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?

Unless the future spouses choose otherwise, the law applicable to their matrimonial property regime corresponds to the law of their nationality, if they share a common nationality. If they have different nationalities, the matrimonial property regime is governed by the internal law of the State in which both spouses establish their first habitual residence after marriage (Article 4 of the Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes the provisions were of which transposed into Luxembourg law by the Law of 17 March 1984).

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)?

Future spouses, even if they have a common nationality, may make a regulated and restricted choice as to the law applicable to their matrimonial property regime. They may designate one of the following laws: the law of any State of which either future spouse is a national at the time of designation; the law of the State in which either future spouse has his/her habitual residence at the time of designation; the law of the first State where one of the spouses establishes a new habitual residence after marriage (Articles 3 and 6 of the Hague Convention).

The designation of the applicable law shall be by express stipulation, in the form prescribed for marriage contracts, or arise by necessary implication from the provisions of a marriage contract (Articles 11 and 13 of the Hague Convention). Article 1387 of the Civil Code (Code civil – CC) stipulates that the designated law must not contravene the accepted principles of morality or Articles 1388 et seqq. of the Civil Code.