marriage dissolution. In Europe, jurisdictions
have various property regimes that govern the ownership of property
following marital breakdown. This Green Paper also aims to look
at the issues concerning matrimonial property regimes and the
property consequences of other forms of union. In the UK, the
courts decide on the division of property on a case by case basis
when a marriage is dissolved. In Scotland there are prior and
legal rights on the death of a spouse where the survivor is entitled
to certain financial awards which cannot be defeated by testamentary
"The Green Paper raises questions concerning
conflict of laws, jurisdiction and recognition and enforcement.
In relation to the property aspects of divorce and dissolution
of other forms of union.
"This is an area of very considerable technical
complexity, and the differences in the law relating to matrimonial
property differs significantly among the various Member States.
The relatively high-level questions raised in the Green Paper
do not obviously reflect this concern.
"The Government will consider how best to respond
to the Green Paper and will keep the Scrutiny Committees informed."
3.6 The Government does not specifically address
the issue of subsidiarity which might arise from any future legislative
measure flowing from this Green Paper.
3.7 We thank the Minister for her preliminary
indication of the Government's reaction to the Green Paper. We
ask the Minister to explain under what legal base, if any, the
Commission may bring forward future legislative measures pertaining
to the applicable law regimes governing trans-national matrimonial
property proceedings. We also ask the Minister for further information
as and when the Government's position on the specific questions
raised by the Commission crystallises, and in any event, before
the Government formally replies to the Commission.
7 The study in comparative law in the rules governing
conflicts of jurisdiction and laws on matrimonial property regimes
and the implementation for property issues of the separation of
unmarried couples in the Member States, 30 April 2003, ASSER-UCL
Consortium http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm. Back