International marriage: applicable law on matrimonial property regimes

International marriage

It all starts at the beginning. You have met the love of your life and the time has come to take the next step: moving in together or getting married? Naturally, future spouses discuss how they want to get married and, most importantly, where the wedding will take place. Will it be a big wedding with all your friends and family in the Netherlands or something more intimate in a village in southern Italy?

No prenuptial agreement

Discussions about matrimonial property regimes are often overlooked, which means that future spouses who marry and continue to live in the Netherlands are automatically married in a limited community of property under current law.

In the absence of a prenuptial agreement, there is also no agreement on the law that the spouses choose to apply to their matrimonial property regime (choice of law) and the court that may decide on disputes (choice of forum). This means that the jurisdiction of the court and the applicable law must be determined on the basis of national laws, regulations and treaties.

Consequences of not having a marriage contract

For couples who intend to live in the Netherlands for the rest of their lives, the situation is quite simple. They will be subject to Dutch matrimonial property law and will have access to the Dutch courts in the event of divorce. The same applies to couples who were married abroad but live in the Netherlands. For them, it is only important that the marriage is registered in the Netherlands.

But what about spouses who travel all over the world? Can they still turn to the Dutch courts in the event of a divorce? And perhaps more importantly, which law will apply to them?

This last question will be addressed below. For these couples, the situation is often much more complicated, simply because it is an international marriage. It may even be the case that the law of several countries applies to a single matrimonial property regime.

Which law applies to an international marriage?

There are many misconceptions about which law applies. For example, many couples believe that the law of the place where the marriage took place applies. For a Spanish-German couple who married in Madrid but then settled in Germany, this does not necessarily mean that Spanish law applies. It is also assumed that the nationality of the parties is decisive. It is assumed that Dutch law should apply to a marriage between a Dutch couple living in Dubai. However, this cannot simply be assumed. In order to find out which law applies, it must first be determined whether the Matrimonial Property Convention or the Matrimonial Property Regulation applies. This can be determined simply by looking at the date on which the marriage was contracted.

The Convention applies to marriages contracted after 1 September 1992 and before 29 January 2019. It applies to those who marry after 29 January 2019 or who enter into a prenuptial agreement after that date.

Marriages contracted after 1 September 1992 and before 29 January 2019

The 1978 Matrimonial Property Convention applies to the above-mentioned international marriages. This Convention will be applied by the Dutch courts, regardless of whether the designated applicable law is the law of a State party to the Convention. The Convention contains a complex provision on applicable law. It is relatively simple if the spouses do not have the same nationality. In that case, the main rule is that the law of the first marital domicile applies. In other words, it is the law of the country where the spouses take up residence within six months of the marriage. For the Spanish-German couple married in Madrid, this means that If they move to Germany to settle down within six months of the marriage, German law will apply. However, if they first live in Madrid for a year and then move to Germany, Spain will be considered the spouses' first marital domicile and Spanish law will apply.

If the spouses have the same nationality, the main rule for Dutch couples is that the law of the common nationality applies. So if two Dutch nationals are married and live in Germany, in principle Dutch law will apply. However, this can change if the Dutch nationals live in Germany for more than ten years. From then on, German law applies.

Nationality or country of residence?

Please note: that not all cases where spouses have the same nationality can be governed by the law of that nationality. This varies from country to country and therefore from nationality to nationality! This is where the concepts of 'country of nationality' and 'country of residence' come into play. The Netherlands is a country of nationality, which means that Dutch law applies to Dutch couples living abroad. France, for example, is a country of residence, which means that French spouses cannot be subject to the law of their common nationality. Countries of residence apply the rule that the law of the first marital domicile must be applied. In principle, therefore, Dutch law applies to French spouses who move to the Netherlands after getting married.

Marriages contracted after 29 January 2019

Fortunately, the complicated rules of the matrimonial property regime do not apply to marriages concluded on or after 29 January 2019. These marriages will be governed by the Matrimonial Property Regulation ((EU) 2016/1103).

Main rule: the law of the first matrimonial home

The main rule of the Regulation is that the law of the first marital domicile applies. Even if both spouses have Dutch nationality, Dutch law will not apply if they move abroad shortly after the marriage.

If there is no common residence after the marriage, the common nationality can be used as a basis. For example, suppose two Dutch nationals get married, but after the marriage they both work for an international organisation in different countries for a year. In this case, there is no first marital domicile and Dutch law applies to the matrimonial property regime. This only applies if they already have a common nationality at the time of the marriage.

If there is no common nationality, the country with which the spouses have the closest connection can be determined. This can be determined on the basis of various circumstances. One important factor is the place where the marriage was contracted.

Conclusion

For spouses who have not concluded a prenuptial agreement and have therefore not made a choice of law, the answer to the question of which law applies can still be quite a puzzle. You should therefore always consult a specialist family lawyer who can advise you on this matter.

Questions or more information?

Do you have any questions about this article or do you need legal advice? Please contact Sandra Verburgt in the International Family Law Department. She will be happy to assist you.