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?
According to the legal practice, the property relations between spouses in Denmark are governed by the law of the country of the husband's habitual residence at the time the marriage is entered into. However, the law of the country of the husband's new habitual residence is applied, if the husband changes his habitual residence in immediate connection with the marriage. According to Danish law, "habitual residence" is the place where a person lives with the intention to stay; a person retains his/her habitual residence even if he/she lives in another country for a while.
In relation to the Nordic countries (Finland, Iceland, Norway and Sweden) the law applicable to the spouses' property relations is governed by the Nordic Convention on Marriage. According to Article 3 of the Convention, the property relations between spouses who were citizens of a contracting state at the time the marriage was entered into shall be governed by the law of the contracting state in which the spouses establish their habitual residence after entering into marriage. If both spouses later settle in a different contracting state and live there for at least two years, then the law of this state shall be applicable. If both spouses had their habitual residence there previously during the marriage, or if both of them are citizens of this state, then the law of this state shall apply as soon as the spouses settle there. (Nordic Convention on Marriage, Amendment Agreement of 2006)
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)?
According to the legal practice, spouses cannot choose the law applicable to their property relations.
However, spouses to whom the Nordic Convention on Marriage is applicable may, among other things, agree that the law of a contracting state in which one of them has his/her habitual residence or of which one spouse is a citizen at the time the contract is concluded shall be applicable to their property relations. This choice of law shall be valid with respect to its form, if at the time it was entered into it fulfilled the formal requirements under the law which was applicable to the spouses' property relations under the Convention, or fulfilled the formal requirements under the law of the contracting state of which both spouses were or one of the spouses was a citizen. If this law does not contain formal requirements for choice-of-law agreements, then the validity of such an agreement shall be judged according to the formal requirements for agreements between spouses on separate property. Danish law does not provide for any formal requirements for choice-of-law agreements. (Nordic Convention on Marriage, Amendment Agreement of 2006)
