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?
On the basis of Art. 10:52 Burgerlijk Wetboek (BW; Civil Code) there applies for the Netherlands the Hague Convention on the Law Applicable to Matrimonial Property Regimes 1978 (HC), which entered into effect as of 1 September 1992 and applies to marriages solemnised between 1 September 1992 and 28 January 2019. Different rules apply for marriages solemnised before 1 September 1992. No bilateral conventions have been concluded by the Netherlands. However, there apply separate interregional rules with regard to the overseas areas belonging to the Kingdom of the Netherlands in the Caribbean. If no choice of law is made, then the applicable law is the law of the first common habitual residence of the spouses, when the spouses do not have common nationality (see Art. 4 para. 1 HC). For spouses with a common nationality (see Art. 15 HC) under certain conditions their national law applies (see Art. 4 para. 2 and Art. 5 HC). If the spouses have neither a first common habitual residence nor a common nationality, then there applies the law of the state with which, on the basis of all the circumstances of the case, the spouses are most closely connected (see Art. 4 para. 3 HC). The applicable law can change through naturalisation, immigration and after 10 years of residence in a particular country (see Art. 7 HC). This change has only effect for the future (Art. 8 HC). The change can be prevented by making a choice of law or concluding a marital agreement.
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), but only if they had their habitual residence longer in that State than in their first common habitual residence.
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)?
The spouses can, before or during the marriage, opt for a specific law to be applicable to their matrimonial property. Until 28 January 2019, they can opt for the law of the habitual residence of either spouse or for the law of the nationality of either spouse and for real property for the law of the place where the property is located (see Art. 3 and Art. 6 HC). The designation of a specific law must be expressly agreed or must unambiguously derive from a marital agreement (see Art. 11 HC). The latter is the case when reference is made to specific articles of the law in a marital agreement. The form of the choice of law follows the formal requirements for marital agreements and is governed by either the chosen law or the place where the choice of law is made (see Art. 13 HC). If during the marriage a choice of law is made or changed, then it applies as a starting point that there must be a settlement on the existing regime between the spouses.
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.
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.
These new rules apply to all spouses whenever they were married, if they make the choice after 29 January 2019.
