«Russia and the World Community’s Respond to a Challenge of Instability of Economic and Legal Systems Materials of the International Scientific-practical Conference ...»
The parties are allowed to designate the applicable law, but spouses can select only a law with which they have a close connection. 66 The spouses may choose the applicable law from the following laws: the law of the State where the spouses are habitually resident at the time the agreement is concluded; or the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or the law of the State of nationality of either spouse at the time the agreement is concluded;
or the law of the forum. Once the spouses have determined the applicable law, they are bound by their choice until and unless they both agree to a modification. This may occur at any time before the court is seized. To ensure that spouses are aware of the implications of their choice, the agreement must be expressed in writing, dated and signed by the spouses. In the absence of such a choice, the law to be applied is objectively to be determined by the court. The following laws apply: the law of the State where the spouses are habitually resident at the time the court is seized; or the law of the State where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or the law of the State of which both spouses are nationals at the time the court is seized; or the law of the State where the court is seized. One of the main arguments of the Member States who chose not to engage in Rome III Regulation was that the proposed conflict of law rules might lead to the application of foreign law. Although Rome III Regulation accepts the outcome of applying foreign law, when the applicable divorce law fails to grant one of the spouses equal access to divorce or legal separation on grounds of her sex, even if that law has been chosen by the spouses, the law of the forum shall apply For example Slovak Republic still considers divorce to be a State controlled institution, which is irreconcilable with the notion of party autonomy.
Rome III Regulation, Article 4.
Rome III Regulation, Article 5.
Rome III Regulation, Article 7.
Rome III Regulation, Article 8.
instead (“safety mechanisms”). 69 The application of lex fori safeguards the fundamental principle of equality between spouses.
Another novelty is the harmonization of choice of the applicable law as to the maintenance obligation. Council adopted Regulation (EC) No 4/2009 of December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance (Maintenance Regulation). This Regulation applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity from 18 June 2011. The primary aim of the Maintenance Regulation is to simplify the enforcement of maintenance orders between European Union Member States as between signatories to the Hague Protocol. 70 However, the regulation contains also provisions relating to jurisdiction and applicable law which are more wide reaching. The law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol in the Member States bound by that instrument. 71 The Hague Protocol has been signed by all the Member States apart from the United Kingdom and Denmark. The The Hague Protocol applies even if the applicable law is that of a nonContracting State. 72 There is introduced party autonomy for the maintenance obligations in the Hague Protocol. 73 The maintenance creditor and debtor for the purpose only of a particular proceeding in a given State may expressly designate the law of that State as applicable to a maintenance obligation. This provision favours the applicability of the law of the forum. In addition, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation: the law of any State of which either party is a national at the time of the designation; the law of the State of the habitual residence of either party at the time of designation; the law designated by the parties as applicable, or the law in fact applied, to their property regime; the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation. In the absence of such a choice, there is a general rule that maintenance obligations are governed by the law of the State of the habitual residence of the creditor, save where the Hague Protocol provides otherwise.
Documents under negotiation In Member States there also exist great disparities between the applicable rules of substantive law and private international law governing the property effects of marriage or registered partnerships. In July 2006 the Commission adopted a Green Paper on the conflict of laws in matters of matrimonial property Rome III Regulation, Article 10.
In the framework of The Hague Conference on Private International Law, the European Union and its Member States took part in negotiations which led to the adoption on 23 November 2007 of the Convention on the International Recovery of Child Support and other Forms of Family Maintenance (Hague Convention) and the Protocol on the Law Applicable to Maintenance Obligations (Hague Protocol). Both those instruments should therefore be taken into account in this Regulation.
Maintenance Regulation, Article 15.
Hague Protocol, Article 2.
Hague Protocol, Articles 7-8.
regimes, including jurisdiction and mutual recognition. 74 This launched wideranging public consultations, the results of which confirmed the need for European legislation, both for matrimonial property regimes and the property consequences of registered partnerships.
In March 2011 the Commission published two draft regulations dealing with the Private international law on the effects on property rights of marriage and registered partnerships. Because of the distinctive features of marriage and registered partnerships, and of the different legal consequences resulting from these forms of union, the Commission proposed two separate regulations, one on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes,75 and the other on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships. 76 Since in only fifteen Member States same-sex couples are allowed to formalize their relationship it is to be expected that the regulation on the property consequences of registered partnerships will be adopted under the enhanced cooperation procedure.
The Commission's proposals set out to answer the question which law is applicable to the liquidation of a matrimonial property regime or the property consequences of a registered partnership. Different approaches are proposed for marriage and for registered partnerships because of the specific features of each institution. Married spouses are given the option of choosing the applicable law. Their choice is limited, however, to prevent them from choosing a law with no connection to their marriage. The choice is between the law of their common habitual residence or that of their country of nationality. The proposal also contains a list of connecting factors to identify the applicable law in cases where no law has been chosen. If the spouses change their habitual residence from one Member State to another, they may, for example, easily change the law applicable to their matrimonial property regime. The same freedom is not however proposed for registered partners. The law applicable to the property consequences of registered partnerships is clearly defined in the proposal. It is the law of the State where the partnership was registered. This rule will have the advantage of making it clearer which law applies to a couple in a registered partnership and what the possible property consequences might be in the event of their separation.
The expansion of the European Union, and increasing mobility within it, have led to more and more people moving from one Member State to another to work or to retire, and owning property in another Member State. The laws of the Member States governing who is entitled to what of the deceased’s property and how that estate is to be administered differ fundamentally. This makes dealing Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, COM(2006) 400, 17 July 2006.
The proposal for a Council Regulation of 16 March 2011 on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011)126.
The proposal for a Council Regulation of 16 March 2011 on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011)127.
with a succession with cross-border implications potentially very complex. The difficulties facing those involved in a transnational succession mostly flow from the divergence in substantive rules, procedural rules and conflict rules in the Member States. To simplify these matters, there is a clear need for the adoption of harmonised European rules. In 2005 the Commission issued a Green Paper on succession and wills. 77 In October 2009 the Commission brought forward their proposal for a regulation to simplify the rules on cross-border succession. The proposal includes rules which prescribe that the same law should be applicable to a given succession as a whole, irrespective of the nature and the location of the assets belonging to the estate. According to the proposal, the criterion of the deceased’s habitual residence at the time of his or her death will determine which law will be applied to the succession case, unless the deceased has indicated another decision. Although the choice of law in succession matters is not found in the laws of most Member States, the proposal introduces the possibility for individuals to stipulate in their wills that the law of their own nationality should apply to their succession when they die.
Conclusion For over a decade, European private international law has been under construction. Some parts of this legislative edifice are completed and in use, some parts are in the midst of construction, and others are still on the drawing board. The existing European Union law and the instruments under negotiation provide the necessary consistency for judicial cooperation in civil matters within Union.