Universal application
Article 20
The law designated as applicable by this Regulation shall be applied whether or not it is the law of a Member State.
Council Regulation (EU) 2016/1103 CHAPTER III — APPLICABLE LAW
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Unity of the applicable law
Article 21
The law applicable to a matrimonial property regime pursuant to Article 22 or 26 shall apply to all assets falling under that regime, regardless of where the assets are located.
Choice of the applicable law
Article 22
1. The spouses or future spouses may agree to designate, or to change, the law applicable to their matrimonial property regime, provided that that law is one of the following: (a) the law of the State where the spouses or future spouses, or one of them, is habitually resident at the time the agreement is concluded; or (b) the law of a State of nationality of either spouse or future spouse at the time the agreement is concluded. 2. Unless the spouses agree otherwise, a change of the law applicable to the matrimonial property regime made during the marriage shall have prospective effect only. 3. Any retroactive change of the applicable law under paragraph 2 shall not adversely affect the rights of third parties deriving from that law.
Formal validity of the agreement on a choice of applicable law
Article 23
1. The agreement referred to in Article 22 shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. If the law of the Member State in which both spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. 3. If the spouses are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for matrimonial property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. 4. If only one of the spouses is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for matrimonial property agreements, those requirements shall apply.
Consent and material validity
Article 24
1. The existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it pursuant to Article 22 if the agreement or term were valid. 2. Nevertheless, a spouse may, in order to establish that he did not consent, rely upon the law of the country in which he has his habitual residence at the time the court is seised if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.
Formal validity of a matrimonial property agreement
Article 25
1. The matrimonial property agreement shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. If the law of the Member State in which both spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. If the spouses are habitually resident in different Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements for matrimonial property agreements, the agreement shall be formally valid if it satisfies the requirements of either of those laws. If only one of the spouses is habitually resident in a Member State at the time the agreement is concluded and that State lays down additional formal requirements for matrimonial property agreements, those requirements shall apply. 3. If the law applicable to the matrimonial property regime imposes additional formal requirements, those requirements shall apply.
Applicable law in the absence of choice by the parties
Article 26
1. In the absence of a choice-of-law agreement pursuant to Article 22, the law applicable to the matrimonial property regime shall be the law of the State: (a) of the spouses' first common habitual residence after the conclusion of the marriage; or, failing that (b) of the spouses' common nationality at the time of the conclusion of the marriage; or, failing that (c) with which the spouses jointly have the closest connection at the time of the conclusion of the marriage, taking into account all the circumstances. 2. If the spouses have more than one common nationality at the time of the conclusion of the marriage, only points (a) and (c) of paragraph 1 shall apply. 3. By way of exception and upon application by either spouse, the judicial authority having jurisdiction to rule on matters of the matrimonial property regime may decide that the law of a State other than the State whose law is applicable pursuant to point (a) of paragraph 1 shall govern the matrimonial property regime if the applicant demonstrates that: (a) the spouses had their last common habitual residence in that other State for a significantly longer period of time than in the State designated pursuant to point (a) of paragraph 1; and (b) both spouses had relied on the law of that other State in arranging or planning their property relations. The law of that other State shall apply as from the conclusion of the marriage, unless one spouse disagrees. In the latter case, the law of that other State shall have effect as from the establishment of the last common habitual residence in that other State. The application of the law of the other State shall not adversely affect the rights of third parties deriving from the law applicable pursuant to point (a) of paragraph 1. This paragraph shall not apply when the spouses have concluded a matrimonial property agreement before the establishment of their last common habitual residence in that other State.
Scope of the applicable law
Article 27
The law applicable to the matrimonial property regime pursuant to this Regulation shall govern, inter alia: (a) the classification of property of either or both spouses into different categories during and after marriage; (b) the transfer of property from one category to the other one; (c) the responsibility of one spouse for liabilities and debts of the other spouse; (d) the powers, rights and obligations of either or both spouses with regard to property; (e) the dissolution of the matrimonial property regime and the partition, distribution or liquidation of the property; (f) the effects of the matrimonial property regime on a legal relationship between a spouse and third parties; and (g) the material validity of a matrimonial property agreement.
Effects in respect of third parties
Article 28
1. Notwithstanding point (f) of Article 27, the law applicable to the matrimonial property regime between the spouses may not be invoked by a spouse against a third party in a dispute between the third party and either or both of the spouses unless the third party knew or, in the exercise of due diligence, should have known of that law. 2. The third party is deemed to possess the knowledge of the law applicable to the matrimonial property regime, if: (a) that law is the law of: (i) the State whose law is applicable to the transaction between a spouse and the third party; (ii) the State where the contracting spouse and the third party have their habitual residence; or, (iii) in cases involving immoveable property, the State in which the property is situated; or (b) either spouse had complied with the applicable requirements for disclosure or registration of the matrimonial property regime specified by the law of: (i) the State whose law is applicable to the transaction between a spouse and the third party; (ii) the State where the contracting spouse and the third party have their habitual residence; or (iii) in cases involving immoveable property, the State in which the property is situated. 3. Where the law applicable to the matrimonial property regime between the spouses cannot be invoked by a spouse against a third party by virtue of paragraph 1, the effects of the matrimonial property regime in respect of the third party shall be governed: (a) by the law of the State whose law is applicable to the transaction between a spouse and the third party; or (b) in cases involving immoveable property or registered assets or rights, by the law of the State in which the property is situated or in which the assets or rights are registered.
Adaptation of rights in rem
Article 29
Where a person invokes a right in rem to which he is entitled under the law applicable to the matrimonial property regime and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.
Overriding mandatory provisions
Article 30
1. Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum. 2. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a Member State for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the matrimonial property regime pursuant to this Regulation.
Public policy ( ordre public )
Article 31
The application of a provision of the law of any State specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy ( ordre public ) of the forum.
Exclusion of renvoi
Article 32
The application of the law of any State specified by this Regulation means the application of the rules of law in force in that State other than its rules of private international law.
States with more than one legal system — territorial conflicts of laws
Article 33
1. Where the law specified by this Regulation is that of a State which comprises several territorial units each of which has its own rules of law in respect of matrimonial property regimes, the internal conflict-of-laws rules of that State shall determine the relevant territorial unit whose rules of law are to apply. 2. In the absence of such internal conflict-of-laws rules: (a) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the habitual residence of the spouses, be construed as referring to the law of the territorial unit in which the spouses have their habitual residence; (b) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to provisions referring to the nationality of the spouses, be construed as referring to the law of the territorial unit with which the spouses have the closest connection; (c) any reference to the law of the State referred to in paragraph 1 shall, for the purposes of determining the law applicable pursuant to any other provisions referring to other elements as connecting factors, be construed as referring to the law of the territorial unit in which the relevant element is located.
States with more than one legal system — inter-personal conflicts of laws
Article 34
In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons in respect of matrimonial property regimes, any reference to the law of such a State shall be construed as referring to the system of law or set of rules determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouses have the closest connection shall apply.
Non-application of this Regulation to internal conflicts of laws
Article 35
A Member State which comprises several territorial units each of which has its own rules of law in respect of matrimonial property regimes shall not be required to apply this Regulation to conflicts of laws arising between such units only.
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