1 Which law applies?
1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?
If the spouses do not make a choice of law, the matrimonial property is governed by the law of the State on whose territory both spouses, after solemnisation of the marriage, establish their first habitual place of residence. If the spouses do not have a common place of residence in the same State, the applicable law is that of the State of which both spouses have the nationality upon the solemnisation of the marriage. In the other cases, the applicable law is that of the State on whose territory the marriage was solemnised. (Art. 51 Code D.I.P. – [Code de droit international privé = Code of Private International Law]). There are no international conventions that have to be respected with regard to specific countries.
1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?
The spouses have the possibility of choosing the applicable law and can designate one of the following legal regimes: (i) the law of the State on whose territory they, after the solemnisation of the marriage, establish their first habitual place of residence; (ii) the law of the State on whose territory one of them, at the time of the choice, has his/her habitual place of residence; (iii) the law of the State of which one of them has the nationality at the time of the choice (Art. 49 Code D.I.P.). The choice must be established in writing, dated and signed by both parties (Art. 52, para. 1 in fine Code D.I.P.). As a rule it applies that the choice has only prospective effects, but the spouses can also decide otherwise (Art. 50, para. 3 Code D.I.P.).
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Couples in Belgium
Current country: Germany