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?

Marriages celebrated prior to 1 September 1992 are subject to ordinary law while those contracted after this date come under the Hague Convention of 14 March 1978 on the law applicable to matrimonial property regimes.

The law applicable to matrimonial property regimes for spouses married prior to 1 September 1992 is in principle determined by the location of the first matrimonial domicile. The law thus designated governs all property relations between spouses regardless of where their assets are located. This connection criterion is permanent: the law of the first matrimonial domicile applies throughout the duration of the marriage, even if the spouses move to another State.

For marriages celebrated after 1 September 1992, the Hague Convention of 14 March 1978 applies to property relations between spouses, with the exception of the primary regime which remains governed by the French provisions applicable under mandatory provisions (Art. 212-226 CC). Where the spouses have not specified any choice prior to the marriage, the applicable law is in principle that of their first habitual residence. Contrary to ordinary law, the Hague Convention stipulates three cases where the applicable law automatically changes (Art. 7 paragraph 2):

  • where the spouses establish their residence in the State of their common nationality;
  • where they reside more than 10 years in a State after the marriage;
  • for spouses who had not established their habitual residence on the territory of the same State after the marriage (and whose matrimonial property regime was consequently subject to the law of the State of common nationality), where they establish their habitual residence in the same State.
  • This automatic change shall have effect solely in the future (however, Art. 8 allows spouses to submit all of their assets to the new law, provided that this choice does not adversely affect the rights of third parties).

    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 matrimonial property regime may be governed by the law designated by the spouses prior to their marriage. For marriage contracts drawn up prior to the entry into force of the Hague Convention of 14 March 1978 (1 September 1992), spouses could choose any applicable law. Since the entry into force of the Hague Convention, the designation is limited to one of the three laws specified in Art. 3: the law of a State of which either spouse is a national at the time of designation, the law of the State in which either spouse has his/her habitual residence at the time of designation, or the law of the first State where one of the spouses establishes a new habitual residence after marriage. The Hague Convention also allows spouses to submit all or some immovables to the law of the place where these immovables are situated (Art. 3 paragraph 2). The Hague Convention requires that the designation of the applicable law be expressly stipulated or that it arise by necessary implication from the provisions of the marriage contract (Art. 11).

    Spouses may also change the law applicable to their matrimonial property regime during their marriage. In this event, the Hague Convention applies even to spouses married prior to its entry into force (Art. 21). Here, designation is limited to one of the two laws specified in Art. 6: the law of any State of which either spouse is a national at the time of designation or the law of the State in which either spouse has his/her habitual residence at the time of designation. Act 97-987 of 28 October 1997 Convention allows spouses to submit all or some immovables to the law of the place where these immovables are situated (Art. 6 paragraph 2). The new law applies retroactively to the date of the marriage, subject to the rights of third parties (the spouses may, however, oppose retroactive application by liquidating their previous matrimonial property regime). Act 97-987 of 28 October 1997 amended the Civil Code to adapt it to the provisions of the Hague Convention and to organise the disclosure regarding the change of matrimonial property regime obtained through the application of a foreign law.