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, Luxembourg’s national rules apply. Unless the spouses choose otherwise, the law applicable to their matrimonial property regime corresponds to the law of their nationality, if they share a common nationality. If they have different nationalities, the matrimonial property regime is governed by the internal law of the State in which both spouses established their first habitual residence after marriage (Article 4 of the Hague Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes the provisions were of which transposed into Luxembourg law by the Law of 17 March 1984).
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, spouses, even if they have a common nationality, may make a regulated and restricted choice as to the law applicable to their matrimonial property regime. They may designate one of the following laws: the law of any State of which either spouse is a national at the time of designation; the law of the State in which either spouse has his/her habitual residence at the time of designation; the law of the first State where one of the spouses established a new habitual residence after marriage (Articles 3 and 6 of the Hague Convention).
The designation of the applicable law must be by express stipulation, in the form prescribed for marriage contracts, or arise by necessary implication from the provisions of a marriage contract (Articles 11 and 13 of the Hague Convention). Article 1387 of the Civil Code (Code civil – CC) stipulates that the designated law must not contravene the accepted principles of morality or Articles 1388 et seqq. of the Civil Code.
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. In Luxembourg, matrimonial agreements must be drawn up by notarial act, in the presence and with the simultaneous consent of all the persons who are party to them or their representatives (article 1394 of the Civil Code).
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.
