Select Committee on European Scrutiny Thirty-Seventh Report

3 Applicable law, jurisdiction and mutual recognition in matrimonial property regimes



COM(06) 400

Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition

Legal base
Document originated17 July 2006
Deposited in Parliament26 July 2006
DepartmentConstitutional Affairs
Basis of considerationEM of 6 September 2006
Previous Committee ReportNone
To be discussed in CouncilNot applicable
Committee's assessmentLegally and politically important
Committee's decisionNot 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.

The document

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,[7] 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 amongst others:

  • What connecting factors should be used to determine the law applicable to matrimonial property regimes?
  • 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 property?
  • 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 provisions.

"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 Back

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Prepared 26 October 2006