Matrimonial property and international successions: two courses at the EFB (2022)

On March 29 and again on October 4, 2022, Justine Meyer and I taught private international law of matrimonial property regimes and successions at the Paris bar school, the École de formation des barreaux (EFB). The course followed one simple question: which court, and which law, for an international couple’s assets, during their lifetime and at death? Here are the key takeaways, along with the course materials.

The property regime: which court?

Everything turns on one date: January 29, 2019. Before then, the Brussels II bis Regulation did not cover the property consequences of marriage; French courts relied on national rules, Article 1070 of the Code of Civil Procedure extended to international cases, then, in the alternative, Articles 14 and 15 of the Civil Code. Since then, Regulation (EU) 2016/1103 has set up a hierarchy of jurisdictions among the participating Member States.

The court seized of a spouse’s succession has jurisdiction over the related matrimonial property regime (régime matrimonial). So does the divorce court, but only with the spouses’ agreement when its jurisdiction rests solely on the applicant’s residence or on residual rules. Otherwise, jurisdiction follows a cascade: the spouses’ habitual residence, their last common residence if one still lives there, the defendant’s residence, common nationality. As a last resort, the court where real property is located rules only on that property.

The property regime: which law?

The applicable law depends on the date of the marriage. For spouses married before September 1, 1992, case law looks for the law chosen, expressly or implicitly, giving particular weight to the first marital home, a presumption that other evidence can rebut. For those married before January 29, 2019, the Hague Convention of March 14, 1978 applies: a limited choice of law, failing which the law of the first habitual residence, and above all an automatic change of applicable law, for the future, when the spouses made neither a choice of law nor a marriage contract.

For later marriages, Regulation 2016/1103 seeks unity: one law for all assets, wherever located. Spouses may choose the law of either spouse’s habitual residence or nationality, in a dated and signed writing. Absent a choice, the law of the first common habitual residence after the marriage applies, then that of common nationality, then that of the closest connection. Corrective mechanisms remain: overriding mandatory provisions, public policy, exclusion of renvoi.

International successions: one law, a limited choice

For successions opened since August 17, 2015, the Regulation of July 4, 2012 breaks with the former French system, which subjected movable property to the law of the last domicile and real property to the law of its location. One law now governs the whole estate: that of the deceased’s last habitual residence, unless there are manifestly closer ties with another State. The court with jurisdiction is in principle that of the same residence.

A choice is possible but limited: one may only choose the law of one’s nationality, in a disposition of property upon death. That choice excludes renvoi, which otherwise applies only in strictly defined cases, where the designated law is that of a non-EU State. It also makes it possible to designate the courts of that nationality. The law of the place where assets are located and public policy may still set aside the normally applicable law.

The case study: advising a Franco-British couple before marriage

Participants had to advise, in a written legal opinion, a French national living in London and his future wife, an American. After ten years together, they wish to marry and protect themselves against the consequences of divorce or death: a French marriage contract or an English prenuptial agreement, a will, a trust for the children. Twenty questions structured the answer, concluding with draft deeds to be prepared in partnership with the notary.

The answer key sets out clear reflexes: do not sign two contracts, as this may call the validity of the first into question; if the agreement must be recognized in England, have each spouse advised by their own lawyer and attach a detailed statement of each spouse’s assets and income; in a prenuptial agreement, distinguish what concerns the property regime from what concerns support obligations.

Sessions

• October 4, 2022Course at the EFB, in initial and continuing training, with Justine Meyer: private international law of property regimes and successions, and a planning case study for a Franco-British couple.
• March 29, 2022First session of the same course at the EFB, with Justine Meyer, on the same case study.

Key takeaways

1. 1Two key dates for the property regimeSeptember 1, 1992 and January 29, 2019 determine the applicable rules, for jurisdiction as for the governing law.
2. 2The divorce court, under conditionsIt has jurisdiction over the property regime, but sometimes only with the spouses’ agreement.
3. 3Beware of automatic change of lawWithout a contract or a choice of law, the law of the regime may have changed during the marriage for spouses married between 1992 and 2019.
4. 4One law for the estateThat of the last habitual residence, unless the will chooses the law of nationality.
5. 5One contract, designed for abroadSeparate legal advice and a detailed statement of assets support its recognition.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.