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?

On the basis of Art. 10:52 of the Burgerlijk Wetboek (BW; Civil Code) there applies for the Netherlands the Hague Convention on the Law Applicable to Matrimonial Property Regimes 1978 (HC), which entered into effect as of 1 September 1992 and applies to marriages solemnised after 1 September 1992. Different rules apply for marriages solemnised before 1 September 1992. No bilateral conventions have been concluded by the Netherlands. However, there apply separate interregional rules with regard to the overseas areas belonging to the Kingdom of the Netherlands in the Caribbean. If no choice of law is made, then the applicable law is the law of the first common habitual residence of the spouses, when the spouses do not have common nationality (see Art. 4 para. 1 HC). For spouses with a common nationality (see Art. 15 HC) under certain conditions their national law applies (see Art. 4 para. 2 and Art. 5 HC). If the spouses have neither a first common habitual residence nor a common nationality, then there applies the law of the state with which, on the basis of all the circumstances of the case, the spouses are most closely connected (see Art. 4 para. 3 HC). The applicable law can change through naturalisation, immigration and after 10 years of residence in a particular country (see Art. 7 HC). This change has only effect for the future (Art. 8 HC). The change can be prevented by making a choice of law or concluding a marital agreement.

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 can, before or during the marriage, opt for a specific law to be applicable to their matrimonial property. They can opt for the law of the habitual residence of either spouse or for the law of the nationality of either spouse and for real property for the law of the place where the property is located (see Art. 3 and Art. 6 HC). The designation of a specific law must be expressly agreed or must unambiguously derive from a marital agreement (see Art. 11 HC). The latter is the case when reference is made to specific articles of the law in a marital agreement. The form of the choice of law follows the formal requirements for marital agreements and is governed by either the chosen law or the place where the choice of law is made (see Art. 13 HC). If during the marriage a choice of law is made or changed, then it applies as a starting point that there must be a settlement on the existing regime between the spouses.