International marriage; law applicable to matrimonial property regimes

International marriages

It starts at the beginning. You have met your one true love and it is time for the next step: to live together or to marry? Future spouses will, of course, beforehand discuss the manner in which they want to get married and in particular also where the solemnization of marriage will take place. Will it be a big wedding with all the friends and family in the Netherlands or will it be a more intimate wedding in a small village in the south of Italy?

If there is no prenuptial agreement

The discussions concerning the matrimonial property regime are a suppositious child, for which reason future spouses who are getting married and living in the Netherlands are automatically married in a limited community of property as a result of the current applicable law.

If no prenuptial agreement has been made, then agreements are also lacking about the law that the spouses have declared to be applicable to their matrimonial property regime (choice of law) and the designated court which may decide disputes (choice of forum). This means that the jurisdiction of the court and the applicable law must be determined on the basis of national legislation, regulations and conventions.

Consequences if there is no prenuptial agreement

For the married couples who are going to live in the Netherlands for the rest of their married life, it is quite simple. They fall within the scope of the Dutch matrimonial property law and in the event of a forthcoming divorce they can apply to the Dutch courts. This also applies for those married couples who only got married abroad but are residing in the Netherlands. For those couples the only important thing is that the marriage will be registered in the Netherlands.

But what about those spouses who are roaming around the world? Can they still apply to the Dutch courts for their divorce? And, maybe even more important, which law applies to them?

This last-mentioned question will be discussed hereinafter. For those married couples it is often much more complicated, simply because it pertains to an international marriage. It can even occur that the laws of various countries apply to one matrimonial property regime.

Which law applies to an international marriage?

There are many misunderstandings about the applicable law. For instance, many married couples think that the place of the solemnization of marriage is the determining factor. For a Spanish/German couple that was married in Madrid, but has thereafter taken up residence in Germany, it does not by definition mean that Spanish law applies. And it is often assumed that the nationalities of the parties is the determining factor. It is thought that Dutch law should apply anyway to a marriage of a Dutch couple residing in Dubai. However, this cannot be assumed just like that. To find out which law applies, it must first be considered whether the Convention on the Law Applicable to Matrimonial Property Regimes  or the Regulation applies. This can be simply determined by looking at the time at which the marriage has been solemnized.

The convention applies to marriage contracted after Sept. 1, 1992, and before Jan. 29, 2019. It applies to those who are married after Jan. 29, 2019, or who entered into prenuptial agreements after that date.

Marriages entered into after September 1, 1992 and before January 29, 2019 

The above international marriages are governed by the Marriage Property Convention 1978. This treaty is applied by the Dutch courts, regardless of whether the designated applicable law is the law of a state participating in the treaty. The treaty contains a complicated provision for applicable law. It is still relatively simple if the spouses do not have the same nationality. Indeed, in that case, the main rule is that the law of the first marital domicile is decisive. In other words, the law of the country where the spouses take up residence within six months of the marriage applies. For the Spanish/German couple married in Madrid, this means the following. If they move to Germany within six months of marriage to settle there, German law applies. However, if they first live in Madrid for a year and then move to Germany, Spain is the spouses' first marriage domicile and Spanish law applies.

If the spouses do have the same nationality, the main rule for those couples from the Netherlands is that the law of the common nationality applies. Thus, for two Dutch nationals married and living in Germany, in principle, Dutch law applies. However, this can change again if the Dutchmen continue to live in Germany for more than ten years. From then on, German law applies.

Nationality or country of residence?

Please note that not in all cases where spouses have the same nationality can the law of this nationality be followed. In fact, this differs from country to country and thus from nationality to nationality! This is where the concepts of "country of nationality" and "country of domicile" come into play. The Netherlands is a nationality country, which means that Dutch law applies to Dutch couples living abroad. France, for example, is a country of domicile as a result of which the law of common nationality cannot be applied to couples with French nationality. This is because residence countries apply the rule that connection must be sought to the law of the first marriage domicile. Therefore, the French couple that will reside in the Netherlands after the marriage is concluded will, in principle, be governed by Dutch law.

Marriage contracted after Jan. 29, 2019

Fortunately, the complicated rules of the Matrimonial Property Convention can be dispensed with for marriages newly concluded on or after Jan. 29, 2019. This is subject to the Matrimonial Property Regulation ((EU) 2016/1103).

Main rule: law of first marriage domicile

The main rule of the Regulation is that the law of the first marriage domicile applies. Therefore, even though both spouses have Dutch nationality, Dutch law does not apply if they go to live abroad shortly after the marriage is celebrated.

In the absence of a joint residence after the marriage ceremony, connection can be made to the common nationality. Suppose, for example, that two Dutch nationals marry, but after the marriage both work for an international organization in different countries for a year. In that case, there is no first marriage domicile and Dutch law applies to the matrimonial property regime. This only applies when the common nationality is already there at the time of the marriage.

In the absence of the common nationality, the country with which the spouses have the closest connection can be examined. This can be determined based on several circumstances. One important factor is the location of the marriage.

Conclusion

For those spouses who have not made a prenuptial agreement and therefore have not made a choice of law, the answer to the question of applicable law can still be quite a puzzle. Therefore, always contact a specialized family law attorney who can further advise on this.

Questions?

If you have any questions regarding this article, please contact Sandra Verburgt for further information.