Clarifying the rules applicable to property regimes for Europe’s international couples
3 Mar 2016 01:51 PM
The European Commission adopted yesterday proposals to clarify the rules applicable to property regimes for international married couples or registered partnerships.
These proposals will establish clear rules in cases of divorce or death and bring an end to parallel and possibly conflicting proceedings in various Member States, for instance on property or bank accounts. In short, it will bring more legal clarity for international couples. Since it was not possible to reach unanimity among 28 Member States on proposals originally brought forward in 2011, the Commission is now going ahead with 17 Member States willing to join this initiative through an enhanced cooperation.
First Vice-President Timmermans said yesterday: "This is about giving certainty to thousands of European couples –whether married or in registered partnerships – about what happens to them and their families if their dream of a life together does not work out. I wish we had been able to take this forward with all Member States as the Commission had proposed, but today's proposals mean we can help at least some of the people concerned to manage at the most difficult times."
Vera Jourová, EU Justice Commissioner said yesterday: “In case of divorce or death of a partner, the lives of 16 million international couples can become even more difficult through burdensome administrative procedures and unclear legal situations: what will happen to my house if I divorce and my spouse is of a different nationality? Which court do I turn to? The new proposed rules will bring legal clarity and ease the complicated process of dividing up joint assets no matter where they are located. This will facilitate the lives of the couples concerned and help them save around €400 million a year of extra costs. Today we pave the way for those Member States willing to go forward with this important initiative."
These proposals will:
- clarify which national court is competent to help them manage their property or distribute it between them in case of divorce, separation or death (jurisdiction rules);
- clarify which law shall apply when the laws of several countries could potentially apply to the case (rules on applicable law);
- facilitate the recognition and enforcement of a judgment in one Member State on property matters given in another Member State.
As the 28 Member States failed to reach the required unanimity in the Council to adopt the initial proposals made in 2011, 17 Member States have requested enhanced cooperation to adopt this legislation. They represent 67% of EU population, and a majority of international couples who live in the European Union.
The non-participating Member States will continue to apply their national law (including their rules on private international law) to cross-border situations dealing with matrimonial property regimes and the property consequences of registered partnerships.
On 16 March 2011, the Commission adopted the two initial proposals for regulations dealing with the property regimes of international couples, one for married couples and the other for registered partnerships. As the proposals concern family law, they had to be adopted by unanimity in the Council.
In December 2015, the Council concluded that it was not possible to reach unanimity among 28 Member States for the adoption of the two regulations. 17 Member States (Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and Finland) therefore requested the Commission to propose a decision authorising the establishment of enhanced cooperation between themselves on the property regimes of international couples, covering both marriages and registered partnerships.
Enhanced cooperation allows a group of at least nine member states to implement measures if all 28 Member States fail to reach agreement. Other EU countries keep the right to join when they want (Article 331 TFEU).
As more and more citizens live outside their home country, there are currently around 16 million international couples in the European Union. Out of the 2.4 million new marriages in 2007, 13% (310,000) had an international element. Similarly, 41,000 of the 211,000 registered partnerships in the EU in 2007 had an international dimension. Parallel legal proceedings in different countries, complex cases and the resulting legal fees cost an estimated €1.1 billion a year.
The adoption of the decision authorising enhanced cooperation requires a qualified majority of Member States within the Council and the consent of the European Parliament. The adoption of the two regulations implementing the enhanced cooperation requires unanimity by the 17 Member States participating in enhanced cooperation and the consultation of the European Parliament. The other 11 Member States are free to join the enhanced cooperation at any time.
Proposal for an enhanced cooperation, Proposal for a regulation on matrimonial property regimes, Proposal for a regulation on patrimonial property, available here
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