The interplay between the Regulations on property regime

and other EU legal instruments in the field of family matters

Prof. Mirela Župan, J.J.Strossmayer University of Osijek Croatia

mzupan@pravos.hr

• Increasing migration – number of cross-border couples constantly raising

• Interplay of universal - regional level of harmonization / unification

• Multiplicity of international legal instruments:

▪ Hague conference on PIL

▪ United Nations (child related)

▪ Council of Europe

▪ European Union

+

▪ Soft law unification

HCCHCOE

EU

• Legislative activity and procedure in EU civil justice:

- family law remains the competence of EU countries

- EU can legislate on family law if there are cross-border implications

- all EU countries have to agree (unanimity)

- multispeed Europe is fostered

- some Member States have special treatment (Protocol on position of Denmark, UK..)

- enhanced cooperation (not all Member States are Participaing States!)

• Atomized approach of EU civil justice results with:

- sector specific regulations – narrow scope of application

- mosaic of legal regimes to be applied in one single scenario

... various methods of unification

JURISDICTION RECOGNITION /

ENFORCEMENT

APPLICABLE LAW

Brussels II bis (2201/2003) divorce matters:

-Rome III, 1259/2010

-national PIL

parental responsibility:

-Hague 1996

-Hague 1980

- national PIL

Maintenance obligations regulation (4/2009) + Hague protocol (2007)

Succession regulation (650/2012)

Marriage/civil partnership property regimes regulation (2016/1104, 2016/1103)

EU international family acquis - interplay at various family related disputes

.... Legal sources

.... Legal sources

• this interplay is typical for internal and international cases, but more problems arrise in cross-border cases:

• are parties with cross-border family life able to identify legal issues they might face in divorce, custody, maintenance, division of matrimonial property cliams?

• is transnational legislation clear framework for international couples?

• is there predictability and legal certainty for international couples facing interrelated issues?

„the multitude, complexity and interrelationship of Union instruments in family law have led to practical difficulties, such as the lack of understanding on the part of citizens and practitioners, or confusion on the extent of jurisdiction of the competent court pursuant to the Brussels IIa Regulation on the part of the parties.” (Delloit Study of 2015 on 2201/2003 regulation)

Delimitation among legal sources – basic principle

with respect to regulations

▪ BIIbis – Maintenance

▪ notion of “ancillary matter”

- CJEU A v B. (C-184/14)

✓Each matter has to be viewed separately – even if in national law it is a combined issue!

with respect to national law / matters outside the scope of EU regulations

▪Representation in administrative procedure

- CJEU Gogova v lliev (C-215/15)

▪ Successions

- CJEU Matouškova (C-404/14)

✓Isues retained in national sphereare treated as such!

• Atomized approach of EU civil justice- results with mosaic of legal regimes to be applied in one single scenario- interplay commes at stake at various family related disputes- typical interaction of matrimonial property issues:

maintenanceobligations

matrimonial property

successions

divorce

- Interaction appears on the level of:

- jurisdiciton

- diversity of jurisdictional grounds in divorce, parental responsibility,maintenance matters, and matters concerning property consequences ofmarriage and registered partnerships may result in proceedings in multipleMember States for interrelated family matters

- applicable law

- characterization

- preliminary issues needs to be solved

- common provisions - particularly false parallel proceedings

• MPR comes as the last instument of EU family law (at the moment!)

• Being a successor in the legislative circle it intends to find proper balance with the instuments already at stage

• Its overal aim:

• to lean on previously adopted rules

• to provide efficiency of cross-border procedures

• to give more legal certainty to international couples

• recitals 32-36 MPR

Concentration of jurisdiction

• EU has already employed concentration of the jurisdiction to achieve efficiency:

• in Brussels II a regulation

• joining the parental esponsibility issue to the matrimonial matter – art. 12.

• in maintenance regulation

• joining the maintenance matter to status issue

• joining the maintenance matter to parental responsibility issue

• In MPR it is done in several layers

Possible scenarios- jurisdiction

• Divorce

• usually three potentially competent MS courts may be seised for divorce:

• jurisdiction depends mainly on the will of one of the spouses - rush to the courts!

• part of litigation tactics

• Divorce + matrimonial property

• in the majority of cases forum of matrimonial property regimes follows forum for divorce (Art. 5, par. 1)

• concentration of divorce and matrimonial property only upon agreement of the parties in several instances …

the agreement of the spouses is required in order to seise the same Member State court for the dissolution of the matrimonial property regime

a) if:

• divorce proceedings are commenced according to either:

• alternative ground in Art.3: court of a MS of which the applicant is habitually resident and had resided there for at least a year immediately before the application was made (art. 3. par. 1. indent 5);

• alternative ground in Art.3: court of a MS of which the applicant is a national and the applicant is habitually resident there and had resided there for at least six months immediately before the application was made (art. 3. par. 1. indent 6);

• seised pursuant to art. 5 of Brussles II a in cases of conversion of legal separation into divorce;

• seised pursuant to Art. 7 of of Brussles II a in cases of residual jurisdiction.

b) if:

• Parties have chosen the law of the conclusion of the marriage (art .7.)

• Member State whose Law is applicable pursuant to art. 22 or 26

• If no court of a Member State has jurisdiction pursuant to Article 4 or 5, list of hierarch of jurisdiction applies:

• habitual residence of the spouses

• last habitual residence of the spouses, insofar as one of them still resides there

• habitual residence of the spouses

• spouses' common nationality

• This scenario may happen when property matter arrises in conection to divorce procedure, but there is no agreement needed pursuant to art. 5/2

• Concentration to divorce proceedings under Art. 6. possible but only for some grounds of jurisdiction of Art. 3. Bruss IIa

• last 3 indents are not included!

• Additional layer of the problem of concentration of divorce + matrimonial property:

• Agreement of the parties may secure concentrated jurisdiction, but only ones the divorce has already begun!

• Since Bruss IIa has no prorogatio fori no legal security beforehand exist!

• concentration counts only for pending divorces!

• If the divorce procedure finished – no possibility to dissolve matrimonial property in the same fora!

Successions + matrimonial property - jurisdiction

• court is seised in matters of the succession shall have jurisdiction to rule on matters of the matrimonial property regime arising in connection with that succession case

• BUT if the property issue arises later – ones the succession case is over, combined jurisdiction under art. 4 is no longer available!

• What if the court seized of succession later declines jurisdiction – is the attraction of the MP procedure still active and provides jurisdiction to that court?

• Rules of SR and MPR relate to international jurisdictions

• Application national rules may lead to partial concentration

• if under domestic system of local jurisdiction these procedures may not be joined?

• if under domestic system the succession is handled by the notary and matrimonial property by the court

• Jurisdiction in succession may be based on any of the grounds in SR - Art. 4-11!

• Not always serving the proximity principle to the affiliated case of MP!

• Departing from lex connexitatis in scenario:

• A) If a deceased has chosen the applicable law of his nationality (Art 22 SR) and the „parties to a succession procedure” agree to confer the jurisdiction to the same court

• What is a surviving spouse is not a party to successions procedure?

• No clear answer – it should be interpreted that no concentration of SP and MP procedure is possible without the consent/agreement of the surviving spouse!

• B) what if jurisdiction for succession is exercised only over certain immovable property (Art. 12-13)

• No clear answer – matrimonial property should be joined only in respect of that property!

Applicable law

• EU law tend to achieve synchrony of fora and ius

• Employed with matrimonial regime / successions / MPR

• Synchrony not always achieved

Private international law institutes – „general part”

- Regulations lean on uniform rules on jurisdiction/applicable law/recognition

- “Rome 0-Regulation“ – „EU PIL code” not drafted yet

- questions of „general part” regulated in a context of specific matter

• leads to inconsistency within the European

• facilitates an evolutionary development of the General Part PIL

• no national attitue but genuine European understanding

• BUT some rules exist:

• in the new regulations (successions, matrimonial propoert, reg.partnersproperty)

• derive of CJEU interpretations

Characterisation or classification

• deals with the question of which substantive provisions fall in the scope of the respective conflict-of-law rule

• Conflict of-law rule can solely be determined autonomously

• irrespective of the national legal concept of lex fori or lex causae,

• under consideration of the implied conflict-of-law interests

• purpose of the respective substantive provisions, which implies specific conflict-of-law interests for their application

• Delineation - where does a specific issue fit?

• each Regulation exphasized clearly issues out of the scope

• Divorce: exclusion of „(e) maintenance obligations; (f) trusts or succession;”

• Succession : exclusion of (a) the status of natural persons, as well as family relationships and relationships deemed by the law applicable to such relationships to have comparable effects;(b) the legal capacity of natural persons; (c) questions relating to the disappearance, absence or presumed death of a natural person; (d) questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage; (e) maintenance obligations other than those arising by reason of death; (g) property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to point (i) of Article 23(2);

• Matrimonial Property : (a) the legal capacity of spouses; b) the existence, validity or recognition of a marriage; c) maintenance obligations; d) the succession to the estate of a deceased spouse;” f) the entitlement to transfer or adjustment between spouses, in the case of divorce, legal separation or marriage annulment, of rights to retirement or disability pension accrued during marriage and which have not generated pension income during the marriage;”

- each Regulation has its own positive scope of application

SR Article 23 Par. 1 states that the law determined pursuant to Article 21 or Article 22shall govern the succession as a whole

MPR (18) The scope of this Regulation should include all civil-law aspects of matrimonialproperty regimes, both the daily management of matrimonial property and the liquidation ofthe regime, in particular as a result of the couple's separation or the death of one of thespouses. For the purposes of this Regulation, the term ‘matrimonial property regime’ should beinterpreted autonomously and should encompass not only rules from which the spouses may notderogate but also any optional rules to which the spouses may agree in accordance with theapplicable law, as well as any default rules of the applicable law. It includes not only propertyarrangements specifically and exclusively envisaged by certain national legal systems in the caseof marriage but also any property relationships, between the spouses and in their relationswith third parties, resulting directly from the matrimonial relationship, or the dissolutionthereof.

• can an issue of delimination still appear?

YES!

• problem of characterization is subject to review by the EU Court ofJustice

• ECJ can only interpret European legal acts, but not at the same timeprovisions originating from national law, which are only subject tocharacterization

• cooperation between the Member State courts

Delimination of pure property dispute - matrimonial property

- C-67/17 Todor Iliev v Blagovesta Ilieva

- liquidation of a motor vehicle purchased in marriage duration but on the nameof one of the spouses

- Article 4(1) of Regulation No 1215/2012 „persons domiciled in a MemberState shall, whatever their nationality, be sued in the courts of that MemberState”

• Matter previosly dealt with C-143/78,de Cavel

• because of the specific nature of certain matters, including the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession and disputes relating to such matters were excluded from the scope of the Brussels Convention

• Matter clearly in the scope of matrimonial property

Delimination of successions – matrimonial property• C-558/16, Mahnkopf

• German statutory regime of matrimonial property is a community of accrued gains

• each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends

• § 1371(1) of the BGB equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse(Zugewinnausgleich)

• is this rule matter of successions or property?

• achievement of the objectives of the European Certificate of Succession would be impeded if ECS did not include full information relating to the surviving spouse’s rights regarding the estate

• national provision which prescribes, on the death of one of the spouses, a fixed allocation of the accrued gains by increasing the surviving spouse’s share of the estate falls within the scope of that regulation

Delimination of maintenance obligation – matrimonial property

• Old topic known in EU context of C-220/95 Van den Boogaard v Laumen

• CJEU had to give general guidelines on how to decide whether an English financial order should be characterized as an order of maintenance or as an order of division of property

• The Amsterdam court tried to find a basis to enforce the decision under the Brussels Convention and therefore it referred to the CJEU.

• nature of the claim should be decisive in characterizing claims as relating to maintenance as opposed to matrimonial property

• Possible interaction of maintenance and property issue if lex causae is a foreign law with unknown institutes

• mahr (the bride price in Islamic law) can be characterised in two ways

• if the mahr is intended to provide the divorced wife with the everyday necessities of life, it seems natural to consider it to be a kind of lump-sum maintenance,

• if the mahr appears to have more to do with the equalisation of the property situation of the spouses, it is closer to conflict rules on the division of matrimonial property

Belgian Court of First Instance, X v Y - AR 10/754/A - Rb. Hasselt, 27 December 2011.

The case file speaks of spouses of Dutch nationality that were married underthe system of separation of property. The plaintiff initiated divorceproceedings. The defendant filed a counterclaim for maintenance after thedivorce. The last marital residence of the parties was in Belgium, also the placewhere the plaintiff was still resident at the time of the introduction of thedivorce proceedings.

The Belgian court based its jurisdiction over the divorce proceedings accordingto Art 3(1)(a) of the Brussels IIa Regulation. Belgian law was applicable todivorce pursuant to Art 55(1) of the Belgian Code of Private International Law.

The claim for liquidation and division of the marital property regime was settledaccording to Belgian national PIL rules. The courts of Hasselt had jurisdictionand applied the Dutch law.

Finally, the Court had jurisdiction to hear the counterclaim for maintenance onthe basis of Art 3 of the Maintenance Regulation. Belgian law was applicableaccording to the Hague Maintenance Protocol.

Incidental or preliminary questions• it deals with the question of which conflict-of-law rules should govern legal

relationships provided in the scope of an applicable substantive rule as a legal requirement, egz.

• granting a spouse´s right of inheritance requires a valid marriage between the spouse and the deceased; or

• granting a order in dissolution of the property requires a valid marriage; or

• solving a succession matter depends on the dissolution of matrimonial property

• SR: since the validity of a marriage is not a question of succession, it cannot be answered automatically by lex successionis determined by the conflict-of-law rules of successions regulation

• similar: MPR “should not apply to other preliminary questions such as the existence, validity or recognition of a marriage, which continue to be covered by the national law of the Member States, including their rules of private international law.”

• Since the matrimonial property regime is not a question of succession, it cannot be answered automatically by lex successionis determined by the conflict-of-law rules of successions regulation• the question of the law applicable to such an issue has to be asked anew without respect

to conflict-of-law rules governing the so-called main question

• if the incidental question is subject to a legally binding decision, which has tobe recognized in the concerning member state – it is res iudicata

Two possible scenarios:

• if the main question is governed by the lex fori - incidental questions arising in this context have to be answered in accordance to the conflict-of-law rules of lex fori.

• if foreign law is applicable as lex causae - ? whether the incidental question has to be answered:• Independently (conflict of law of lex fori)

• Dependently (conflict of law of lex cause)

• Coherent results can only be achieved, if incidental questions are always answered in accordance to the conflict-of-law rules of the lex fori.

Interplay – role of the CJEU

▪ Regulation

- directly applicable in MS

- prevails over national law

- requires autonomous interpretation guided by CJEU

▪ Autonomous or „Europautonomous” interpretation

▪ National courts must reftrain from reffering to national concepts / national case law

▪ Systematic and purposive interpretation

▪ Each individual article is to be interpreted in the context of a Regulation as a whole; in accordance to objectives (Recitals)

▪ Final and exclusive interpretation authority is CJEU

32

• Referance procedure concerns

• only EU law;

• no questions of national law, even if Regulation refers to national law!

• only relates to pending proceedings

• Any court of MS is entitled but courts of last instance (no ordinary judicialremedy can be given) are obliged to refer

• Decision given in a same factual scenario obliges other Member States courtsas well!

Interplay – alredy set interpretation

• Formal validity of the agreement under Art. 5 para. 2

• could be read in conjunction to Art. 12 of the Brussels II a

• „Habitual residence” of a spouse / registered partner

• already established interpretation under the EU civil justice regime

• duration / regularity / conditions / reasons for the stay

• C 452/93, Magdalena Fernandez: habitual residence is the place in which the person has established permanent or habitual centre of his interest;

• C 90/97 Swadling: persons center of interest counts, regardless of durationof the stay !

• Joint procedural rules same/similar in EU civil law regulations

• Interpretation given in any of those is valid for MPR, egz.

• seizing of a court

• lispendens

• provisional measures etc...

- overal ratio of FREE CIRCULATION OF JUDGEMENTS

- embeded on principle mutual trust

- no review of the jurisdiction of the court of other Member State!

▪ Consequences of (non)application

▪ No possibility to refuse recognition if a judgement is based on non-existent/fault ground of jurisdiction/contains untruee statements

▪ CJEU Case C-455/15 PPU; C-386/17 Liberato

▪ Possible objections by party if regulatons are not applied

▪ Any available in national remedy (appeal – revision- constitutional claim? )

Overriding EU principlesNon-discrimination and citizenship of the Union - Article 21 (ex Article 18 TEC) TFEU

„1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States,….”

• Nationality – whenever used as a factor in the regulation, in event of multiple/double, issue falls out of the scope

Recital MPR: (50) Where this Regulation refers to nationality as a connecting factor, the question of how toconsider a person having multiple nationalities is a preliminary question which falls outside the scope of thisRegulation and should be left to national law, including, where applicable, international Conventions, in fullobservance of the general principles of the Union. This consideration should have no effect on the validity of achoice of law made in accordance with this Regulation.

• National interpretation is however under the scrutiny of CJEU rulings

• C-148/02 Garcia Avello / C- 168/08 Hadadi v Mesko

• Prohibition of discrimination based on nationality

Prohibition of discrimination based on sexual orientation

- Charter of Fundamental Rights, Art. 7, Art. 53 para 2

- ECHR rulings in Vallianatos and Others v. Greece, Orlandi and Others v. Italy

• if the applicable law recognizes a family form unknown to the lex fori – may they disregard application of that law?

• C-673/16 Coman-Hamilton ruling

• Coman (Romanian citizen) and Hamilton (American) married in Belgium in 2011

• They decided to move to Romania

• Romanian immigration office denied the right of Hamilton to reside with his spouse on Romanian territory

• Directive on citizens’ and their family members’ rights

• Since Romanian family law does not recognise same sex marriages, its immigration office did not treat Hamilton as an EU citizen’s spouse

• the CJEU holds that definition of the spouse is uniform for all Member States and neutral with regard to sex!!

• a Member State cannot refuse Hamilton’s right to free movement and residency even if it does not recognise same-sex marriages.

Other complementary EU acquis

Public documents

• Regulation (EU) 2016/1191 of the European Parliament and of the Council of 6 July 2016 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 OJ L 200, 26.7.2016, p. 1–136

• applies from 16 February 2019

• abolishes the apostille requirement for certain public documents• birth, name, marriage, registered partnership, domicile or the absence of a

criminal record

• simplifies formalities concerning their certified copies and translations

• multilingual standard form from the authorities of the EU country where the public document was issued

Taking of evidence

• Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001.

• in civil proceedings taking of evidence is not restricted to the boundaries of a Member State• Court has to take evidence in a Member State of residence

• Court has to hear witnesses or experts in other Member States

• Court may have to visit a scene of occurrence situated in another Member State

Serving documents

• Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 OJ L 324, 10.12.2007

• provides for different ways of transmitting and serving documents:

• transmission through transmitting and receiving agencies,

• transmission by consular or diplomatic channels,

• service by postal services and direct service