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?

The basic rules for the determination of the applicable law can be found in Act No. 91/2012 Coll. on Private International Law. According to Section 49 para. 3 of the Act on Private International Law, property relations between spouses are governed by the law of the state of the spouses’ residence. If the spouses have their habitual residence in different countries, their property relations shall be governed by the law of the state of which both spouses are citizens. If the spouses have different nationalities, such relations are governed by the Czech Law. This matter is also regulated by bilateral treaties on legal aid in civil, commercial and family matters concluded between the Czech Republic and former socialist states (e.g. Treaty with Bulgaria dated 25.11.1976, Treaty with Poland dated 21.12.1987, Treaty with the former Socialist Federal Republic of Yugoslavia dated 21.1.1964, Treaty with Romania dated 11.07.1994), where the connecting factor of nationality is decisive for the determination of the applicable law. The connecting factor of the spouses’ common residence is only taken into account if the spouses have different nationalities. The Treaty with the former Soviet Union signed on 12.8.1982 (binding in relation to Russia, Moldova, Kyrgyzstan and Georgia) and the Treaty with Ukraine dated 28.5.2001 provide for the connecting factor of the spouses’ common residence. The regulations contained in these international treaties shall be applied instead of the statutory regulation. Registered partnerships and similar relationships and their effects, including the modification of personal and property relations of partners, are governed by the law of the state in which the registered partnership or similar relationship was concluded (Section 67 para. 2 of the Act on Private International Law).

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)?

Under Section 49 para. 4 of the Act on Private International Law, spouses may agree that their property relations shall be governed by:

  • the law of the state of which one of the spouses is a national, or
  • the law of the state in which one of the spouses has his/her habitual residence, or
  • in case of real estate property, the law of the state where such property is located, or
  • the Czech law.

The agreement must be drawn up by a civil law notary in the form of an authentic instrument or a similar form, if the agreement is entered into abroad.