If the marital property is split up after a divorce, this often leads to arguments. This has so far been particularly the case when husbands and wives have different nationalities and therefore different laws apply. In the event of divorce, […]
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If the marital property is split up after a divorce, this often leads to arguments. This has so far been particularly the case when husbands and wives have different nationalities and therefore different laws apply.
In the event of divorce, how will our marital property be divided? The search for an answer creates additional fuel between quarreling couples. Especially when different laws can be applied due to different nationalities.
The new goods law regulation of the European Union (EU) aims to remedy the situation. Questions and answers about the new rule:
Who does the EU Regulation on Goods and Goods apply to?
It has been in force since January 29, 2019. Therefore, it automatically applies to all couples who have or are getting married on this date. The prerequisite is that the marriage has a so-called international connection. This is the case when the partners “have different nationalities, are domiciled in different countries or have assets abroad”, explains Evelyn Woitge, the managing director of the Brandenburg Chamber of Notaries. 18 of the 28 EU countries apply the uniform regulation.
What does the regulation regulate and what does not?
In the case of binational marriages or marriages abroad, it has so far had to be clarified whether German or other national law is to be applied. The new requirement clarifies which legal system applies to what is known as matrimonial property law and which court is responsible.
Divorce, alimony, pension adjustment, child custody – none of this is covered by the requirement. It relates exclusively to the property regime.
What has changed?
So far, the common law of home at the time of marriage has primarily applied. If both partners were Italians, Italian property law applied. Since the end of January, citizenship has only played a subordinate role. Instead, “both spouses are subject to the law of their habitual place of residence,” says Anatol Dutta, professor at the Institute for International Law at Munich’s Ludwig Maximilians University.
In practice, the first common place of residence usually counts. For a German couple, for example, who go to Brussels immediately after the wedding, Belgian law automatically applies. For an Austrian-Dutch couple in Munich, for example, German property law would apply. Even if one of the partners returns to their home country during the separation phase.
What does first stay together mean?
Family lawyers like Maria Demirci from Munich equate the requirement with living in a shared apartment. How many days, weeks or months a married couple should live under one roof in order to meet the criterion “first stay together” is left open by the EU regulation. “That still has to be clarified in practice in court when a couple breaks up,” says Demirci.
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Is the regulation binding or are there other options?
The EU rule applies within the 18 states that apply the regulation. However, spouses can agree on a different solution by choice of law. To do this, they need a marriage contract. In the document, they themselves determine “which national property law should be applied,” says Demirci. There is a difference between the law of one of the home states and the law of the country in which both or one of the partners usually live at the time of the election.