Régimes Matrimoniaux dans le Monde

In November 2015, following the entry into force of the Rome III Regulation on June 21, 2012, the French trade magazine Actualité Juridique Famille (AJ Famille) published an overview of divorce law in 30 states selected by the editors of the aforementioned magazine under the title Dossier "Divorce dans le Monde." The Rome III Regulation determines the law applicable to divorce. This EU regulation came about through the so-called enhanced cooperation procedure, which means that EU member states have the choice of whether or not to join it. Incidentally, the Rome III Regulation does not apply to the Netherlands. That does not mean, however, that this regulation is not of interest to the Netherlands. After all, spouses can also choose the law of a member state that does not participate in the EU Regulation.

Two years later, Actualité Juridique Famille publishes another overview of different legal systems, this time an overview of matrimonial property law in 21 states selected by the editors under the title Dossier "Régimes Matrimoniaux dans le Monde".

Applicable law to matrimonial property regimes

The reason for this is that in more than a year from now, on January 29, 2019, two new EU Regulations on property law will come into force: the Matrimonial Property Law Regulation (Vo 2016/1103) and the Partnership Property Law Regulation (Vo 2016/1104). These Regulations will, however, apply in the Netherlands. Therefore, these Regulations also have implications for Dutch International Family Law practice. Until then, the Hague Matrimonial Property Convention 1978, which provides conflict rules for the applicable law on matrimonial property regimes, will apply in the Netherlands. In case of an international divorce in the Netherlands, Dutch law does not automatically apply, but it may very well be that the matrimonial property law of another country applies to the settlement of the matrimonial property regime.

A simple choice of law for Dutch law in a divorce agreement is also not enough. This choice of law must be made in the same form as a prenuptial agreement in the Netherlands, and therefore in a notarial deed under penalty of nullity of the choice of law. It is therefore of the utmost importance for the family lawyer to be alert to the correct application of the conflict-of-law rules regarding the applicable law for the settlement of the matrimonial property regime in an international divorce. Incorrect application of the conflict rules could have far-reaching consequences. For example, consider a distribution in accordance with the Dutch community of property in a situation where the applicable foreign law does not provide for a community of property, but excludes any community of property by operation of law.

The December 2017 edition of AJ Famille published the matrimonial property laws of 9 states: Germany, China, United States of America (California), Greece, Israel, Italy, Monaco, the Netherlands and Sweden.

The chapter on Dutch Matrimonial Property Law was written by Sandra Verburgt.

The next edition will publish the matrimonial property law of the following states: Algeria, Argentina, Brazil, Canada (Quebec), Spain, Morocco, Poland, Russia, Switzerland, Tunisia, Turkey and Ukraine

Published: 4 January 2018 in International, International family law
Please contact Sandra (S.L.A.) Verburgt
Régimes Matrimoniaux dans le Monde