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?
For marriages concluded until 28 January 2019, Austrian national rules apply. If the spouses do not themselves make a choice of law, the law to be applied with regard to the personal legal effects of the marriage at the time of the marriage is applied (§ 19 Internationales Privatrechts-Gesetz, IPRG). This corresponds to the common or, in the absence thereof, the last common personal statute (= nationality), under the condition that one of the spouses has retained it (§ 18 para. 1 Z 1 IPRG). Otherwise one applies the law of the state in which both spouses have their habitual residence or, in the absence thereof, the law of the state in which the two had their last common habitual residence, under the condition that one of the spouses has retained it (§ 18 para. 1 Z 2 IPRG). If the spouses never had neither a common personal statute nor a common habitual residence, the law of the state to which they have the closest relation will be applied (§ 1 IPRG).
Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules apply to determine the law applicable to all marriages concluded as from 29 January 2019 and to marriages concluded before the date of entry into force where the spouses have chosen a law applicable to their matrimonial regime as from 29 January 2019.
In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.
- The spouses’ first common habitual residence after the conclusion of the marriage.
- Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
- Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.
By way of exception and provided that one of the spouses so requests, the competent judicial authority may decide that the law of a State other than that of the first common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).
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)?
Until 28 January 2019, the spouses have the possibility of freely choosing the law to be applied to their property. Insofar as this does not violate the Austrian ordre public (§ 6 IPRG), the spouses are unrestricted in this choice - the chosen law does not have to demonstrate a relationship to the marriage. The choice of law must be made expressly (§ 19 IPRG).
Regulation (EU) 2016/1103 provides for the possibility to choose the law of one of the States of which at least one of the spouses is a national or the law of the habitual residence of either spouse at the time of the choice as the law applicable to their matrimonial property regime (Art. 22). This choice may only be validly made as from 29 January 2019 within the framework of a marriage contract or an agreement on the choice of applicable law and in compliance with the formal requirements laid down in Article 23, meaning in written form, dated and signed by both spouses. The form of a notarial act is required in case the choice of law is made within the framework of a marriage contract.
Finally, the choice of law applicable to the matrimonial property regime during the marriage will only have effect for the future, unless otherwise agreed by the spouses and without prejudice to the rights of third parties.
